### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE July 16, 2003 Session
ANTHONY DA RRELL HINES v. STA TE OF TENNESSEE
Direct Appeal from the Circuit Court for Cheatham County No. 9852 Robert E. Burch, Judge

No. M2002-01352-CCA-R3-PD -Filed January 23, 2004

The petitioner, An thony Dar rell Hine s, convic ted of fir st degr ee felo ny m

urder a nd sentenced to death for a 1985 homicide, appeals from the denial of his petition for post-conviction relief, alleging that counse l were ineffective at his 1986 trial and 1989 resente ncing hearing, that women wer e excluded from bot h juries, and that imposition of the death penalty violate s his rights under the federal and state constitution s. The pos t-conviction court denied the petition after an evidentiary hearing . Followi ng our r eview, w e affir

m the deni al. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the court, in which J OE G. R ILEY and T HOM AS T. W OODA LL , JJ., joined.

Donald E. Dawso n, Post-Conviction Defender; and Jon Joseph Tucci, Assistant Post-Conviction Defend er, Nas hville, Te

nnessee , for the

appella nt, Anthon

y D arrell H

ines.

Paul G. Summers, Attorney Gene ral andReporter ; Michael E. Moore , Solicitor Genera l; Angele M. Gregory , Assistant Attorney General; Dan M. Alsobrooks, District Attorney Gene

ral; and B. Dent Morriss, Assistant District Attorney Gene ral, for the appellee, State of Tennessee

. OPINION

I. BACKGROUND

The petitione

r, Anthon y D arrell Hines, wa s origin ally

tried in 19 86 in the Cheatham Co unty Circuit Co urt fo r the murder of Katherine Jean Jenkins. The jury found him guilty of first deg ree f elony murder and sentenced him to death. Although the petitioner’s 1986 conviction f or firs t degree felony murder

was affirmed on direct

appeal by the

Tennessee Supreme Court, the case was remanded for resentencing beca

use of erroneous jury

instructions. Statev. Hines , 758 S.W.2d 515 (Tenn. 1988).-2-

On remand, the Cheatham County jur y ag ain sentenced

the petitioner

to death, finding three aggravating

circumst ances: “ [t]he [petitio ner] was p reviousl y c onvicted

of one or more felonies, other than the present charge, which involve the use or threat of violence to the person,” Tenn. Code Ann. § 39-2-203(i)(2) (1982); “[t]he murder was especially heinous, atrocious, o r cruel in that it involved torture or depravity of mind,” id. § 39-2-203(i ) (5) (1982); and “[t]he murder was committed while the

[petitione

r] was eng aged in

committin g, or

was an accomplice in the commission of, or wa s attempti ng to co mmit, or wa s fleeing after c ommi tting or

atte mpting to commit, an y fi rs t d eg re e m ur de r, ar so n, ra pe , r ob be ry, bu rg la ry, la rc en y, ki dn ap pi ng , a ir cr af t p ir ac y, or unlawful throwing, placingor discharging of a destructive device or bomb,” id. § 39-2-203(i)(7) (1982). Subsequently, the Tennessee Supreme Court affirme d the petitioner’sconvicti on and de ath sentence, and the United States Supreme Court denied certiorari. State v. Hines , 919 S.W.2d 573 (Tenn. 1995), cert. denied , 519 U.S. 847, 117 S. Ct. 133, 136 L. Ed. 2d 82 (1996).

The petitioner fileda petition for post-conviction relief on March 4, 1997, which was twice amende d. O n May 9, 20 02, af ter evi denti ary hearin gs, th e post -conv icti on cou rt fil ed its findi ngs of fact and conclusions of law and entere d an order deny ing the petition.

A. Proof Presented at 1986 Trial

The following proof, introduced at the petitioner’s original trial in 1986, was set out by our supreme court in affirming the petitioner’s conviction:

Between 1:00 and 1:30 p.m. on 3 March 1985 the body of Katherine Jean Jenkins was discovered wrapped in a sheet in Room 21 of the C eBon Motel off Inter state 40 at Kingston Springs. The victim was a maid at the motel and had been in the process of cleaning the room when she was killed. Her outer clothing had been pulled up to her breasts. Her panties had been cut or torn in two pie ces an d were found in another area of the room. A $20 bill had been placed under the wrist band [sic] of her watch.

The cause of death was multiple stab woun ds t o the chest. Four deep, penetrating wounds, ranging from 2.5 inches to 6.4 inches in depth, ha

d been inf

licted ab out the victim's chest with a knif e similarto a butcher knife or a hunting knife

. Other sup erficia l cuts
were found in the area of the neck an d clavicle. There was also a knife wound which penetrated through the uppe r portion of the vagina into the me sentery in the lowe r part of the abdominal cavity . Dr. Charles Harlan w

ho perfo rmed the autopsy on the vic ti m's bod y testified that in

view of th

e small amount of

blood in the

vagina l vault it was his opinion the wound occurred at or about the time of death. The victim also had what he described as "defe nsive wounds" on her hands an d arms.-3- Jenkins had been left in charge of the motel at about

9:30 a.m. At that time the occupants of Rooms 9, 21 and 24 had not yet checked out. When the manager left her in char ge she was given

a Cheatham County State Bank bag containing $100 i n smal l bil ls to make ch ange for motel guests as they

paid. The bank bag, bloody and empty, was discovered

in the room with her body. It wa s her est ablished habit to lock her auto mobile

at all times and to keep her keys a nd billfold on her person when she worked. Her ca r k eys , billfold and her 1980 silv er-col ored Vo lvo we re mis sing.

On 1 March 1985 defendant had de parted by bus fr om Raleigh, North Carolina. He had been given a non-re fundable ticket to B owlin g Green, Kentucky and $20 in spending money . The traveling time from Raleigh, North Carolina to Nashville, Tennessee
was approxima

tely 17 hours. Prior to his departure he was observed by a witness to be carry

ing a hunting knife in a sheath which was
concea led beneath his shirt. The witness admonished him that he could not carry a knife like that on the bus to whi ch he responde d "I
never go anywhere naked." "I always have my blade." Sometime in the early morning

hours of 3 March 1985 he checked in and wa s assigned to Room 9 at t

he CeBo n Motel. He was wearing a gr een army-ty pe fatigue jacket, fatigue

pants andboots. He was next seen at ap pr ox im at el y 9:3 0 a.m. walking in a direction from his room towarda drink

machine. At that time he told the manager he was not y et ready to c

heck out. He was also seen sometime pri or to 9:3 0 purchas ing a sa

ndwich a t a deli-restaurant across the street from the motel. The same witness who saw defendant also saw anothe r stranger there somewhere between 1:30 and 2:30 who she described
as taller than defendant with dark hair, kinky looking and wild-eye d. He d eparted the restaurant in the general direction of the CeBon Motel. The

Cheatha m County Sheriff testified that

he respo nded to
a call tothe CeBon Motel at 2:37 p.m. When he arrived on the scene blood spots in the room were begin ning to dry a nd the body was beg innin g to stiffen. Defendant was seen betwee n 11:00 and 11:30
a.m. walking from the direction of the Interstate toward the CeB on Motel. At 12:40 p. m. a witne ss saw the victim'sVolvo aut

omobile pulling out from the CeBon Motel driveway . It was being ope rated by a person who appeared

to be a man with very short, lig

ht colored hair. T he ve hicle crossed over the I nterstate and turned east on Inte rstate 40. She followed behind and endea vored to c atch up bu

t it sped off t owar d Nas hvill e at a

high rate of sp eed. Defe

ndan t was next identified i n posses sion of the car a few miles past Gallatin on Interstate 65, heading in the direction of Bowling Gr een, Ke nt uc ky.-4- A group of y oung people first endeavored to help him startthe stalled automobile and then gave him a ride to Bowling Green. During the trip to Bowling Gr een on e of these witnesses observed some dried blood on the right shoulder of his shirt. He carried a jacket which he kept folded. After

he arrived at his sister's home in Bowling G reen[,] defen dant told her h

e had en deavored to pay

another day 's rent

at a motel when he was attacked by the motel operator. He demonstrated to her how he had stabbed the man. He a lso relat e d to her he had a
sum of mo ne y. She could not

remember whether he said $35,000 or $3,5 00. Defendant also told his sister's husband he had e arne d approxima

tely $7,000 working

as a mechanic in North Carolina. He displayed a set of k

ey s to a Volvo aut

omobile a nd explaine d that a
man who had give n h im a ride attempted to rob him. Defendant purportedly g

rabbed the steering wheel and w hen the car

ran off the roadhe grabbed the key s and ran. According to the witness he was wearing an army f

atigue jacket

which had something large, hea vy and bulky in the pocket. The witness had previously seen defenda

nt with
a surv ival knife w ith a 61⁄2 to 7 inch blade hanging from his belt. When defendant was taken into custody he volunteer ed the statement that he hadtaken the woman's car but had not killed her. According to the arresting officer he ha d notadvised the defendant that a woman had been killed prior to the volunteered statement. There wa s evidenc e howeve

r that defendant

was awa re he ha d been c harge d in Tennessee on a murder warrant. T he vi ctim's wallet was found wrapped in a thermal underwear shirt a short distance from where her
car was found abandoned. The key to Room 9 of the CeBon Motel
was found at the site where defendant had bee n c amping out near Cave Ci ty, Ke ntucky . When asked by a TBI agent t o tell the t

ruth about the death of Katherine J e nkins[,] defendant stated that if the officer could guara ntee him th

e death p enalty

he would confess and tell him all about the murder and that he could tell him every thing he wantedto know if he

was of a mind to. The

re were marks on t

he wall of Room 9 at the CeBonMotel apparently ma de by someone stabbing
a knife into the wall. When shown photographs of the marks on the wall defendant responded that they were

knife marks. These marks
were obviously made by

a knife larger than

two taken from defendant at the time

of his ar rest.
There is a dditi onal evidence in the record incriminating defenda nt. That su mmarized above establishes guilt of the conviction offense. A criminal offense may be establ ishe d exclusively by circumstantial evidence and the recor d in th is case isabundan tly-5- sufficient for a ra tio n al trier of fact to find defendant' s guilt beyond
a reaso nable dou

bt.

Hines , 758 S.W.2d at 517-19.

B. Proof Prese

nted at 19 89 Resent

encing

The following proof was presented during the resentencing and set out by the supreme court in affirming the petitioner’s death sentence:

The State introducedproof that the defe ndant had previous ly been convi cted o f assau lt in the fi rst de gr ee. A de te ctive who had investigated

the case testified that the defendant had inflicted serious physical harm to the

victi m in this prior

case. T

he State a

lso presented proof that the defendant had stabbed the victim in the present case multiple tim

es with a sharp instrument, probably a knife. Three of the se woun ds wer e leth al and had pe netrat ed the victi m's ch est five to six inches. The pathologist who had performed th e autopsy of the victim

testified that all the lethal wounds were inflicted at about the same time and that death wo uld have occurr ed within four to six minutes, most of which time the v ictim w ould have remained conscious. Defens ive wo unds w ere fou nd on t he vic tim's hands. Her

clothing had been

pulled up and her panties had been cut in half an d removed from her body . About the time of death, and shortly after the infliction of the le thal wounds to the chest, the defendant had inser

ted a fla t obje ct through the victim's vaginal orifice into th e vaginal pouch until the instrument penetrated the vaginal dome and passed into the abdominal cavity. A twenty dollar bill had beenplaced under the victim's watchband. No seme n or any other evidence of ejaculation was found.

At the time of her death, the vi ct im had in her possession a bank bag co ntaining

approxima

tely $100 in procee ds from the

motel. The empty bag

was di scove red in the ro om whe re the v icti m's body
was found. The victim's automobile was also missing. Around 12:40 p.m. the day of the mur

der, another employ ee of the mot el saw the vehicle being driven out of the motel parking lot by someone other than the victim.

In m itigatio n, the def

endant pr esented proof tha

t, whil e i n prison on this conviction, he had presented no s erious disciplinary problems and posed no threat to the prison population. The defendant also presented pro o f of a troubled childhood. His father had-6- abandoned

the family when the de

fe ndant was young. H

is mother had an alcohol proble

m. In histeens the

defenda nt becam e involved in sniffing gasoline and glue a nd began to abuse alco hol and d rugs. He also exhibited self-destructive behavior. Dr. Pamela Auble, a clinical psychologist, testified that the de fendant was suffering from
a paranoid personality

disorder and

dys thymia, or c hronicdepression. Ac c ording to Dr. Auble , the d efenda nt wou ld su ppres s his feeli ngs u ntil they "boiled up" unde

r stress. In he

r opinion, the defe

ndant, who had retu

rned fr om turbule

nt visits wit

h his pare nts and girlfriend shortly before he committed the murder, was under stre ss when he killed the victim. Dr. Ann Marie Charvat, a sociologist, also testified about the damaging effect of the circumstances of his childhood on the defe ndant.

Hines , 919 S.W.2d at 577.

C. Pro of Prese

nted at P ost-Conv iction Hearing

Witnesses testi fying at th e post -conv icti on hea rings included Ken Jones, who testifiedat the petitioner’s 1986 trial and 1989 resentencing hea ring that he hadfound the victim’s body; Marion Jones, Ken Jones’s wife; and Vernedith White, his girlfriend. Neither Mrs. Jones nor Ms. White had testi fied p revio usly in gu ilt o r sent encin g procee dings

Ken Jones testified via deposition from a nursing home in Hendersonville, Tennessee. I n the yearsfollowing the petitioner’s resentencing, Jones suffer ed a stroke and was confined to a nursing home; therefore, he was un able to testify in person at the post-convic tion hearing. He testified that he found the victim’s body at the CeB on Motel. He acknowledged that he went to the motel on the day of the victim’s murd

er to re nt a room with VernedithWhite, with whom he had been having an affair for two yea

rs, although at

trial he had testified that his reason for being at the motel wa s to use the restroom . Jones expla ined that it had been his and Ms. White’s custom to rent a room at the CeBon Motel most e

very Sunday . He usua

lly renteda room from the victim, who was a maid at the motel. He recalled that, on the day in question, he and Whit

e had arrived at the motel between 10:00 and 11:00 a.m. Jones could not find anyone at the motel, so he and Ms. White sat in his van and waitedfor someone to arrive to rent them a room. They subsequently drove to a ne arby re staurant and returned to the motel within fifteen minutes. Jones said that he could see the motel parking lot the entire time he was at the restaur ant and ne

ver go t out of his c ar while at the re stauran

t. He said that he found the victim’s body within one hour of the time they arr

ived at the motel. Jones further testified he knew that keys we re kept in a box outside the office, so after no one showed up to rent them a room, he retrieved a key from the box. Upon entering the motel room which had a maid’s cart sitting outside, Jones saw the victim’s bo dy, immediate

ly r an out of t he room, d

rove ac ross the street to a

restaur ant, and h ad someon

e call the sheriff. He could not recall exactly what he told the person at the restaurant about the vic tim.-7-

Thereafter, he drove

Ms. White to h

er home in Dickson

and retu rned to th e mote l to discusshis discovery with Sheriff Weakley, whom he said was a friend of his. He presumed tha t th e sheriff knew why he wa s at the motel that day and a dmitted he told

the sheriff that he was concerned a bout his wife finding out why

he had been there. Jones testifie d that Sher iff Weakl ey

tried to “put [him] at ease about the problem of being at the motel there with Vern[e]dith.” When asked further about this issue, Jone s said tha

t he under stood Sher

iff Weakl ey

would not q

uestion him about it. He also understood that none

of the at torney s would que st ion him abo ut it, but remained nervous about testifying at the trial. He said that Sheriff Weakley called him the evening of the murder and asked him not to discuss it with anyone. Jones said that he was not contacted by any attorney

prior to his testimonyat trial, and his fi rst contac t with any attorney occurred when he was called to testify at the trial. Jones testified that he knew nothing concerning the actual murder itself. He stated that he didnot see anyone

at the motel that

morning other tha

n a woman

who pulle d into the p arking lot in either a brown o

r maroon car. He could not r

ecall testifying a

t trial that the woman left her car and knocked on the door of the room where he later found the victim.

Marion Jones, Ken Jones’s wife, testified at the post-conviction hearing as to her husband’s longsta nding a ffair w ith Verned

ith White. She

didnot remember exactly w hen she learned of the affair but knew of it by the time of the p etitioner’s trial in 1986. She and Ken Jones had been married since 1956, and he had been involved in several extramarital affairs. She testified that after Jones suffered a stroke and entered the nursing home, s he learned that he had given powe r of attorney to Ms. White. She also discovered that he had given Ms. White approximat ely $30,00 0. She did not know that her husband had tes tified at the 1986 trial until Connie Westfall, an investig ator with

the post- convicti on attorney ’s offic e, conta cted her ye ars late

r. She sai d that her husband had a temper and had been verba lly abusive to her but had ne ver hit her.

Verned ith White, Ken Jones’s former girlfriend, testified at the post-conviction hearing that she had neither been called to testify at the 1986 trial nor been contacted by

anyone for

investigative purposes prior to th

e post-c onviction

procee dings. Sh

e ackno wle d ged at the hearing that she ha d been involved in an affair with Ken Jones for eleven y ears and was at the CeBon Motel on the day Jones discovered

the victim’s body. Each week they re nted one of two rooms, normally f rom the manager or the maid, and

were us ually

at the mote

l from app

roximately

9:00 a.m. until 12:00 noon. According to M s. Wh

ite , Ken Jo nes pick ed her up around 8:00 a.m. on Sunday , March 3, 1985, as was his custom. She lived in Dickson and estimated that they arrived at the motel around 9:00 a.m. They could not find any one at the

motel and

waited in the park ing lot. Sh

e sugg ested to Jones tha t t he y l eave and go home or somewhere else instead of waiting, but he did not take her advice. She reme

mbered a woman pulling into

the motel p arking

lot, but did

not reca ll her leaving her vehicle and knocking on the door, as Jones had testified at the 1986 trial. She said they did not leave the mot el parking lot to go to the restaurant as Jones had testified. Afte r they had wa

ite d awhile at the motel, Jones told her he was going to get a room key from a dish in the office and they would just use the room and leave. Ms. White said that, after Jones returned to the van with a key to room 21, they drove ove r and parked in front of that room. Jones told her to wait in the van while he went toche ck the room. Ms. White testified that the curtains to the room were open, and she-8-

could see sheets on top of both be ds. Jones wa lked in the

room past

th e b ed s, sa w t he vi ct im ’s bo dy, and ran out of the

room. She could see Jones the entire time he was in the room, which was “[n]ot
even a minute.” He was ve ry s cared when he ran out and told her ther e was a dead woman in the
room. She wanted to go inside, but he would not let her. She said that Jones did not haveany blood
on him when he came out of the room and return ed to the va n. She believed that it was approxima

tely 12:00 noon when Jones found the body. They immediately drove to the restaurant and called the sheriff. She was not sure i f Jones or a woman at t

he resta urant actually

placed t he call. Informed that the emergency

ca ll had been made at 2:36 p.m, she said that she must have had her times wrong. Jones drove her home, which was an approximately forty-five -minute drive from the motel, and then returned to talk to the sheriff.

Ms. White testified that she and Mr. Jones had been tog ether a t the CeB on Motel on

at least 100 occasions prior to March 3, 1985, but they had never

before retrieved a key

in the manner

they didthat day . She coul d not rec all if Jones returned the key to room 21. Although she had seen the victim cleanin g rooms at the motel on prior occasions, she did not know her name. She recalled that the day of the murde

r wa s a warmday, and she a nd Mr. Jones sat in the parking lot with the van doors open. The

y ne ither saw nor hear d any su spicious a

ctivity at the motel that day prior to Mr. Jones di sc ov er in g t he vi ct im ’s bo dy. She believed they w ould have seen any one who entered or left either room 21 or room 9.

Ms. Whit e said that she and Mr. Jones were co-owners of a spor ting goods store and that Sheriff Weakley was a

regular customer. She testified that she never discussed the events of March 3, 1985, w ith Weakley and un derstood that he had told Jones that it was all right for him to take White home and then return to discuss the matter. She said that her rel ationship wi th Jones had endedabout two years a

fter March 3, 1985. According to Ms. White, there was no possibility that Ken Jones had anything

to do with the victim’s murder.

Sandra Kilgore testif ied that she served on the jury in the petitioner’s 1986 trial. After learning th at sh e h ad be en se le ct ed fo r a ju ry, she called her pastor from home and asked f or biblical scriptures regarding capital punishment. She said that she spoke to her pastor before she was sworn in as a juror in the petitioner’s trial. She did not know that the State wasseeking the deat h penalty in the petitioner’s case until she came to court for jury service. According

to Ms. Kilgore, there was some division among the jurors during deliberation. Mary Sizemore of t he Cheatham County Ambulance Service testified she and her partner went to t he CeBon Motel in response to a call from someone at the Donne ll Restaurant abo ut a stabbing at the

motel . Ms. S ize more and her partner searched room to room until they came to a
roomwith a maid cart outside. Her partner indicated t hat the roo m was open. They entered the
roomand found the victim lying on he r back wrapped in what appeared to be a bedspread up to her neck. The victim’s wounds were not readily apparent, and they

had to unwrap her and pull up her dress to a ctually see the w ounds. The

y w ere not a

ble to find

a pulse on the victim. Ms. Sizemore remembered

that the man who had reported the stabbing subsequently returned to the scene and talked wi th the she riff. She later le arned th at this man was Ken Jones.-9-

Maxe y Jean Kittre ll testified that she was working at the CeBon Restaurant on Mar ch 3, 1985, when a man came in and reported a stabbing at

the CeBon Motel. She called an ambulance servi ce and r eport ed the stabb ing.

J. Kenneth

Atkins, one of the

prosecu tors in the petitioner’s original trial in 1986, testified that he was involved both in the preparation for trial and the trial itself. He de n ied t hat Sheriff Weakley had asked

him not to question Ken Jones regarding his reason for being at the CeBon Motel
on the day of the mur

der, b ut ackno wledged knowing that Jones was at the motel with a woman other than his wife and that

Sheriff Weakley was conc erned a

bout emba

rrassing Jones. Atkin s said that he had known Jones prior to his involvement in the petitioner’s case because he had “ prosecuted
a guy that sold d

rugs and resulte d in [Jones’s] son’s death.” He testified that Jones did not

express any reserv ation about testify

ing at the petition

er’s tri al, and Sh

eriff We akley

never a sked him to

limit his questio ning of Jones. Atkinsacknowl edged that he di d not inter

view Ver nedith White . In h

is opinion, trial counsel were not deficient in their representa tion of the petitioner.

Jame s W. K irby , a forme r assista nt distric t attorne

y g eneral and, at th

e time of t

he postconviction hea

ring, th e Executive Director of the Tennessee District Attorney s’ General Conference, testified that he was involved in prosecuting the petitioner at the 1986 trial. He said that Atkins was the prosecutor who talked with Ken Jones and examined him on the witnes s stand. Kirby acknowledged

that he was present at the deposition of Jone s taken prior to the post-conviction hearing and had b

riefly disc ussed it with Atkins. He said that the deposition contained testimony that was not brought out at the 1986 trial. He did not rec all having any discussions with Sheriff Weakley prior to the petitioner’s trial, but it was his understanding that Atkins recalled discussing Jones’s situation with Sheriff Weakley. Kirby also testified that in the 1980s most of the juries he
was involved with in Cheatham County were dominated by men; however, he reca

l led one de ath penalty ca se where the jury had a female foreperson.

Robert S . Wilson wa s the firs t attorne y a ppointed t

o repre sent the p etitioner , but his representationwas short-lived because he was hire d by the district attorney general’s office approximatel y two months after his appointment. He said that he represented the pe titioner from shortly after h is arrest in March

1985 to ap

proximatel

y la te June 1985 . He beg an employ ment with the district attorney g eneral’s office on August 16, 1985, and said that he never di scussed t he case withanyone a

t that office. He testified that he had recommended Steve Stack as his co- counsel, and Stack was appointed. He kne w that S tack had no prior death penalty experience when he
recomme nded him. Steve Stack represented the petitioner at the 1986 trial and the 1989 resentencing. He had tried two case s to a jury in the twenty months tha

t he had been prac ticing la w prior to

his appointment and did not be lieve he was qualified to serve as lead counse l on the case. Stack estima te d that between 60 and 75% of his practice at the time wa s civil. William Wilkinson was appointed to assist Stack after Wilson was allowed to withdraw . Wilkinson had practiced wit h Wilson prior to th

e time he j oin ed th e distric t attorne y g eneral ’s offic e. Stack c onsidere d himself to be co-counsel in the case, although he performed ma ny of the lead c ounsel’s duties. He spent 38.9-10-

in-court hours and133.6 out-of-court hours on the petitioner’s case. He be lieved he was paid, at the time of his representation of the petitioner at the trial, $20 an hour for out-of-court time and $30 an hour for in-court time. By contrast, in retained cases he charg ed between $60 and $75 per hour for his service s. At the ti me of his representationof the petitioner, he did not have an office staff or an investigator. Ac co rd in gl y, he and Wilkinson did all of the investigation themselves. Although Stack
was in private

practice during the 1986 trial, he was e mployed at the public defe nder’s office by

the time th e case was remanded by the supreme court for resentencing and, as a public defender, was appointed to represent the petitioner at the resentenc ing.

Stac k testified that he obtained a mental evaluation for the petitioner to determine competency

issues and whet

her an in sanity

defense would be a

vailable prior to th

e original trial , but these serv ices did not cover any mitigation issues. He requested the services of an indepe ndent psy chiatris t, a private investigator, and an independent mental ev aluation , but these requests were denied.

Stack

said that he had interviewed many of the witnesses who testified at trial, including the owners of the motel and Sheriff Weakley . He recalled traveling to Bowling Green, Kentucky , but could not remember the specific witnesses he interviewe d there. He did not run a criminal backgr ound check o n Daniel B lair and , theref ore, did n ot know he

had bee n convict ed of theft o f livestock, which mig

ht have been used f

or impea chment pu

rposes. He also in

terview ed Bill H

ines, the petitioner’s stepfather; Bobby Joe Hines, the petitioner’s ha lf- brother; and possibly Ba rbara Hines, the petitioner’s mother. Although he recalled travelin g to the home of Victoria Hines Danie l, the petitioner’s sister, he did not remember actua lly meeting wi th her. He acknowledged that he knew she would testify that she saw blood on the petitioner’s clothing, but he did not obtain any information to impeach her testimony. He d id not interview the petitioner’s former girlfriend, Melanie Chandler, or her mother, Virginia Chandle r, both of whom lived in North Carolina.

Stack ackno wledge d that he did not p resent all of the mi tiga tion proo f that thepostconviction defender had been able to assemble. He pointed out, however, that at the time of the trial and resentencing, he did not have the bene fit, apparently r

ef erring to counsel representing the petitioner at the post-conviction hearing, of a three-y ear period of time to investigate the case aswell
as numerous attorneys a

nd investigators to work on t he mitiga ti on proof. He testified that, as an appointed attorney, he did not have the b enefit of working on the case as much a s he would have liked because he could not afford to do so. However , he felt he had zealously represented the petitioner.

Stack also testified that the defense did not challenge the composition of the jury venire at either the 1986 tr

ial or the 1989 rese

ntencing , say

ing that it w as not considered as an issue at the original trial. Although he was aware that it may have been an issu e at th e tim e of th e resen tenci ng, they did not hav e the nec essary time to dev ote to pur suing it.

Stack said that he did not interview Ken Jones prior to the trial because he had been told by Sheriff Weakley that Jones w as at the

crime sc ene for

only a very short per iod of time

and did not-11-

know anything

about the murder itself. Stack testified that heknew at the time of trial that part of Ken Jones’s testimony was false or inaccurate. Howeve r, he explained that he held Sheriff Weakley in high regard and trusted wha t he had to ld hi m, saying: “I mean, I would take that man’s word for anything in the wor

ld. He sa y[]s th is hadn’t got a dog in the hunt, don’t embarrass the man. I wasn’t going to embarrass the man.” Stack acknowledg ed that the defense team should have interviewed Jones and that itwas “ridiculous for [them] not to have gone to interview him.” He said there were discrepancies in Jones’s te stimony regar ding his t iming of the even ts which sho uld have been discovered and developed for the defe nse. Stack acknowledged that Jones testified at trial that he didnot know the gender of the victim at the time of discovery because the victim’s body was covered with a cloth or

sheet. However, the person who made the e mergency call said that

a woman had been stabbed.

Stack testified that he became an assistant public defender in 1988 a n d was ap pointed to represent the petiti oner at r

esentencing, a s were Sh

ipp Weems, the public

defender , and Philli

p Ma xe y. As for the d

efense team’s de cision to delay their ope ning sta tement at resente ncing until just prior to their proof, Stac k test ified that they discussed this issue, but he did not know why they decided to do so. He said that Maxey, who was the least experienced of the three, ga ve the opening statement for the defense, and both he and Weems had anticipated a different opening . He testified that the opening did not

outline the proof they planned to present, but rather simply a sked the jury to listen to their proof. He testified that the defense team made the tactical decision not to present
a closing argume nt becau se it was t

heir opinion that General Kirby had not “presented a very

forceful argument,” and they wa

nted to prevent General Atkins, who was “exceptional in his ability to .

. . bring emotions out in a jury ,” from ma king a r ebuttal a rgumen t. Stack said that

General Atkins had givena very

impassioned closing argument at the origina l trial, and they wa

nted to keep him from doin g so at t he rese ntenc ing.

Stack recount ed that a t resente ncing th ey call ed Dr. Pamela Au

ble and Dr. Ann Ma

rie Charvat to testi fy for mit iga tion purpo ses. The two had been reco mmended b y the Capital Case Resource Center, with whom defense counsel worked during the resentencing, and he believe d they could explain how the petitioner had become theperson he was. Dr. Charvat d id not come

across as well as they had hoped, and h e did n ot believe the jury ha d grasped every

thing she said. Stack said that the d

efense team did n ot know the

“extent and the nature of the ty pes of abuse that [the petitioner] went

throu gh growing up” and that the rese ntencing jury

never saw the background that the petitioner had. Stack further acknowledg ed that t hey did no t att empt t o chal lenge the petitioner’s prior felony conviction in Kentuc ky beca use of the time constraints. He concluded that the public defender’s office did not hav e, and sti ll does not have, the sufficie nt resour ces or the time to de

vote to a capital case.

William G. Wilkinson, who had been practicing law s i nce 1968, testified that he was appointed to a ssist Steve Stack, who had been in practice a “relatively short time.” Wilkinson described his role as “kind of

senior c ounsel” but said tha t Stack pr obably did more w ork on the

case than he did. He said he had billed 59.5 out-of-court hours and 34.4 in-court hours on the petitioner’s case, but those num b ers wer e very conserv ative an d did not inc lude time h e spent tr aveling to-12-

Bowling Gr ee n, Ke nt uc ky. Wilkinson testified that he believed he had sufficient time to prepare for the petitioner’s trial, that he was adequately prepared for trial, and that none of his tactical decisions turned ou t to be er roneous.
Wilkinson knew that the petitioner’s sister, Victoria Hines Daniel, had an alcohol and drug abuse problem a

nd reca lled examin

ing her husband, Ernest

Daniel, about her drinking problem. He
was not awar

e of any sexual or ph ysical abuse a llegations of Mrs. Daniel but acknowledged that information as to this would have been useful. Wilkinson sa id that the petitione r “may ” have to ld him about the

abuse inf

licted up on him by

his stepfa

ther. He had the pe

titi oner examined by a psy chiatris t who dete

rmined he

was comp etent to st

and tria l.

Wilkinson said he did not interview the four people from Kentucky who gave the

petitioner
a ride and didnot know before trial that one of them, Daniel Blair, was going to testify that he saw blood on the petitioner’s shirt. Had he known o f the subs tance of Blair’ s testimony , he would have checked Blair’s criminal record

for impea chment pu

rposes. He rec alled tha

t Blair te stified a

bout his ability to recognize blood and

about washing bloodstains out of f abric a lthough h e could not recall Blair’s exact

testimony . He ack

nowledg ed that, in hindsig ht, it would

have be en helpf

ul to have had an expert refute Blair’ s testimony

about wa shing ou

t bloodsta ins.

Wilkinson sa

id that he discusse d Ken Jones ’s situati on with Sheriff Weakley and be

lieved that Weakley had told him every thing he knew. He did not interview Ken Jones, Vernedith White,
or Virginia Chandler and, in hindsight, would liked to have had more time to inquire a bout why Jones and White sat in front of the CeBon Motel for over threehours on the day of the murder. As for Dr. Har lan’s tes timony , Wilkinson sa id that it m ayhave been helpful to have had another pathologist review Harlan’s findings. Regarding the petitioner’s jury, Wilkinson said that three wom en, two of

whom he knew, served on the jury

and he believed he had adequately prepared for the jury

selection. He was not
awareof an y di sp ar it y be tw ee n t he nu mb er of wo me n a va il ab le an d t he nu mb er ac tu al ly c alled to
serve in Cheatham County. He was a ware of some Tennessee case law prior

to 1985 where challenges had been made to jury composition based on race or gender. Shipp Weems was the District Public Defender for the Twenty -Third Judi cial Distr ict, which included Ch ea th am Co un ty, at the time of resentencing and in that capa city had bee

n appointe d to represent the petitioner at resentencing. He wa s not involved in the preparation phas e o f resentencing but assisted in voir dire. Weems confirmed Stack’s testimony that they agreed to waive closing argume

nt at rese ntencing in order to preve nt the pro secution

from gi ving a r

ebuttal a rgumen t. He had t ried six o r seven capital cases prior to the petitioner’s re sentencing and was aware of the importance of mitigationproof. In hindsight, he fe lt that much more work should have been done
on the petitioner’s social history for p urpose s of mitig ation. As t o the wor kload of t

he public defender’s office

in 1989, Wee

ms said tha

t the offi ce had th

ree atto rney s wh o each handled approxima

tely 800 cases. Although the office was budg eted to have an investigator, that position
was filled by an attorne

y beca use the office w as onl y budge ted to have two attorney s, and that-13-

number could not h andle the entire d istrict. I n his opinio n, at the t

ime of the

peti tioner’ s resent encin g, the attor

ney s in that pu

blic def ender’ s office “d idn’t have the luxury to prepar e a misdemeanor

case much less a capital case.” Weems testified that they were “looking for women” wh en choosing the jury

for resentencing, and conc luded that the defense team did not get the jur y pool they want ed for t he rese ntenc ing. Phillip Maxey, a juven

ile cour t judge at the time of the post-conviction hearing, ha d been appointed to represent the petitioner at resentencing. At

the time, he had been practicing for a bout five years. A

lthough he had taken several case s to trial, h e “knew ve ry little” a bout capi tal case representationat the

pena lty phas e. He

testi fied that h e inte rvie wed S heri ff We ak le y, the investigating officers, and a juvenile court judge in Bowling Gre en, Kentucky . He also worked with Drs. Auble andCharvat and the Capital Case Resource Center. He said that the defense team was
as prepared as they

could have been and that they had been able to negotiate two life sentence s for the petitioner, which were denied. He believed the y had presented strong mitigati on proof a nd said t heywaive d closing

argume nt in an ef

fort to pr event the State fro m making

a rebutt al argument. They believe d that the

Statewould wait until rebuttal to “really throw it all” at the jury. He did not recall any discussions about challenging the jury venire.

Daniel Blair, who testified at the petitioner’s original trial, was one of the four people from Kentucky who picked up the petitioner on March 3, 1985, on Interstate 65, a fter they noticed his car
was disabled, and drove him to Bowling Green, Ke ntucky. Blair

was on probation at the time and
was not supposed to have left the State of Kentucky , although he was never charge d with violating his probat ion a nd was told by a Kentuc ky deputy sheriff that his leaving the state would not be a problem. At the post-con viction he aring, Blair

testified that he had seen “what looked like blood” on the petitioner’s shirt, although at the trial he had testified that it was blood.

Melanie Chandler, the former girlfriend of the pe t i tioner and a friend of Victoria Hines Daniel, his sister , testi fie d that she and the petitioner had a child, Anthony Scott Hines, who was born January 1, 1981. The pe titioner’s mother adopted the child when he was two ye ars old. She testified she had la st

seen the petitioner around Februa ry 1985 when

he came to her hou se in Nort

h Carol ina. When he ar

rived, he only had a few items wit

h him, one o f which w as a sma ll, foldin g knife she prev

iously had giv en him. Du

ring hisvisit, they

went toa party

with some f

riends of hers, and, as they wer

e returning home, the petitioner and the friend w h o was driving got into an argu ment. A fter the petitioner grabbed the fr iend who was driving the car, Chandler g rabbed the petitioner, who acc identally struck her in the ey e, causing bruising. She said that he had never before struck her but had alway s been protective. Chandler’s mother, Virginia Chandler, called the police and forc ed the petitioner to leave. La ter that night, the petitioner appeared at Mela nie’s windo w
. She allowed him inside, and he hid in her closet for approximately one week befo re he r mother di sc ov er ed hi m. He r m ot he r b ou gh t t he pe ti ti on er a o ne -w ay b us ti ck et to Ke nt uc ky.

Chandler said that she knew

her mothe

r had tes tified at

the petiti oner’s t

rial, but d efense counsel never contacted her. She acknowledged knowing she was supposed to appear in court at the trial, but she had just had a baby and decided not to do so. She testified that she did not know that-14-

the petitioner was on trial for murder. She thought her mother lied at the trial when she stated that she had seen

the petiti oner sha

rpening his knife witha bootstra p. She said

that her mother la ter told hert hat the petitioner had been found guilty of murder and had been executed. She believ ed th e petitioner was dead until the post-conviction defender’s office contacted her in 1997 or 1998. Since learning that the petitioner was alive and in prison, she had written him several letters and

had visited him in prison.

Robert Ernest D aniel tes tif

ied that he had been married to Victoria Hines, the petitioner’ s sister, for about two ye ars. He met the petitioner while the petitioner was on parole in Kentucky and gave him a job doing construction work. The pe titioner was a hard worker, and they were friends “[t]oa point.” Daniel said that the petitioner carried a small pocketkni fe wi th him on the job and
a lso had an “Army

type survivor” knife

with a fixed blade. He believed that the knife blade was approxima

tely six inches long, with one end serrat ed and the other sharp. He recalled that the petitioner gave the knife to his brother, Bobby Joe, who kept it in a drawer at their home.

Daniel testified that on March 3, 1985, the petitione r appea red at hi s apartme

nt, wearing blue jeans, a white t- shirt, an Army jacket, and white

tennis shoes. Victoria’s birthday was the day be

fore
or the day af te r t he pe ti ti on er ar ri ve d, an d t he pe ti ti on er wa nt ed to bu y a grill for her. Daniel gave the petitioner

some money beca

use the petitioner did not have enough to purchase the g rill. He then drove the petitioner

to Pa rk Ci ty o r C av e C it y, Kentucky, a nd dropped him off. Later that nig ht, the police came to h

is home an d questioned him a b out the petitioner’s whereabouts. At the time, he thought the police wanted to question the petitioner about a probation violation, so he “acted stupid.” When he later learned that the police wanted to question the petitioner in c onnection with a murder, he told the police where he had taken the petitioner.

On cros s-exa

minatio n, Daniel said that he testif ied at the origina l trial tha t Victoria only dr ank occasionally “

because she was my

wife at the time and I would be ve ry protective of her. ” This testimony was inaccur ate because Victoria drank hea vily. H e denie d testifying that the petitioner had somet

hing bulk y in his Army jacket and that he did not know when Victoria’s birthday
was. He denied remembering seeing the petitioner with a set

of car key s or t hat he had asked the petitioner why he had a

Volvo. D uring a recess, the court orde red Daniel to take a breath alcohol test. Daniel admitted that he had consumed “a couple of beers” before coming to testify

atthe postconviction hearing , and the c ourt found him to be in contempt , ordering him to serve tw enty-four hours in the Cheath am County Jail.

Victoria Hines Daniel Furlong, the petitioner’s sister, testified at both the orig inal trial and the post-con

viction pr oceeding. She sa

id that he r ste pfather, Bill Hines, was abusive to her, her siblings , and her mother. Her stepfather used “tobacco sticks, belts, belt buckles . . . anything that he could g et a

hold of to w

hoop us wit

h.” He a lso drank beer and liquor “all the time” which caused his attitude to change, and the “beating s got worse.” She said that the petitioner often at tempted to intervene to protect her and their sist er, Deb bie, which cause d th e petitioner to be beaten more
se ve re ly. She recalled one incident where her ste pfather knocked the petitioner into the cor ner of
a fireplace, rendering him unconsc ious. Howeve r, me dical attention was not sought for the-15-

petitioner. Often there was not much food in the house. I n addition to the physical abuse, Bill Hines sexually abused her

from the age of

nine. She and the petitioner began drinking a t the age of eleven
or twelve. They both a

lso smoked “dope,” and the petitioner sniffed glue. Sh e admitted that she drank heavi ly from th e tim e she wa s twel ve or t hirte en and had on ly recentl y stopped drink ing. She also said that

she was ma

rried to Ernest Daniel for five y

ears, during which time he often beat he r severely

. Furlong sa id th at he r b ir th da y wa s F eb ru ar y 4 and that on March 3, 1985, the petitioner had givenher a grill a s a belat

ed birthd ay

gift. She said that, if she had testified at the original trial that she saw blood on the petitioner on March 3, 1985, when he arrived at her house, it was bec ause she had been drinking. At the post-conviction proceeding , she testified that the petitioner had fallen in redclay mud prior to ar

riving at her house and that is what she saw on his clothes. She said she was notinterviewed by the

pet itioner’s attorneys pr ior to the resentencing, and the prosecutor s had trickedher into talking to them prior to the original trial by telling he r they we

re the petitioner’s attorne ys. She said she was drinking whiskey and water when they

came to her house and asked questions

. She thought they we re tape-recording their c onversation, but they denied it. She said she later saw a recording de

vice and ordered the men out of her home. Furlong acknowledged that she was an alcoholic. She did not remember testifying that the petitioner had gotten into a struggle at the motel a nd did not believe that she had testified as the transcript of the or iginal tr ial refl ected. I

f the tra nscript w ere cor

rect, then sh e was “[p]roba bl y” lying in 1986 bec ause of her drinking. She admitted that she had never reported any

of the sexual abuse by her stepfather. It was her understanding that her stepfather had continued with his sexual abuse of young

girls, including her niece, but she h ad never repor ted him to law enforcement officia ls.

Lee David Miles testified at the post-conviction hearing that he is a transs exual and f

ormerly had been the

petitione r’s olde st sister, Debbie H ines. Ac cording

to Miles, th

e petition er and B ill Hines were very

close until the petitioner

was appr oximately age six a nd learned that B ill Hines was nothis biological father. At that time, the petiti oner bec ame resentful toward Bill Hines. Miles saw Bill Hines hit the petitioner with his hands, a belt, a tobacco stick, and a car antenna. Hines beat the petitioner “four or five time s a week .” Miles r elated o ne incident wher e Bil l Hines threw the petitioner, who could

not swim, in

to a partially fr

ozen pond as punishment for throwing tires in the pond. An uncle and Miles ha d to go in a

fter the petitione r, and Mil es pulled

him out. Mile s als o testified that their stepfather got mad at Miles for b rea king an antenna off his c ar. He b eat Miles , Furlo ng, and the petitioner with the antenna to the point that he drew blood. Miles further testified that the petitioner once fell off a stack of hay

bales on top of a wagon. He hit his head on the ground and was bleeding, but Bill Hines refused to take him to the doctor. Milesalso te stified that the petitioner was very protective of hi s siblin gs and often intervened during B ill Hines’s attacks and abuse. Bill Hines also shot and killed the family dog and her puppies in front of the children.

Miles also

testifie d that Bill Hines sexua lly a bused him f

our to five times a week from the age of six until the age of eightee n and that he was a fe

male at th e time the sexual abu se occurred.-16-

Miles also said that he was raped at the age of sixteen by

Bill Hines an d that Hine s tried to f orce him to have sex with a

friendof his, but Miles “fought with his friend for a while and then his friend g ot tired and said well I am not g oing to do this, let’s just leave.”

Mi les said that when the family move d to Bowling Green, Kentucky , the petitioner and Victoria began drinking heavily and the petitioner also began sniffing glue and gasoline a nd smoking marijuana. The childre

n often a te cere al with wa

ter for a ll three meals because their parents spent their money on beer a nd ciga rettes. H owever , BillHines bought food for Bob by Joe Hines be cause he was his biological son. Miles never sa w Bill Hines strike Bobby

Joe. Miles recalled visiting the petitioner at the Green River Boy s Camp and the petitioner criedand beg ged the

ir mother to take hi m home, but their stepfather refused to let her. After

their moth

er attem pted suic ide, she l eft with o nly Bobby Joe and moved

to Illinois. Soon t

hereaf ter, Mile s left home

also. The ir mother subseque ntly returned home aft er lear ning tha t Miles had

left. Miles testified that

he was never contacted by the defense attorney s, but he tried to contact them to offer to pay their fees.

Connie Westfall, an investigator in the post-conviction defender’s office, said that she me t with the Hines family and that it took them a “g reat deal of time” to open up to her. Ms . Westfall estimated that she worked more than 1000 hours on the petitioner’s case

. Dr. Pamela Auble, a psychologist specializing in clinical neuropsyc hology, who ha

d testified at the resentencing, testifi ed also at the post-conviction hearing, say ing she first evaluated the petitioner in May 1989. After meeting w ith the pe titioner, she revi ewed his social his tory , as well
as his school records, prison records, and rec ords from the Middle Tennessee Mental Health I nstitute which were pr

ovided by defense counsel. Her diag

nosis of the pe

titioner w as para

noid pers onality disorder and dystonia, w

hich is depression.

Dr. Auble said that she did not have enough time prior to the resentencing hearing to develop
a trusting relationship with the petitioner. She said she was only g iven a little over

a month to work
on the petitioner’s case but that, in general, three to four months was optimal, depending on the case. It would have been helpful to have had the petitioner eva luated by an

expert in chemical dependency and to have had more information about his social history . She acknowledged that, at the time of resent encin g, she knew little about the petitioner’s alcohol abuse or th e s ex ua l a bu se in hi s f am il y. She testified that Steve Stack “didn’t seem very confident in his own ab ilities ,” and she believed defense counsel did not have much understanding of the mental health issues in the case.

On cross-examination, Dr. Auble acknowledged that she kne w the petitioner’s parents drank when they were

not at work, suspected that he had suffered phy sical abuse, and knew that he abused alcohol and drugs. She said she was not aware of the alcoholism in the petitioner’s family or of the extent of the abuse suffered by the Hines chi ldren. She believed her diagnosis of the petitioner’s emotiona l problems , of which she testified at the resentencing he aring, was correct. She said that she would liked to have referred the petitioner to an expert on the issue of a ddiction, such an expert being needed

to deter mine the e

xtent and na

ture of th e alcoho lism and dr

ug abus e and the

effec ts these had on the petitioner. She explained that the combination of the history of addiction in the-17-

peti tioner’s family that she now had know ledge of, together with his relatively normal neuropsycholog

ica l t esting, raised the issue that the petitioner may have a “chemical lack of neurotransmitter

substance.” Dr. Auble said that this was one area of her te stimony

that would

have been different had she had additional time to work on the petitioner’s c ase.
Dr. Ann Marie Charvat, a sociologist and a mitigation spe cialist, a lso testified at the petitioner’s resentencing hearing and again at the post-conviction hearing , the former being the first capital case on which she had worked. Her first involvement with thepetitioner’s case was on May 10, 1989, “just a matter of day s” after receiving her PhD. Dr. Charva t interviewed the petitioner, several of his family member s, and seve ral of his friends prior to the resentencing. She did not obtain any medical r ecords o n any

of the fa mily members. The petitioner told Dr. Charvat about the physical abuse he and his sisters endured, and she learned of the petitioner’s alcohol and drug abuse. Dr. Charvat was not told about the sexual abuse, but she suspected that it had occurred. She said that information about the sexual abuse and the fact that the petitioner tried to be his sisters’ protector
were important for

purposes of mitigation. Asked if she had overlooked any thing in her evaluation of the petitioner, Dr. Charvat said that she had “failed to look at cer tain f actor s . . . which include family history, medical rec ords. . . . I would have collected more records. I believe that I did identify that his bond to s ociety

had suff ered. I failed to tie it to the

crime. T here ar e a numbe

r of thing s to investigate that . . . I hadn’ t.”

Dr. Charvat

testified, as she had done at resentencing, reg arding the petitioner’s confinement at Green River Boy s Camp in Kentucky, wher e a method of behavior modificat ion known as grouping was used. The groupings of ten beca me physically

and verbally a

busive. She explained that the bad behavior of one

boy in the gr

oup caused the entire group to lose privileg es. Dr. Charvat testified at

resentencing about one incident at Green River wherethe petitioner and another boy were pushed into sewage. She said that she was awa re in 1989, the time of

resente ncing, that prog

rams using grouping had extensive problems and that there wa s literature available on this issue. Sh e explained that alt

hough the act ivities and potential abuse at Green River, as they related to the petitioner, could have been extremely important for mitigation purposes, she did n ot hav e enou gh time to further develop those issues.

Dr. Charvat said that she still agreed with the sociological conclusions that were presented to the jury at the re sentencing. She believed the weakness wa s in the way they were presented to the jury and said that “there were many

parts of [her testimony] that . . . were not we ll articulated, not clear.” It wa s also heropinion that the petitioner’s background was not adequately distinguished from that of any othe

r unruly child.

Dr. William Ken

ner, a ps ychiatrist, testified that the petiti oner suf

fered f rom post-t

raumatic stress dis order (“PT SD”), antisocial personality disorder, status post-head injury , and inhalant abuse. He sai d that the petitioner was sexually abused by both his stepfather and a maternal uncle and ph ys ically

abused by his stepfa

ther, opining that the abuse caused the petitioner’s PTSD. T h e physical abuse inflicte d upon the

petitione r by his stepfa

ther inc luded hitting him in the head with
a tobacco stick, whipping him with car radio an tennas, t hrowing him into a pond

althoug h he could-18-

notsw im , and shooting the family dog and her puppies in front of him and his siblings. The petitioner’s mother was also a victim of Bill Hines’s abuse, and the petitioner often tried to protect her. At the age of eight or nine, the pe titioner sustained a head injury when he fell off

a wagon of hay and was knocked unconscious. The pe titioner d id not rec eive any

medical t

reatmen t for this injury. Explaining how PTSD affects the brain, Dr. Kenner said that a

person w ith PTSD repeats or
re pl ays traumati c eventsthroughout life a nd that PTSD

can alte r a pers on’s cha

racter and cha nge his
or her behavior. Dr. Kenner testified that in the pet itioner, PTSD created a paranoid quality . Dr. Kenn eropined t hat the head injuries the petitioner suffered throug hout his life could have caused organ ic personality sy

ndrome, which made him even more v olatile and difficult to manage. The petitioner’s abuse of inhal ants such as glue and gasoline also ca used damage to his brain. Dr. Kenner concluded that the petitioner’s choosing a woman for his victim was inconsistent with the petitioner’s personal history, a s there was no indication that he had hard feeling s toward women.

On cross-examination, Dr. Kenner acknowledg ed that the petitioner had beenin and out of jail since the age of fifteen. He further acknowle dged that a report prepared by the Middle Tennessee Health Institute and the Harriet Comb Mental Hea lth Center indicatedthat the petitioner experienced difficul ty in relati onships wit

h women, a s the res ult of pro blems with

girlfr ie nds and fa

mily interference, exhibited a preoccupationwith thoug hts of violence, and display ed extreme prejudice towar d African- Americans. Additionally, a report prepared by

the Tennessee Department of Correction stated that the petition er, once confined on death row, acknowledged to security personnel that he hated both women and African-Americ ans. Dr. Kenner testified that altho ugh the petitioner said that he hated

women, he did not believe him because his behavior indicated differe ntly . He said he had much more

informat ion conce rning th e petition er than Dr. Charv at did

prior to preparing her report for the resentencing. He believed that Dr . Charvat should have interviewed the petitioner’s sisters and mother in order to get a true picture of “how bad things were for [the petitioner] growing up.”

Dr. Murry

Wilton Smith, a

special ist in addiction medicine, testified that the petitioner is a Type II alcoholic. He explained that T ype

II alcoholi sm, a prima

ry medical i llness ba sed in bra in ch em is tr y, is inherited and involves rapid early onset of alcoholism, usually between the ages of nine and twelve, and is associated with antisoc ial beha vior and e arly

legal t rouble. Dr. Smith als o testified that the petitioner had us ed in halant solvents and marijuana. He was aware of the petitioner’s low levels of s erotonin, w hi ch i s as soc iat ed w it h vi ol ent beh avi or a nd T ype II alcoholi sm. He said that

current treatment for Ty

pe II alcoholism, which was not available in 1989, consisted of alcohol and drug treatment, intensive phy siotherapy with a counselor, and medication to improve the serotonin level. On recross examination, Dr. Smith acknowledged that altho ugh medications to incre ase ser otonin levels were available in 1986, there wasnot a routine to monitor. He also stated that a characteristic of Ty pe II alcoholics is a lack of motivation to follow instructions or a schedule.-19-

Dr. Paul Rossby , an exper t in mole cular

neurobiology

and the study of ser

otonin, testified that, as a mole cular bi ologist, he studie s the che mist ry of the brain and the biological basis of behavi or. Accord

ing to Dr . Rossby , seroton in blocks p ain and or

chestra tes inhibit

ion within th e brain. Dr. Rossby testified tha t research o f serotonin dated back to at least the 1970s. He further said that there woul d have been a “tremendous amount” of literature a vailable on serotonin at the time of the pe

titioner’ s resent

encing in 1989 and a “great deal” of literature available at

the time of the pet itione r’s tria

l in 1986. H e said tha

t low levels of sero

tonin have

been ass ociated

with impulsive behavior, but none of the studies has indicated that it causes violence.

Dr. Rossby had a

spinal tap perf

ormed on t

he petitio ner to de

termine h is seroton in levels, which were “at the extreme low level” of the normal male population. He opined that the petitioner’s serotoni n levels, coupled with his Type II alcoholism, resulted in the petitioner’s being organ ically impaired and said that the petitioner does not have the biologic al capa

city to contro l his impulsive behavior. Dr. Rossby sa id thatin a pers on with

low level s of sero tonin, onc e an impul se is triggered, there is no ability to control the impulse. He acknowledged that he did not testify on the issue of s erotonin

levels until 1999. He first worked o n a case

involving

a seroto nin defe

nse in approxima

tely 1992, and was not aware of any ex pert whohad te stified on the issue of serot onin prior to the time he was involved with his first case.

Dr. Henry

Cellini, a

n educa tional psy cholog ist who wa s o ffered a s a rebuttal witness on behalf of the State, testified that serotonin research beg an in t he 19 70s but had only been fully developed

in the last fifteen to twenty y

ears. With regard to the petitioner’s case, Dr. Cellini testified that the practical application of serotonin levels to b ehavior was in its “ infancy

” in the mid -1980s. He said that research indicates that the two pri ma ry f actors of antisocial personality disorder are impulsive aggression and psy chopathic tendencies or thinking.

Two witnesse s were p

resente d as to the

claims re garding the Gr

een Rive r Boy s C amp i n Kentucky and it s a ll eg ed ef

fe ct s o n t he pe ti ti on er . T am my K en ne dy, an invest igator with the po stconviction defender’s office, said that she interview ed former residents and staff mem ber s. The former residents told her that, when they arrived at camp, they

we re i mmediately s ubjecte d to groupi ng, which co nsisted of severa l boy s surrounding the

new res ident and

phy sically

and verball

y abusing him. She said that the former residents told he r at times they had sewa ge detail, which involved t wo boys holdinga resident by the legs and dumping him into the sewage. The y were forced to scrub the pavement until their brushes were gone and their hand s were blister ed. A juvenile specialist who had visited Green River advised Ms. Kennedy that schooling was minimal and that there were reports of phy sical, sexual, and verbal abuse of the residents. Ms. Kennedy said that several other death row inmates were former residents of Green River.

Dr. David Richart, an expert in the operation of the juvenile justice system and residential treatment facilities in Kentucky, te stified that he hadi nvestig ated Green River in connection with his position as the Executive Director of Kentucky Youth Advoc ates, Inc. He said that the theory behind creating the juv enile ca mps was to t

ake youth ful offenders out of large, training school fa cilities and place them in smaller, community -like settings where they would both wo rk an d-20-

receivetherap y co ns is ti ng of gu id ed gr ou p i nt er ac ti on , p os it iv e p ee r c ul tu re , a nd re al it y th er ap y. These theories of treatment

were based on the fact that juveniles who committed crimes did so for peer-related

reasons. The purpose of the therapy was “to turn something negative into somet hing positive.” However, problems arose when the s tate redu ced the number of employees, which resultedin the staff allowing the residents to discipline themselves. Dr. Richa rt’s inve stigatio n also revealed that the staff had not received the essential training required for this type of “sophisticated treatment.”

Dr. Richart testified that new residents at Green River were first greeted by a group of fifty to sixty boy s who encircled the new resident, screaming at and intimidating him. Because the group would surround the new resident so tightly that the staff could not see “w hat was going on below shoulder height, ” the new

residen t was ofte n phy sically

assaulted as well. Dr. Richart explained that residen ts at Gree n River we

re subje cted to“grouping” for simple rea sons, such as not having a good opinion of themselves or taking an extra packet of suga r at lunch. After

becoming convinced that the residents were being harmed “as a res ult of using these very controversial emotionally a nd ps yc hol ogically

harassi ng tech

niques,”Dr. Richa

rt beca me conce

rned abo ut the y ouths’ psychologic al state andthe damage that might occur. He recalled having to transport some y ouths to mental institutions because they experienc ed “psychotic br eaks” while at camp. Dr. Richa rt said that Green River had compounded the youths’ fe elings o f isolation and had done noth

ing to contribu te to pro-social behavior, and he was not surprised to learn that many of them su

bsequen tly went to prison.

In Dr. Richart’s opinion, the petitioner’s six and one-half months at Green River intensified his criminal tende ncies, ex acerba ted his an tisocial t endenc ies, and made him see the wor ld as a hostile place. Dr. Richart also believed that the petitioner was c ompletely inappropria te for groupi ng, “because he just wasn’t the kind of person that wanted to talk about his family.” Refe rring to the treatment at Green River as “psy chological torture,” Dr. Richart opined that it was “pr

obably the worst experience of [the petitioner’s] life.”

On cross-examination, Dr. Richart acknowl edged

that some

juveniles may have be

nefitted fro m Green River and that residents, including the petitioner who ha d a substance ab use probl e m prior to going to Green River, would not hav e had ac cess todrugs or alcohol while there. Dr. Richart read into evide

nce so me of the

sta ff’s re ports on the petition

er, which chara

cterized him as ea sily agitated and ha ving a bad temper but also as a capable person, a g ood worker, and “fairly consistent in his supportive leadership in the group.”

Dr. Ch ri s S pe rr y, the Chief Medical Examiner for the State of Georgia, testified c oncerning the number and location of stab wounds found on the victim. He had reviewed the victim’s autopsy report, photographs of thecrime scene, and witness reports of Mary Si ze mo re an d S he ri ff

We ak le y. He testified tha t there were po ols of blood beneath the air conditioning unit and a spot where the victim’s body was found, but none be tween those two areas. Due to the lack of b lood in the

room, Dr. Sperry conc luded t hat the s truggle was “very quick” and may

have occurred in less than one minute. He also stated that all of the wounds, except thevaginal wound, were inflicted very ra pi dl y.-21-

He opined tha

t the victim remained conscious for about fifteen to thirty sec onds following the stab to the hear

t. He expla

ined that once she lost consciou sness, she

felt no pain; it was as if she were under anesthe sia. As a r

esult of th

e wounds to her heart , it was not possible for her to have been conscious for three or four minutes, contrary to Dr. Harlan’s testimony. D r. Sperry further estimated that the victim would have been dead, her heart would have stopped beating, between three and f our minutes after she sustained the heart wounds. On cross-examination, Dr. Sperry acknowledged

that the stab to the heart

could hav e occur

red last, and, if so , the vict im could ha

ve been consciou s until that time.

Dr. Sperry

also testified that it was possible that the assailant had blood

transfe rred ont o his
or her person because the victim had blood on the inside of her legs, and it appeared tha t someone withbl ood y han ds h ad g rip ped her leg s. It also appeared that the victim had been drag ged to the area where her body was found , which would also have caused a transfer of blood from her to the assailan t. He said th at blood is difficul t to wash ou

t of clothing and that if someone committed a stabb ing, washed off the blood, and then immediately got into a vehicle, there would usually be traces of blood tr

ansfer red to the vehicle. Dr. Sperry testified that the wound to the victim’s vagina occurred at or af ter the time of dea

th. He sa id that th e infliction of this type of wound wa s “an indicator of some kind o f

mental problem dealing with . . . women. Hatred or ang er towards women.” He also sa

id that this type of injury

was a “very

specific expression of power of a female victim.”

Dr. Charles W. Harlan, who perfo rmed the victim’s a utopsy , testifie d that he s trongly disagreed with Dr. Sp erry ’s o pinion that the victim’s attack and injuries occurred in less than one minute. He said that the victim lost 950 “cc’s” of blood into her chest. He explained that the heart pumps between25 and 30 “cc’s”per hea rtbeat “ under an optimum situ ation,” but the stro ke volume would be “gr adually diminishing ” becau se of bloo d squeezin g the victim’s hea rt, as the result of the wound, and the loss of blood itself. He further t estified th at an individual is usually conscious approxima

tely 80% of the time that it takes to bleed to death. He believed that it would have taken consider ably longer than thirty

seconds to a minute for

the victim to bleed to death, opining that “she probably lived a minimum o f four to five minutes and that she would have been conscious for 80 percent of that tim

e. I t’s possibl e that she li ved long er than t hat, up to ten to fifteen minutes, but at least a minimum of

four tofive minutes.” In his opinion, the victim’s vaginal wound was inflicted at or near the time of her death, and there was no way to know for

certain whether she

was conscious at the time it

was inflicted. Dr. Harlan acknowledged that Dr. Sperry ha d testified in contradiction to his testimony in nine cases, including the pe titioner’s case.

The proof at

the post- convicti on hearing on the issu e of t he jury venire

consisted of five witnesses and a report prepared by a statistician, Dr. James M. O’Reilly, which conc luded that there
was an under

repres entation

of women

on the jur

y ve nire for Cheatha m County forye ars 1979 t

o 1990. During the pertinent years, the female population of Cheatham County accounted for

50.6 to 50.7% of t

he total p opulation . By

contras t, the per

centag e of wome

n in the Che atham Coun

ty venire was between 10 and 22%.-22-

Connie Westfall, of

the post-conviction defender’s office, testified that she ha d investigated the issue of the composition of the jury pool at the petit ioner ’s 198 6 tria l as we ll as h is res enten cing. At the time of her investigation, only one of the three jury

commissioners for the relevan t t ime period, C.E. Dunn, was able to meet with her. Dorris Winters, one of the commission er s, was deceased; and the other, Martha Adkisson, was confined to a nursing home an d unable to be interviewed

because of her mental condition. Dunn provided Westfall with an aff idavit because he had suffered

a stroke and

was unable to travel to court. Basically , his affidavit stated that they used the voter registration list as the exclusive source of obtaining people for the purpose of filling the jury box, and the jury commissioners met ever y t wo y earsto fill the j ury

box. Ms. Westfall testified that she also interviewed Delores Moulton, Lloy d Harris, the tax assessor, and trustees. She said that when she fi rst sp oke wi th Mr. Harris , he rec alled usin g the voter registration list and later remembered that they

may have use d property lists and the telephone book. Dorothy Jones, the Ch

eatham Co

unty Trustee, said that she had been the trustee for six y ears at the time of the post-conviction hearing and, prior to her se rvice as trustee, her husband was the trustee. She had worked

in the trustee’s officesince 1982. During her y ears of employ

ment in that office, no one ever had been allowed to remove the tax ro ll books from the office. She acknowledged, however, that the tax records were public rec ords andanyone could come into the office and revi ew them. Betty Balthrop, the Cheatham County Proper ty Assessor, said that she had occupied that position since 198 8 and had worked i n the office since 1978. Ms. Balthrop testified that since her employment

in the assessor’s office, no one hadphy sically removed the tax rec ords for

the purpo se of copy ing t hem. She a

ckno wledged

that t he ta x records were public records wh ich exist in Nashville and elsewhere in the state.

D elores Moulton wa s the Chea tham County

Circuit Cou

rt Clerk f

rom 1990 to

1998

. Pr ev io us ly, she se

rve d as the deputy cle

rk, beginning in 1972. Her father , Lloyd Harris, was the Cheatham

County Circuit Court Clerk prior to her tenu re. Ms. Moulton testified that the jury commissioners met every two y ears to charge the jury

box and that the voter registration list was their major source of obtaining names because they had more a

ccess to it. She stated that they startedou t “ ra nd om ly, may be, eve ry sixteenth on

e or twen tieth one down and w

r[o]te the n ameand address on a little jury ticke t.” She explained that each of the jury commissioners took a different section of th e l is t a nd wo rk ed in de pe nd en tl y. W hi le th ey were c harging the box, the only names taken out were the names of those known to be deceased. She further explained that at the end of the two year s, the names in the box were not removed, but new names were a dded.

After the jury box was cha

rged, they gather ed th e ju ry list as needed. E ither a child under the age of ten or Ms. Moulton, wearing a blindfold, picked the names out of the box. Ms. Moulton testified that

the jury commissioners sat toge ther while compiling the names. Names of dece ased persons were discarded. I f school was in session, schoolteachers’ names were se t aside. Students away at college were omitted from the list. Also, at times, if they knew a woman ha d just had a ba by, they removed he

r name. They

compi led a list of 15 0 or more names, which made up the-23-

sheriff’s venire. The sheriff summoned these persons to court where each wa s assigned a number. The judge then drew twelve numbers out of a bo x, an d t ho se pe rs on s c om pr is ed th e g ra nd ju ry. Ms. Moulton testified that Dorris Weakley w as the sheriff in 1986 and 1989. During his administration, only thirty to fifty

prospective jurors out of 150 actually appeared in court as summoned, but the percentages increa sed drastically unde r the next sheriff’s administration.

On cross-e

xamination, Ms. Moulton testifie d that, in a

ddition to th

e voter r egistr ation list, they also used

the telep hone book

and tax re cords to

ra nd om ly s elect names, although the voter registrationlist was the main sour ce. She b elieved

they followed the Tennessee st

atutes in gathering and preparing the

jury venire. She said the commissioners “never discriminated any one because of race, color, or nationality or men or women.” She recalled

that Martha Adkisson complained if she thought too many women wer

e being put on the list; however, she believed Ms. Adkisson’s reason for doing so was “to equal out . . . the men and the women.”

Llo yd Harris, Delores Moulton’s father, served as the Cheatham County Circuit Court Clerk prior to Ms. Moulton, occupying the position for twe nty-four years. He testified that the three jury commissioners met ever

y tw o to three

months toselect names, and he recalled Junior Dozier, the tax assessor, providing

him with name s from the

tax lists. He used the telephone book for this purpose, altho ugh most of the na mes were taken from the voter registration list. He testified that Martha Adkisson was a schoolteacher and sometimes set aside the names of teachers because, at that time, there was a shortage of substitute teachers. He also rec alled tha t, a few t imes during harv est

season, a farmer’s name was set aside, and, during the 1970s and 1980s, it was easy for women with young children to get out of serving on the jury , but thatchanged through the y ears. He stated

that the jury box was charged about ever y two y ears. He testified that they went down the voter re gistra tion list, wrote down every

twentieth or twenty-f

ifth name, placed it in the box, and tried not to discrim

inate agains tany

class of potentia l jurors. Harris said that the voter registration list, the tax list provided by Do zi er , a nd th e t el ep ho ne bo ok s w er e t he on ly s ource s used in the jury selection at the time of the petitioner’s 1986 trial and in 1989.

II. ANALYSIS

In his argument on appeal, the petitioner has set out five cla ims, three asserting that counsel
were ineffective at his 1986 trial, his 1989 resentencing hea ring, and o n the dire ct appeal of his conviction, one asserting that he was prejudiced because of the e xclusion of women fromthe jury panel, and one c laiming t hat imposit

ion of the death pe nalty violates various of his rights afforded by the fede

ral and state constitutions.

A. Standard of Review

In order to determine the

compete nce of c ounsel, Tennessee courts have applied standards developed

in federal case law. See State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Cr im. App. 1997) (noting that the same standard for determining ineff ective assistance of counsel that is appl ied i n federal cases also applies in Tennessee). The United States Supreme Court articulated the standard-24-

in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), w hich is widely accepted as the app ropria te standard for all claims of a convicted petitioner that counse l’s assistance was def

ective. The stand ard is firmly gr ounded in the belief that counsel play s a role that is “critical to the ability of the a dversarial sy stem to produce just results.” Id. at 685, 104 S. Ct. at 2063. The Strickland standar d is a two- prong te st:
First, the defendant must show that counsel’s perf or mance was deficie nt. This requires showing that counsel made errors so serious that counsel w as not f

unct ioning as the “counsel” guara nteed the defendant by the Sixth Amend men t. Second , the def endant mu st show that the d

eficien t perfor mance pr ejudice d the def

ense. Th is requires showing that

counsel’ s error s were so

serious a s to deprive the defendant of a fair trial, a trial whose r esult is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient pe rfor ma nc e” in th e f

ir st pr on g o f t he te st in th e fol lo wi ng wa y:
In any ca se presenting an ineffectivene ss claim, the performance inquir y must be whether couns el’s assi stance w as reas onable considering all th e circu mst ances. . . . No particular set of detailed rules for counsel’s conduct ca n sat isfactorily take a

ccount of the variety of circum stances f

aced by defense counsel or the range of legitima te decisi ons regarding how best to repr esent a criminal defenda nt.
Id. at 688-89, 104 S. Ct. at 2065 . The pet itioner mu st establi sh “that c ounsel’srepres entation fell below an obj ectiv e stan dard o f reaso nable ness u nder p revail ing professional norms.” House v. St ate , 44 S. W.3d 508, 5 15 (Te nn. 20 01) (ci ting Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 1996)). As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show that there is a reaso nable

probability that, but for counsel’s unpr ofessional errors, the result of the proceeding wo ul d h av e b ee n d if fe re nt . A re as on ab le pr ob ab il it y is a pro bability sufficie nt to undermine confide

nce in the outcome .” 466 U.S. a

t 694, 104 S. Ct. at 2068 ; see also Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1 994) (co ncluding that petit ioner fa iled to est ablish tha t “there is a
reasona ble probability that, but for counsel’s e rrors, the outcome of the proceedings would have been different”).

Courts need not approach the Strickland test in a sp ecific o rder or even “a ddress both componen

ts of the inquir

y if the defe ndant mak

es an insufficien

t showing on one.” 466 U.S. at 697, 104 S. Ct. at 2069; see also Goad , 938 S.W.2d at 370 (stating that “failure to prove either def iciency or prejudice provides a sufficient basis to deny relief on the ineffective assistance cla im”).-25-

By statute in Tenne ssee, the petitioner at a post-conviction relief hearing has the bur den of proving the allegations of fact by clear and convincing evidence

. See Tenn. Code An n. § 40-30- 210(f) (1997). A petition bas ed on ineffe ctive assistance of counsel is a single gr ound for relief, thereforeall fa ctual a

llegations must be presented in one claim. See Tenn. Code Ann. § 40-30- 206(d) (1997).

The procedure which we follow in our review was explained in

detail by our supreme

court in State v. H oneycutt , 54 S.W.3d 762, 766-67 (Tenn. 2001):

The issue whethe r a pe titioner has been denied the effective assistance of co unsel is a mixed question of law and fact. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). A trial court's findings of fact are ent itled to sub stantial d

efere nce on a ppeal unl ess the evidence preponderates against thos e f indings. See Henley

v. State , 960 S.W.2d 572, 579 (Tenn. 1997). Under this standa

rd, appe llate cou rts do not substitute their own inferences for tho se dr awn by the trial court, and questions concerning the credibility of the w itnesse s, the weight and value to be g ive n their testimony, and the factual issues raised by the evidence are

to be resolved by the

trial judge. Henley , 960 S. W.2d at 579. However, this Court reviews de novo the application of law to those f ac tual findings to determine whether
couns el's performanc e was deficient or whether the defenda nt was prejudiced

by that deficiency. Thus, when eva luating a claim of ineffective assistanc e of coun sel, we revi ew the trial court 's find ings of fact under a de

novo standard, accompanied by a presumption that the finding s are co

rrect unless th e pr eponderance of the evidence sugge sts oth erwi se, while the trial court's conclusions of law are reviewed de novo with no presumption of correc tn ess. Fields v. State , 40 S.W.3d 450, 457-58 (Tenn. 2001).

B. Ineffective Assistance of Counsel at 1986 Trial

The petitioner alleges that trial counsel were inef fective in failing to inte

rview and effectively cross-examine Ken Jones, to object to Sheriff Weakley’s par ticipating in the voir dire of prospective jurors, to discover impeachment evidence, and were ineffective as well because of their lack o f experience and r

esource s. We will re

view thes e claims. 1. Failure to Interview and Effectively Cross-Examine Ken Jones

The petitioner argues that trial counsel sanctioned the perjured testimony of Ken Jones at the 1986 tr ia l a nd fa il ed , a t t he re qu es t o f S he ri ff We ak le y, t o e ff

ec ti ve ly c r oss-examin

e Jones, the se a mounting to an act

ual conf lict of int erest fo r the tria l attorne ys. As we have set out, Ken J one s acknowledged

at his depositio n in 1999 tha t he was a t the CeB on Motel on

the day of the mur

der to-26-

rent a room to b e with his paramour. However, at the petitioner’s 1986 trial, Jones had testified that he was at the motel because he needed to use the re stroom. Trial counsel Stack acknowledged that he knew Joneswas at the

motel to rent a room

with his paramour, but did not cross-examine him on this fact. Sheriff Weakley did not wa nt Jones to be embarrassed and had assured trial counsel that Jones knew nothing about the murder.

To support hi s argum

ents as to

counsel’ s limiti ng his cross-examination of Jones, the petitioner relies upon State v. Thompson , 768 S.W.2d 239 (Tenn. 1989), in which our supreme court explained the broa d scope o f the rig

ht to couns el:

Pl ai nl y, an accused is entitled to zealous representation by an attorney unfettered by

a conflicting interest. To establish a denial of the sixth amendment right to counsel, it is sufficient to show that an actual conflic t existed. I

f an atto rney actively repres ents conflicting interest s, no analysis of pre judice is neces sary ; it is pres umed that his divided interests adversely affected his representation.

Id. at 245 (citations omitted). Th e petitioner ar gues that trial counsel had an actual conflict of interest and, therefore, the second prong of the Strickland test, requi ring a showing of preju dice, is eliminated, the petitioner contending that “an actual conf lict or an apparent conf

li ct ma y exist
a nyt ime a lawye

r cannot exercise his or her independent professional judg ment free of ‘compromising influ ences and loy alties.’” State v. Culbreath , 30 S.W.3d 309, 315 (Tenn. 2000) (citi ng State v. Ta

te , 925 S.W.2d 548, 554 (Tenn. Crim. App. 1995)). Additionally, the petitioner argues that “[w]he

n the fai rness of a tria

l is compromised by an a ctual conflict of interest, the conclusion that finding that trial counsel’s performance, per se , deprivedthe defe ndant tohis right to a fair trial is not subject to ‘harmless error analy sis.’”

As to these arguments, the State responds that any a greement between

Sheriff Weakley a

nd trial counsel not to question Ken Jones abo ut his reason for being at the CeBon Motel did not constitute an actua l conflic t and, thus , cannot w arrant a presum p tion of prejudice. The petitioner disputes th

is analy sis, citing

Rule 1.7( b) of the Rules of Pr

ofession al Conduc t which pr ovides:

A lawyer sha

ll not represent a client if the repre s entation of that client may be

materially limited

by the lawy

er’s responsibilities to another client or to a third person, or by

the lawy er’s own interest s, unless: (1) The lawye

r reasonably

believes the representation will not be adversely

affected; and (2) The client consents in writing after consultation[.]1 As the pe titioner no tes in his br ief, thi s ru le i s a part of the new Rul es of

Pro fessiona l Con duc t that cam e into effect in M arch 2 003

. -27- Tenn. Sup. Ct. R. 8, RPC 1.7(b) (2003). 1 The petitioner notes that the disciplinary rule that was in effect in 19 86 provide d th at “[a] lawye r shall decline pr

offere d employ

ment . . . if

it would lik

ely involve the lawyer

representing differing

interests.” He responds to the S tate’s cont ention that prejudice was not shown by arg uing that all he has to do is “undermine confidence in theoutcome of the trial.” See Kyles v. Whitley , 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995). To support his argument in this regard, the petitioner cites Jones v. Kentucky , 97 F.2d 335 (6th Cir. 1938), where the court determined that the conviction of the defendant wa s based in part on perjur y a s follows:

that “the fundamental conceptions of justice which lie at the base of
ou r ci vil and political institutions” must with equal abhorrence condemn as a travesty a c onviction upon perjured testimony if later , butfortuna

tely not too late , its false

ness is discov ered, and that the state in the one case as in the other is required to aff ord a corrective judicial processto remed y the alleg ed wrong , if const itutional r ights are not to be impaired.

Id. at 338

. This court has explained the showing which must be made to establi sh that counsel had a conflic t of inter

est:

An actual conflict

of intere st is usuall

y defined in the context of one attorney representing two or more parties with diverg ent interes ts. A n actual conflict of interest occurs when "r egard for one d uty tends to lead to [t he] disregard of another." State v. Reddick , 230 Neb. 218, 222, 430 N.W.2d 5 42, 545 (1 988); see Gardner v. Nashville Housing Authority , 514 F.2d 38 (6th Cir. 1975). In Ford v. Ford , the court declare d a confli ct of inte rest whe n an "at torney was plac ed in a position of divided loyalties." 749 F.2d 681, 682 ( 11th Cir. 1985).

The right to

counsel require s complete devotion t

o the inte rest of the defe ndant. State v. Knight , 770 S.W.2d 771 (Tenn. Crim. App. 1988). When counsel is unable to provide a "zealous representation

. . . unfettered by

conflicting interests," there has bee n a breach of the right to the effective assistance of c ounsel. Statev. Thompson , 768 S.W. 2d 239 (Tenn. 1989). In Cuyler v. Sullivan , the United States Supreme Court held that because there is a breach of loy alty in cases involving a confli ct of inte rest, pr ejudice is presumed. 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). Unless the petitioner ca n-28- establish that his counse

l "activ ely represented conflicting interests," he can not

establish ed [sic] the

constituti onal pre dicate

for his c laim. Id. at 350. To

establish a cla i m based upon conflict of interests, the conf li ct must be actual and s ignific ant, not ir releva nt or "me

rely hypothetical." Ho wa rd Cl if to n K ir by v. State , No

. 03C0 1-930 3-CR-00074 (Tenn. Crim. App., at Knoxville, Sept. 28, 1994).

Jesse Jameel Da

wan v. Sta

te , No. W2001- 00792-CCA-R3-CD, 2002 WL 1483210, at *2 (Tenn. Crim. App. Mar. 11, 2002), perm. to appeal denied (Tenn. Sept. 23, 2002).

The petitioner a

rgues t hat because the attorney s allowed Mr. Jones to testify falsely at the 1986 trial and agreed not to question Mr. Jones about why he was present at the CeBon Motelon the day of the murder, his trial was not a true adversa rial proc eeding

and that, by not investig ating, h is attorneys missed an opportunity to develop and present additional defense theories.

The Eighth Circuit explained the limited circ umstances in which prejudice may be presumed:

W e believe

there is m

uch to be s aid in fa

vor of hol ding th a t Cuyler’s [Cuyler v. Sullivan , 446 U.S. 335, 100 S. Ct. 1708 (1980)] rationa le favoring the “almost per se rule of prejudice” does not a

pply outside the context of a conflict between codefendants or se rial defenda nts. As Strickland explained, some finding of prejudice is an essential factor in proving ineffective assistanc e of counse l. Under Cuyler , loyalties divided between c o defenda nts necess arily will infect the very cor

e of at least one’s defense, and prejudice should be pres umed

. Howeve

r, the sa me impact

will not be

found au tomatica lly in other co nflict situ ations. Th e latte r may hav e such limited consequences that they will not invariably demonstrate prejudice and “a den ial of the

‘right to have th

e effective as sistance

of counse

l.’ ” Cuyler , 446 U. S. at 349, 1 00 S. Ct. 1 708 (q uoti ng Glasser [v. United States ], 315 U .S. [60 ], 76, 62 S. C t. 457 [( 194 2)]. I n those ca ses, sound reasoning supports requi ring a defendant to prove actual prejudice under the Strickland standard in order to meet the constituti onal stan dard for ineffe ctive as sistance

of counse

l.

Caban v. United States , 281 F.3d 778, 782 (8th Cir. 2002).

While trial counsel did not question K

en Jones asto why

he was a t the motel , this fact does notresult in their representing the interests of Sheriff Weakle y. A ccordin gly , to preva

il on this claim, the petitioner must establish that he was prejudiced by trial counsel’s no t ascertaining and cross-examining Ken Jones ’s true r easo n for being at the

motel, thusdeprivin g the jur ors of this knowl edge in addition to missing the opportunity to cross-examine Verned it h White. We w ill-29-

review this argume

nt along withthe rela

ted claim , made at

oral ar gument, that tria

l counsel could have cr eated r esidual doubt by

properl y de aling w ith Ken Jone s.
In his reply brief, the

petitioner points to various portions of the testimony to establish that Ken Jones, himself, might have killed the victim. The petitioner explains how he might have gotten the keys to the victim’s car without confronting her, surmising “because of the warmth on the day at issue, [the victim] was wearing only a very lig ht weight summer shift” and that her maid ’s coat, where she kept her key s and wallet, “was most likely ha nging on thecleaning cart, which gave [the petitio n er] easy ac cess.” The petitioner argues that the state ments of Jones and White that they neither saw nor heard any

thing “that was connected with the crime” a re “unbelieva

ble.” Th e victim’s schedule to clean the rooms, the petitioner asserts, was such that she w ould not have reached room 21, where she was killed, until “noon,” resulting in Jones and White at least seeing her. The petitioner notes that, at the 1986 trial, Jones said he did not know whether the victim

was male
or female, ye

t he told Ma

xey K ittrell, a noth er witne ss , that “a

woman ha

d been sta bbed” a nd told Wh ite that “there was a dead woman in there.” This testimony, according to the petitioner’s argume nt, demonstrates “knowledge that no one bu t the perpetrator could have known.” The petitioner points to other discrep ancies, in cl ud in g J on es ’s te st im on y th at th e “ ra nd om ly s el ec te d k ey” which he picked up “just happened to open the lock on room 21, the murder room”; and the fact that White testified that she andJones were at the motel from 9:00 am until the emergency call, which
was made at 2 :36 p.m., le aves two hours of Jones and Whit e’s act ivities “u naccou nted for .” This time peri od, acc ording t

o the petitioner’stheory , allowed Jones to drive White to Dic kson and “to cleanse himself and his van of the victim’s blood.” The petitioner surmises that Jones then returned to the motel to de termine whether the motel owners had come back and found the body , and discovered

that this had not occurred. Finally , according to this argument, “by belatedly announc ing that a woman had been stabbed t o death, Jones successfully removed himself a s a suspect and th er eb y, with the help of

his friend the sher

iff, wasable tokeep himself from being investigated by the defense and by

the prosecution.”

The post-conviction court concluded that the petitioner would not have benefitted from the claim tha t Ken Jones h ad killed

the victim :
Petitioner insists tha

t his trial c ounsel sho

uldhave attempted to cast suspici on upon Ken Jones as a possible perpetrator of the
c rimeand that counsel was ineffective in allowing Mr. Jones t o “perjure” hi mself in hi ding his t rue rea son for be

ing at th e hotel. While counsel had brough t out that there had been another strang er in the area of the CeBon Motel that morning, they did not develop any reason for the ju

ry to consider that someone other than Petitioner committed the offense. Petitioner asserts that his trial counsel s hould have suggested that perhaps, Ms. Jenkins had thwarted Mr. Jones[’s ] planned sexual liaison with Ms. White and that this was a motive to kill her. He further sugg ests that their theory mig ht explain the twenty dollar bill under Ms. Jenkins’s watch b and [sic] and the-30- careful insertion

of the kni fe intoher vagina. Trial counsel knew of the ac tual reason for Mr. Jones[’s] presence at the motel, hav in g learned it from the sheriff. Of course, they could have inv es tigated further and lear ned the de tails of the encounter but the Court does not find th at th e i nf or ma ti on wo ul d h av e b ee n p ar ti cu la rl y u se ful. To present such a farfetched theory

with no sup

porting evidenc e would
cause a loss of cred

ibility by t he defe nse at trial. Admittedly, if trial counsel had lear

ned the e xact deta ils of the m

ovementsof Mr. Jone s, Ms. White and the person(s) in the maroon or brown car, the y c ould have “muddied the water” concer ning the details of the discovery

of the body . This woul d have been insu f ficient, however , to cast
reasona ble doubt on the guilt of Petitione r given the fact that Petitioner was sh own by the proof to ha ve taken the deceased’s car key s, presumably fr

om her billfold ( in which she habitually kept them), and stole

n her ca r. To ac cept Petitioner’sargume nt th at h e didn’tkill the deceased but merely took her c ar key s from her body (which was wrapped

in a blanket) and stole her car would require the tr ia l j ur y to de pa rt fr om sp ec ul at io n a nd en te r i nt o f an ta sy. Missing in the petitioner’s theory, w hich the post-conviction court described as “farfetched,” is any motive or re ason why Jones would want to kill the victim, except the petitioner’s suggestion, recounted in the post-conviction’s findings, that the victim was killed because she had “thwarted” the sexual liaison between Jones and White. In effect, the petitioner argues that fift y- one-y ear-ol d Ken Jones, accompanied by his twenty -one-ye ar-old girlfriend, Vernedi th White, following their normal Sunday morning r outine and checking into the same motel where they had been together approxima

tely 100 times before and were known by the staff, i nclud ing the victim, stabbed the victim to death, with Jones driving White to another location, cleaning blood from himself and his vehicle, and then r

eturning to the scene to report the crime and wait for law enfo rcemen t office rs to
a rrive. We agree with the post-con viction c ourt that, given th e streng th of proo f again st th e petitioner, making the argument that Ken Jones was the actual killer would have been “farfetched” and could have resulted in a loss of credibility for the defense.

As our supreme court explained i n St ate v. McKinney , 74 S.W.3d 291 (Tenn. 2002), “‘[r]esidual doubt evid

ence,’ in gene

ral, may consist of

proof ad mitted dur

ing the s entencing phas e that indicate s the def

endant di d notcommit the offense, notwithstanding the jury 's verdict following the guilt phase.” Id. at

307 (c itin g Statev. Hartman , 42 S.W.3d 44, 55-56 (Tenn. 2001)). Residual evidence may be that whi ch relates “‘t o the circumstances of the crime or the ag gravating or mit igating ci rc um st an ce s, in cl ud in g e vi de nc e w hi ch ma y mi ti ga te [t he de fe nd an t’ s] cu lp ab il it y. ’ ” Hartman , 42 S .W.3 d at 56 (quot ing State v. Teague , 897 S.W.2d 248, 256 (Tenn. 1995)). We previously

have set out the evidence that the petitioner arg ues could hav e been u sed to establish residua l doubt, consisting primarily of c ontrasting testimony from the jur y procee dings in 1986 and 1989 and tha t o f Verne dith White a t the post- convicti on hearing. Asked at the po st--31-

conviction hearing

about the

signific ance of

this testimo ny, one of pe ti tioner’s t rial counsel responded

to post-conviction cou nsel: “To be honest with you at this point and time I don’t remember

putting all of these time periods together as y ou are, as you

have done right

now.” Th

us, most of the inf

ormation r

elied upo n by

post-con vic tion counsel was before the jury but was not utilized, as post-c onviction counsel h as done, to make it appear that Ken Jones might have been the perpetrator. The petitioner argues that, ha d Vernedith W hite testified in 1986 or 1989, her “eyewitnessinformation . . . very we ll could have created reasonable doubt in the minds of the jurors and changed the

outcome of the trial.” We respec tfully

disagr ee with th is assert ion beca use White said that Jones was not in the motel room long enough t o have killed the victim. Thus, White’s testimonywould nothelp the p etitioner unless the

jurors be lieved he r as to the various times of the events so as to make it ap pe ar that Jones could have been the killer, but disbelieved her when she said that Jones could not have killed the vi ct im . W hi le Jo ne s w as no t t ru th fu l i n h is tr ia l t es ti mo ny, and its acceptance by

trial counsel prevented White from being ide n tified as a witness, their true purpose for being at the hotel would appear to be irrele vant to the guilt, innocence, or punishment of the petitioner. Thus, we concur with the post-conviction court’s determination that the pe titioner
was not harmed by the f

act that trial counsel neither discovered Ken Jones’s true purpose for being at the motel nor that Vernedith White was with him. See State v. A ustin , 87 S.W.3d 447, 459 (Tenn. 2002) (while trial court erred in excluding from evidence vice squad rep ort which may have identified other pe

rsons with

motive to ki ll the victim, the “essence” of the report was put be fore the jury during cross-examination of a witness, so the error was harmless). We conclude, further, that the petitioner would not have created residual doubt by arguing that Ken Jones had kille d the vict im. 2. Failure to Object to Sheriff Weakley’s Participation in Voir Dire

The petitione

r argu es he wa s prejudi ced by the fac ts that She

riff Wea kley was involv ed in the voir d ire and, because

he parti cipated

in the inve stigatio n, testifi ed at the trial, and “[s]ure

ly

. .

. possessed an opinion as to [the petitioner’s] guilt before the trial and there [was] a great potential for the sheriff to hand-pick jurors sy mpathetic to the prosecution.” Ad di tionally, the petitioner argues that “a jury c ould easily associate with the credibility of the sher iff who testified against [the petitioner].” Thus, according to the petitioner, he “was de nied due process and

a trial by a f

air jury.” The State re sponds tha

t, as to this argument, the petitioner included no citations to the record required by Rule 10(b) of

this court, which would demonstrate the degree of participation by Sherif f Weakley in the jury selection proc ess. Additionally, the State arg ues that this issue has been waived because no proof was presented

as to it during the hearing on the post-conviction petition. We agre e with the State’s arguments and conclude that this claim has been w aived.

3. Failure to Discover Impeachm ent Evidence

The petitioner contends that trial counsel wer e ineffective by faili ng to discover impeachment evidence that State’s witness Daniel Blair, on the day that he had given the petitioner a ride, was on felony probation for theft of livestoc k; t hat State’s witness Victoria Hines Daniel Furlong wa s an al coholic and had b een drin

king the day she suppo sedly

saw blood

on the pet

itioner’ s s hirt; tha t State’s witness Ernest Daniel also was an alcoholic and had not testified completely truthfully about-32-

Furlong’s drinking; and that Melanie Chandler would have contradicted her mother’s testimony that the petiti oner ca

rried a knife wh ich he ha d been seen sharp ening. We will con sider the se claims

. As to Daniel Blair, trial counsel acknowledg ed that they did not investigate his criminal hi st or y. The petitione

r submits th at th e c om bi na ti on of th e i mp ea ch me nt ev id en ce of Bl ai r’ s fel on y, coupledwith discrediting his testimony that he saw blood on the pe titioner’s shirton the day of the murder, would have affected his credibility . The State argues that Blair’s being on probation made him more credible because, in admitting that he had been in Tennessee, he admitted also that he had violate d his p robation . The post-convic tion cour t found tha

t effec tively

impeach ing this w itness would have been unlikely . W e agree the petiti oner’s c laim is spe culative that Bla ir succe ssfully could have be en impea

ched with this addi tional information and conclude, accordingly , that the record supports the post-conviction court’s determination.

The petitioner also contends that trial counsel were ineffective in fail ing to discover that Victoria Hines Daniel Furlong was an alcoholic and had been drinking on the day she testified a

t the petitioner’s trial. At

the post-conviction proceeding, she contradicte d much of he r p ri or te st im on y, as we have pre viously

se t out . The post-conviction court rejected Furlong ’s entire testimony as “incredible and worthless.” The recor d supports this determination.

Ad di ti on al ly, the petitioner contends that counsel were ineffective for failing to discover that Ernest Daniel, V

ictoria F urlong’ s husband

at the time

of the pe

ti ti oner’s trial, was not truthful regarding the amount and extent of his wife’s drinking. The post-conviction court found Daniel to be in contempt of court at the post-conviction proceeding because he had been drinking pri or t o testi fying. The c ourt fo und the only fact that it could dete rmine with respect to Daniel’s and Furlong’s testimony was that they each lied under oa

th at eitherthe trial or the post-conviction hearin g. Given this fact, the court determined that interviewing either of these witnesses would not have benefitted counsel in impeaching them at trial. The record supports this conclusion.

Counsel testified that they did not interview Melanie Chandler or Virginia Chandler prior to trial. Melanie Chandler testified at the hearing that her mother had animosity toward the pe titioner and drank heavily. Melanie Chandler admitted that she was not on good terms with her mother. The post-co nvi ction court noted that Chandler “glance[d] affectionate ly” at the petitioner dur

ing the hearin g, mak in g it obv io us t hat she st il l h ad f eel in gs f or h im . In conclusion, the court found that the impeachment

value of Melanie Chandler’s testimony was “marginal, at best.” We concur with this
assessme nt. Accord

ingly , as to this claim, we agree with the conclusion of the post-conviction court that the petitioner failed to establish prejudice.

4. Lack of Experience and Resources of Counsel

The petitione

r contends both

that his counsel were too inexperienced to try a capital case and failedto represent him zealously bec ause the compensation provided appointed attorney s was too low. The court determined that these argume nts were without merit, and the record sup po rts this conclusion. We have pr eviously held that inexperie nce of c ounsel al one does not equat e to-33-

ineffective assistance of counsel. Ant hon y J. Robinson v. State , No. 02C01-9707-CR-00275, 1998 WL 538566, at *2 (Tenn. Crim. App. Aug. 26, 1998). Additionally, the a rgument that the State’s compensation of appointed counsel contributed to theineffectiveness of counsel has been rejected by this court. See Henry

Eugene Hodgesv. State , No . M1999 -005 16-CC A-R3 -PD, 2 000 WL 1562865, at **21-2 2 (Tenn. Crim. App. Oct. 20, 2000), perm. to appeal denied (Tenn. Mar. 26, 2001).

C. Ineffect ive Assist ance of Couns el at 1989 Resente ncing

As to this proceeding, the petitioner argue s that counsel were ineff ective in fa iling to investig ate his background and pres ent eff

ective mi tigation proof; f ailing to challen ge the h

einous, atrocious, and cruel aggra v a ting cir cumstanc e; and fa

iling to g ive a clo sing ar

gument. We will consider these cl aims. 1. Mitigation Proof

a. Fam ily Backgr

ound/Proo

f of Abuse

In its opinion affirming the 1989 resentencing of the petitioner, our supreme court set out the mitigation evidence presented in his behalf:

In m itigatio n, the def

endant pr esented proof tha

t, whil e i n p rison o n this conviction, he had presented no serious disciplinary problems and posedno threat to the prison population. The defendant also presented proof of a tro u bled childhood. His father had abandone d the fam ily when the defe ndant was young . His mother had an alc oho l p rob lem . In his teens the defendant became involved in sniffing gasoline and glue a nd began to abuse alcoho l and dru gs. He also exhibited self-destructive behavior. Dr. Pamela Auble, a clinical psychologist, testified that the de fendant was suffering from
a paranoi d persona

lity disorder and dysthy

mia, or chronic depression. According to Dr. Auble, the defend ant wo uld s uppre ss hi s feel ings until they "boiled up" und e r stress. In he r opinion, the defe

ndant, who had retu

rned fr om turbule

nt visits wit

h his pare nts and girlfriend shortly before he committed the murder, was under stre ss when he killed the victim

. Dr. Ann Ma rie Char vat, a sociologist, also testified abou t the da maging effect of the circumstances of his childhood on the defe ndant.

Hines , 919 S.W.2d at 577. The supreme court ch aracterized the petitioner’s mitigation proof as “extensive.” Id. at 584.-34-

The petitioner argues that counsel should have calledhis family members to testify regarding th e phy sical, sexual, and emotional abuse he suffered. Counsel did not call family members as witnesses at resentencing, presenting mitigation proof of

the petitioner’s abuse thr

ough two experts. The petitioner further contends that additional experts should have been employed, and additional proof regar

ding his t reatmen t at Gree n River B oysCamp should have be en prese

nted. The

post

conviction court notedthat the detailed mitigation evidence presented at the post-c onviction hearing
was prepared by

two attorneys, three

investigators, and severa l medical ex perts over a three-y ear period, stating that that period of time was “far in excess of the time which would have been

allowed to prepare for even a ca

pital trial.” The court found theadditional mitigation proof of the petitioner’s family background and abuse, presented at the post-conviction hearing, was essentially the same as that presented at the resentencing, simply more i n-d epth. Accordingly , the court determined that
even with the additional mitigation proof, the agg ravatin g circumstance s would ha ve contin ued to outweig h the mitig ating c ircumsta nces.
This court ha s stated th at “[a]n inv estiga tion so ina

dequate as to fail to formula

te an ‘a ccurat e life profile’ of the defendant may be the ba sis for po st -conviction re lief. Yet the extent of investigation required is largely dependent upon information supplied by the defendant.” Bates v. State , 973 S.W.2d 615, 633 (Tenn. Crim. App. 1997) (citi ng Jackson v. Herring , 42 F.3d 1350, 1367 (11th Cir. 1995) ; Burge

r v. Kemp , 483 U.S. 776, 795, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987)).

In Goad v. Sta

te , 938 S.W.2d 363 (Tenn. 1 996), our supreme court set out the relevant factors t o consider when determiningif prejudice had resulted from a trial attorney ’s failure to presen t mitigating evidence during the pena lty p hase of a capital t rial. There, the court found that counsel’s failure to investigate, explore, and prepar e the pro posed mitig ating evidence was not “ ‘the re sult

of
reasona ble profess ional judg

ment’ an d ‘fell ou

tside the w

ide rang e of prof

essionally comp etent assistance.’” Id. at 371. If counsel’s per formance is deficient, the court must next determine if the p etitioner has discharged the duty

of proving that prejudice resulted from counse l’s performan ce
. Id. The court explained how this determination is made:

[If the] alleged prejudice under Strickland involves counsel's failure to present mitigating evidenc e in the pe nalty phase of a capita l trial, several factors are

signific ant. Fir st, courts have analy zed the nature and extent of the mitigating evidence t hat was available but not presented. Second, c ourts h ave co nsidere d whethe r substan tially similarmi tigati ng evidence was presented to the jur y in either the guilt or penalty phase

of the proceeding s. F inally, the courts have considered

whether there was such strong e vidence of aggra

vating factors that the mitigating evidence would not have aff ected the jury's determination.

Id. (citations omitted).2 As supplemental authorit y, the peti tioner reli es on W iggins v. S mith , __ U.S. __, 123 S. Ct. 2527, 2532, 156 L. Ed. 2d 4 71 ( 200 3), wh ere the petition er had sough t post-co nviction relief from his capita l convi ction, all eging t hat tri al counsel “had render ed consti tut ionall y defect ive as sis tance by fail ing to invest igate and present mitigating evidence of his dysfun ctiona l back grou nd.” Tria l coun sel utilized the de fense tha t anoth er pe rson h ad killed the victim and d id not prese nt evi dence they had showin g the pet iti oner’s “li mited intell ectual capaciti es and childlike emo tional state

. .

. and t he abs ence of

aggr essi ve patter ns i n hi s beha vior , hi s capa cit y f or empa thy , an d his desire t o function in t he world[.]” Id. Counsel elected not to use specif ic inf ormation that t

he petiti oner and his sibli ngs were left “home alone for days, forci ng them t o beg for f ood and to eat paint

chips an d garbage,” and that he had been “gang-raped” on more than one o ccasio n. Id. , 123 S. Ct. at 2533. The court det ermined that t rial counsel’ s decision not to ut ilize background inf ormat ion was one which “ did not r efle ct reas onable profe ssi onal judgment ” and that the pet iti oner had been prejudi ced
as a result, there being a reasonable probability that t he jury would have returned wit h a different

sentence, had the y known this inform ation. Id. , 123 S. Ct. at 2 541 -42. In the pres ent appeal , trial counsel present ed subst anti al evi dence at the sentenci ng hearing, al though not to th e exten t that was d one at the po st-conv iction he aring. W e find tha t W iggins is not applicabl e. -35- In the present

appeal, the post-conviction court found tha t counsel were no t deficie

nt in their representationof the petitioner, saying that “[i]n view of the overwhelming strength of the aggravating

factors in Petitioner’s case . . . the mitigating fa ctors would

not have affected the jury ’s determination. The jury would be r equiredby logic a

nd common sense to find that the aggrava ting circumstances outweighed the effect of the mitiga ting factors beyond a reas onable doubt.” Ac co rd in gl y, under the principles enunciated in Goad , the post-conviction court found that the petitioner was not pr

ejudice d by

the fac t that coun sel at the sentencing hearing ha d not presented mitigating evidence in the detail that was done at the post-conviction hearing. We conclude that the record supports this determination. 2

b. Seroto nin Defense

The petitione

r contends that re sentenc in g c ounsel were ineffective for fa iling to present evidence of his ser

otonin def

iciency . As to this c laim, the post-con viction c ourt dete

rmined tha

t, basedupon the testimony of the witnesses at the hearing, the serotonin evidence was not re asonably availab le to the petitioner’s resentencingcounsel, since it was not known to them and could not have been discovered by

the exercise of reasonable diligence

. Dr. Rossby acknowledg ed that he did not work on developing this issue in a criminal case until approximately 1992, three ye ars after the petitioner’s resentencing trial. Further, he said that he di d n ot ac tu al ly t es ti fy on the i ssue of serotonin until 1999, ten year s after the petitioner’s resentencing trial, and he knew of no one who

had testif ied on thisissue prio

r to that. A s the postcon viction court stated: “Petitioner’s counsel at re-sentencing could not reasonably

have bee n expected to search for experts on a subject which they did not know existed.” The record supports this conclusion. c. Heinous, Atrocious, and Cruel Aggravating Circumstance

The petitione

r argu es that c ounsel were ineffective at rese ntencing because they

did not chall enge the testimony of Dr. Charles H arlan regarding the leng th of time the victim was conscious-36-

and could have lived or experienc ed pain fol lowing the stabbing. At resentencing , the petitioner offered the testimony of Dr. Chris Sperry who disagreed with Dr. Harlan’s te stimony rega rding the victim’s consciousness and amount of time she could have s urvived f oll owing the wound to the heart. Dr. Sperry opine d that the victim would have been conscious only fifteen to thirty seconds following the stab wound to the heart, as opposed to Dr. Har lan’s tes timony

that the victim

lived four to five minutes following the wound to the heart and would have been conscious approximately 80% of that time.

The post-con

viction c ourt found counsel were de ficient in failing

to investi gate and introduce testimonyto refute Dr. Harlan’s conclusions, determining , however, that the petiti oner was not prejudiced

by the lack of suc

h testimony. The

court found that the jury w ould have been much more persuaded

by t he testimo ny o f the pat

hologist who performed the autopsy , as opposedto one who drew conclusions from the autopsy r eport andphotogr

aphs. Accordingly , the court concluded that the tes timony of Dr. Sperry would not have resulted in reasonable doubt that the victim was conscious during the apparently fina l wound to the vag ina, both p atholog ists conc luding th at this wound occurr

ed at or s hortly

after th e time of d

eath. Mor eover, t he court determined that even if

the jury did have r easonable doubt in this regard and did not find this agg ravating factor applied, the remaining two aggravating f actors we re still strong enough to outweigh the mitiga ting factors as presen ted at the po st-co nvict ion h earing.

As to this issue , the State

also arg ued that e ven if the victim were unconscious at the time the vaginal wound was inflicted, the jury could ha ve found that the nature and infliction of that wound constituted depravity of

mind and that the depraved state of mind of the petitioner existed at the time the fatal blows were inflicted upon the victim. Our

supreme court ha s held

that depravity of mind of the murderer may

be infer red fro m acts committed at or shortly after the time of death. See State
v. Williams , 690 S.W.2d 517, 529-30 (Tenn. 1985). The court explained that the nature of injuries to a victim may constitute depravity of mind under the holding in Williams :
The willful insertion of a sharp instrument into the vaginal cavity of
a dying woma

n (or a w oman who h ad just d ied) satisfies the requirements of Williams , supra
. If committed prior to d eath, the se acts constitute torture and ther eby also suppo

rt a fi nd in g o f d ep ra vi ty. If they occur

red close in time to the victim's death, they allow the drawing of an inference of the depraved state of mind of the murderer at the time the fatal blows were inflicted on the victim.

Hines , 919 S.W.2d at 581. We conclude that the record supports the findings of the post-conviction court as to this issue. d. Closing Ar gument
The petitioner contends that his counsel were ineffective in not making a closing argume nt at resent encin g. As to this claim, all three of the petitione r’s rese ntencing counsel t estified that their-37-

decision to waive c losing a rgumen t was based on the fa

ct that the y di d not want

the State to present
a rebuttal argument. The law i s clear that this c ourt may

not second-gue ss the tac tical and strategic choices made by

trial cou

nsel unle ss those choiceswere un informed because of inade quate preparation. Hellard

v. State , 629 S.W.2d 4, 9 (Tenn. 1982); see also Bell v. Cone , 535 U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002 ); State v. Menn , 668 S.W.2d 6 71, 673 (Tenn. Crim. App. 1984). The post-conviction court concluded that trial counsel had made a tactical decision to waive closing argume

nt to prev ent the Sta

te’s then being a ble to mak

e a stron g rebu

ttal argument. The record supports this conclusion. e. Assistance of Counsel on Direct Appeal

The petitione

r also contendsthat his appel late c ounse l were i neffec tive i n fail ing to chall enge the constitutionality of the jury instructions at his 1986 trial. He did not present evidenc e of this issue at the post-conviction hearing, and the post-conviction court did not address it in its order. Moreover, the pet i tioner did not cite to the record or to any legal authority

in making this skeletal argument. Accordingly , this issue is waived . Tenn. R. App. P. 27( a)(7); Tenn. Ct. Cr im. App. R. 10(b). D. Underrepresentation of Women in the Cheatham County Jury Venire

The petitioner contends that there was an underrepres entation of women in the Cheatham County jury venire f rom which

his petit ju

ry was chos en. Bec ause

this issue was notpresented on direct appeal, it has been waived. Tenn. Code Ann. § 40-30-206(g ). Post -conv icti on pro ceedin gs mayn ot be used as a substitute for an appeal to review or c orrect errors of fact or law allegedl y committed by a court of

competent jurisdiction. State v. McClintock , 732 S .W. 2d 268, 271 -72 (Tenn. 1987). Howeve

r, the pe titioner p resentsthis arg

ument in the additional fashion that counsel
were ineffe ctive in f

ailing to challen ge the c omposition o f th e juryat trial. Accord ingly , we will review this matter as a claim of ineffective a ssistance of counsel.

The court noted that at the petitioner’s 1986 trial, three of the jurors were women, but there
was only one female

juror at the 1989 resentencing hearing . Relying on Statev. Strouth , 620 S.W.2d 467, 470 (Te nn. 1981), the post-conviction court found that there was no underre presentation of
women on the 198 6 jury . As to the 1989 resentencing, the court determined tha t women were sys tematica

lly excluded, but the petitioner had fail ed to show that he was prejudiced by the fact that resentencing counsel did not seek to quash the venire

. Defend ants are ent

itled to a p etit jury

selecte d from a r

eprese ntative c ross-se cti on of t he
co mm un it y. Taylor v. L

ouisiana , 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). The Taylor Courtheld: “the jury wheels, pools of names, panels, or venires from which juries are drawn must notsystematically

exclude distinctive g rou ps in the c ommunity and ther eby fail to be reasona bly representativethereof.” Id. , 419 U.S. at 538, 95 S . C t. at 7 02. In Duren v. Missouri , 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed . 2d 579 (1 979), the Supreme C ourt se t forth a t h ree-pronged test for de te rm in in g w he th er a j ur y wa s p ro pe rl y se le ct ed fr om a f ai r c ro ss -s ec ti on of th e c om mu ni ty:-38- (1) the group a

lleged to be exclu ded is a “ distinctiv e” gro up in th e c om mu ni ty; (2) the representation of this group in venires from which juries
a re selected is not fair and reasonable in relation to t h e number of such persons in the community ; and
(3) this under-representation is due to systematic exclusion of the group in the jury-selec tion proc ess.
Id. , 439 U.S. at 364, 99 S. Ct. at 668. Based upon the report of Dr. James O’Reilly which provided that the percentage of women in Chea tham County between 1979 and 1990 w a s 50. 6 to 50.7% of the population, but the percentage of women in the Cheatham County jury venire f or that sa me time period was between

10 and 22%, the State conceded that the first two prongs of the Duren

test had been satisfied. However, the State argues tha t the petitioner did not prov e th e third prong of the Dure n test, that the underrepresentation resulted from sy stematic exclusion of women in the jur y selectio n proces s. As to this issue, the post-conviction court found that the petitioner had made a prima facie showing of exclusion:

By the numer

ical dispa rity , Peti tioner has esta

blished a prima fa cie
case of systematic exclusion. The proof by the State that jurors were selected from a pres u mably ge

nder balanced voter list does not
overcom e the fact of the dramatic under-representa tion of w om en. In fact, th er e i s n o p ro of

wh ic h e xp la in s t he di sp ar it y. There can be no explanation other tha n that the process, for whatever rea son, s yst ematica lly excluded women from Petitioner’s 1989 re-sentenci n g trial.

The Court finds that women were sy stematically ex c luded from the jury panel wh ich sente nced Peti tioner to d

eath in the 1989 procee ding.

The State disagrees with this conclusion, rely ing on State v. Nelson , 603 S.W.2d 158 (Tenn. Crim. App. 1980 ), which explained

that “the courts ha ve been relucta nt to find th

e existe nce of a prima facie case based on statistics alone, instead requiring proof of a substantial disparity coupled withsystematic exclusion.” Id. at 163 n.3. The Nelson court de termined that t he s yst ematic exclusion prong of the test had been established by proof tha t the statistical disparity occurr ed not just occasio nall y bu t in every venir e for a period of four y

ears, explaining that “[s]uch evidence ‘manife stly

indicates that the cause of the underrepre sentation was systematic that is, inherent in the particular jury-selection system utilized.’” Id. at 165 (quot ing Duren , 439 U.S. at 366, 99 S. Ct. at-39-

669). Thus, the cou rt in Nelson fou nd that the jury selectio n proces s had not be en carr ied out in conform ity with the statutory require ments and explained the proper method of selecting the venire:
[U]tilization of

wholly subjective criter

ia in a selection process such
as Tennes see's will invite

a challe nge to th e arra y wheneve

r it appears to produce jury

venires that

are not repr

esentat ive of the community at large . This prob lem could be avo ided by utilization of a random selection or " key nu mber" sy stem, which is in use in many are as of Tennessee, as well

as most other states and the federal sy stem. Use of
a "key number" applied to co unty registration lists which are reflective of a cross-section of the community may occasio nally produce a venire which ap pears to underre present some iden

tifiable group in the community. However, w hen an objective selection criterion of this na

ture is used, suc h an underrepresentation can be shown to be the re sult of mischance rather than the deliberate , systematic exclusion of any group.
Id. at 167 (citations and footnote omitted).

We respe ctfully

disagr ee with th e post-c onviction

court’s finding that the underre present atio n of women co mpels the conc lusion tha t women we

re sy stematic ally

excluded f

rom the ve

nire. While the petitioner argues on appeal tha t “the sta te offe r[ed] no pla

usible expla

nation” f or the dis parity and, theref

ore, he i s entitled , as matte r of law, to preva

il, we disa

gree with this cla

im. In fa ct, substantial proof is in

the rec ord as to

how the panel of prospective jurors was selected; and neither the petitioner nor the post-conviction court has identifie d illega

lities or d eficien cies in the process
. Rather, both simply

relied upon percentages of w omen called to jury duty to conclude that

women had been systematica

lly excluded. I

n True sdale v. M o ore , 142 F.3d 749, 755 (4th Cir. 1998), the court explained

that a sta

tistical d i sparity does not, by

itself, establish systematic exclusion of a group f rom the jur

y po ol:

Truesda le has n ot adv anced a

ny d irect ev idence o f "sy stematic exclusio n " of African Americans from the venire . Instead he seeks to rely on the bar

e asser tion of sub stanti al under repres entation to pro ve that there was a structural or sy stemic impediment to voter registrationby A

frican America ns. We have

consiste ntly requi red
more to make out a vi olation of the "fair cross-section" g uarantee. .

. . To allow

Truesda le to substi

tute evid ence of substantial underrepresentation

for evid ence of sys tematic

exclusion would go a long way towar

ds requiring perfect

sta tistical correspondence betweenracial percentage s in the venire and th os e i n t he co mm un it y. Such a rule would exal t r acial proportionality ove r neutral jury selection procedure.3 As to this issue, we note that our supreme court, i n State v. Bondurant , 4 S. W.3d 662, 67 5 (Tenn. 1999) ,

explaining the holdings i n Ro se v. M itchell , 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed . 2d 739 (19 79), and Hobby v. United States , 468 U .S. 339, 104 S. Ct. 3093 , 82 L. Ed. 2d 26 0 (1984 ), said t hat the method of selecting the grand jury fore person is releva nt only as to revie wing the com pos ition of the grand jury as a whole, the “r ole of the grand jury forepers on in Tenness ee [being ] mini sterial and adminis trative. ”
-40- A cc or di ng ly, we conclude that the post-conviction court erred in finding tha t women ha d been systematica

lly excluded from the venire. Regarding this iss ue as a post-conviction claim, the petitioner must prove that his counsel
were ineffective under Stricklandbecause counsel did not challenge the jury venire at t rial and/or resent encin g. Attorney

Stack tes tif

ied t hat he had no reason to suspect that women were underrepresented

in the jury venire in 1986, a nd, in fact, three women were on the petitioner’s 1986 ju ry. Moreover, counsel testified that they did notuse all of

their peremptory c

hallenges at the 1986 trial. Our supreme court has found that the presence of three women on the petit jury constitute s a “fair representation of women on the jury and that is all that is required by the Constitution of the United States.” Strouth , 620 S.W.2d at 470. The record supports the post-conviction court’s finding that the petitioner was not prejudiced because counsel did not cha llenge the 1986 venire.

With respec t to the 198 9 resent encing , Attorne

ys Weems a

nd Stack te stified that they
c ons ideredchallenging the jury venire but knew to do so would cost a vast amount of time. The Stateargue s that cou

nse l were not deficient “to forgo the prepara tion of a time-consuming jury chall enge in favor

of developing further

mitigating proo f, which

could spa re [their ] client the

death pe na lt y. All defe

nse attor ney s must use

their discretion to decide how best to use the time given to themto prepare the defense.” The State argues that such

decision s are str

ategic in nature and should notbe second-guessed by this court. As to this issue, the post-conviction cour t found that the petitioner had failed to establish that he was prejudiced by counsel’s decision not to challenge the venire. Testimony of the petitioner’s 1989 c oun sel was that this w as a stra tegic d ecision ma

de in
an effort to best utilize the time which they had f or trial preparat

ion. Based upo n the testimony regarding this issue, the recor d supports t he determination of the post-conviction court that the petitioner failed to show that he was prejudiced because counsel did not seek to qu as h t he 19 89 ju ry.
The petitioner further contends that the p ost-c onviction court erred in ignoring his claims that the grand jury

for epersons we re selected separately by the judge

and the two forepersons, serving from 1979 to 1990, both were male. We note that the only proof as to this claim consistedof short portions of the testimony of Delores Moulton and Lloy d Harris. The petitioner’s counsel were not questioned as to the matter, and we have been u nable to lo cate i n the p etit ioner ’s nin ety-six -page proposedfindings of

fact and conclusions of law, filed after completion of the hearing s, a reference that a claim had been presented and the post-conviction court was to rule on the foreperson selection process
. Thus, we cannot conclude that this claim was presented to the p ost-conv ic tion court separa tely and not simply as additional information in support of the petitioner’s jury cla

im which we have reviewed. Accor dingly, the c laim is waived. 3-41- E. Apprendi v. New Jersey and Ring v. Ar izona Argume nts

Th e petitione

r argu es that hisdeath se ntence i s invalid u

nder the principle s set fort

h in Apprendi v . New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and R ing v

. A rizona , 536 U.S. 58 4, 122 S. Ct. 2 428, 153 L . Ed. 2d 556

(2002), making tw o basic a rgumen ts: (1) the Tennessee Supreme Court substituted its judgment for that of the jury when it determined that it was har mless err or for the trial c ourt to have inst r ucted the jury with a f

ormer version of the Tennessee Code with respect to the (i)(5) agg ravating circumstance; and (2) Appr endi and Ring require the agg

ravatin g circumstance s to be set forth in th

e indictme

nt, which was n o t done in hi s case. The State responds that neither Apprendi nor Ring may be retroa ctively applied to the petitioner’s
case on collateral review, and

neither decision extends to Tennessee’s capital sentencing procedure or requi res that ag grava

ting cir cumstanc es be set

forth in th

e indictme

nt.
This co ur t h as de cl in ed to ap pl y Apprendi and Ring retroactively to sup p ort a request for post-conviction relief. See, e .g. , Stephen Mi chael We st v. State , No. E2001-02 520-CCA- R28-PC (Tenn. Crim. App. Sept. 6, 2002), perm. to appeal denied (Tenn. Jan . 31, 2003) ; Gregory Thompson
v. State , No. M2001-02256-CCA-28M-PD (Tenn. Crim. App. Oct. 3, 2001), perm. to appeal denied (Tenn. May 28, 2002). In so holding, this court has relied o n feder al case s, conclu ding tha

t Apprendi didnot create a new constitutional right that is retroactively applicable. See Burch v. Corcoran , 273 F.3d577 (4th

Cir. 2001), cert. denied , 535 U.S. 1104, 122 S. Ct. 2311, 152 L. Ed. 2d 1065 (2002); Mc Coy v. United States , 266 F.3d 1245 (11th Cir. 2001), cert. denied , 536 U.S. 906, 122 S. Ct

. 2362, 153 L. E d. 2d 183 (2002); In re Clemmons , 259 F.3d 489 (6th Cir . 2001); United States v. Moss , 252 F.3d 993, 997 (8th Cir. 2001), cert. denied , 534 U.S. 1097, 122 S. Ct. 848, 151 L. Ed. 2d 725 (2002). Thus, we conclude Apprendi and Ring should not be given retroactive application on collateral review. Regardless, we discern no violation of Apprendi and Ring . As for the petitioner’s argument that the ruling of the United States Supreme Court in Ring means that

the holding of our supreme court in Dellinger

is no longer viable, our supreme court has c oncluded otherwise. State
v. Holton , __ S.W.3d __, 2004 WL 24972, at *13 (Tenn. 2004) (“ Ring provides no r elief to the defendant and does not invalidate this Court’s holding in Dellinger .”).

At the co nclus ion o f the r esent encin g hearin g, the jury was c harged with the incorrect

version of the heinous, atroc ious, or c ruel ag grava

ting cir cumstanc e. At the tim e of the offense, the aggravating

circumstance set out

i n Tennessee Code Annotated section 39-2-203(i)(5) ( 1982) provided that “[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or depravi ty of mind.” In 1989, the statute wa s amended to provide as follows: “[t]he murder was especia lly heinous, a

trocious , or crue

l in that it involved torture or serious physical abuse be yond that necessary to produce death.” Tenn. Code Ann. § 39-13-204(i)(5) (Supp. 1990). On direct appeal of the rese ntencing hearing , the supr

eme cour t held that there was sufficient evidence in the record to establish t he torture a nd depravity of mind fa ctors under Tennessee Code Annotated section 39-2-203(i)(5) or section 39-13-204(i)(5) i ndepend ent of the depravi ty o r seriou s phy sical abuse prongs of the aggr

avating circumstances. As a result, the c ourt found that the trial court’s error in chargingthe jury

withthe improper version of the aggr avating circumstance was har mless. Hines , 919 S.W.2d at 587-88.-42-

The petitioner

alleges that by

finding the error

was harmless, the supreme court substituted its judgment for that of the jury in violation of Ring which requires that the ju ry, not the trial judge, find the aggravating

circumstances necessary to impose the death penalty. Ring , 536 U.S. at 609, 122 S. Ct. at 244 3. Howev er, the U nited State s Supreme

Court expla

ine d that a harmless error analy sis is a legal question for the court. O’Neal v. McAninch , 513 U.S. 4 32, 437, 11 5 S. Ct. 992, 995, 130 L. Ed. 2d . 947 (1995). In fact, Ring was remanded to the Arizona Supreme Court for a determination of harmless error. Ring , 53 6 U.S. at 60 9 n.7, 122 S. Ct. at 2443. Accordingly , the making of such an analy sis does not violate the principles set forth in Ring

. Fi na ll y, the petitioner argues that because theaggr

avating circumst ances th at result

ed in his being eligible for the death penalty were not set

forth in the indictment

and returned by

the grand jury
as re qu ir ed by Apprendi , his sentence must be set aside. However, Apprendi specifically note d the Fifth Amendment right to indictment by a grand jury

has not been applied to the states under the due process cla use of the Fourteenth Amendment. Apprendi , 530 U.S. at 77 n.3, 120 S. Ct. at 2355. Accordingly , our state supreme court’s holdings that there is no constitutional violation due to the failure to allege the agg

ravating circumstances in the indictment are consistent with Apprendi

. See Statev. Holton , __ S.W.3d __ , 2004 WL 24972, at *13 (Ten n. 2004); State v. Cart er , 114 S.W.3d 89 5, 910 n .4 (Tenn. 2003); State v. Dellinger , 79 S.W.3d 458, 467 (Tenn.), cert. denied , 537 U.S. 1090, 123 S. Ct. 695, 154 L. Ed . 2d 635 (2 002). Thi s issue is w ithout mer it. F. Constitutional Arguments

The petitioner argues that

his sentence violates various provisions of the Constitutions of the United States and the State of Tenness e e and inte rnationa l law. As th

e State c orrect

ly r esponds, these arguments have either been p revio usly determined on direct appeal or were waived by the petitioner’s failure to make the argument on direct appeal. To the extentthe petitioner argues that if an issue was not raised

by prior counsel, c ounsel provided ineffective assistance of counsel, the petitioner has failed to raise any

constitutional claim with respect to the death penalty that has not already been rejected by

the appellate courts of this state. See, e .g. , State v. Stevens , 78 S.W.3d 817, 850-52 (Tenn. 2002), cert. denied , 537 U.S. 1115, 123 S. Ct. 873, 154 L. Ed . 2d 790 (2 003); State
v. Keen , 31 S.W.3d 196, 233 (Tenn. 2000), cert. denied , 532 U.S. 907, 121 S. Ct. 1233, 149 L. Ed. 2d 142 (2001 ); State v. Nesbit , 978 S.W.2d 872, 902 (Tenn. 1998), cert. denied , 526 U.S. 1052, 119 S. Ct. 1359, 143 L. Ed. 2d 520 (1999); State v. Vann , 976 S.W.2d 93, 117 (Tenn. 1998), cert. denied , 526 U.S. 1071, 119 S. Ct. 1467, 143 L. Ed. 2d 551 (1999); State v. Caughron , 855 S.W.2d 526, 542 (Tenn. 1993). Accordingly , an ineffective assistance of counsel cla im on this issue must fail. The petitione r’s claims on this iss ue are without mer it.-43- III. CONCLUSION

Based upon the for egoing aut horities a nd reaso ning, we

affirm t he order of the pos tconviction court denying

the petition for post-conviction relief.

___________________________________ ALAN E. GL

ENN, JUDGE