# FILED January 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1997

BILLY RAY IR ICK, ) C.C.A. NO. 03C01-9608- CR-00304 ) Appe llant, ) ) KNOX COUNTY ) V. ) ) HON. RA

Y L. J ENKINS , JUDG E STATE OF TENNESSEE, ) ) (POST-CONVICT ION Appellee. ) (DEATH PENA LTY)

FOR THE APPELLANT : FOR THE APPELLEE : DOUGLAS A. TRANT JOHN KNOX WALKUP 900 South Gay Street Attorney General& Reporter Ste. 1502, Ri verview Tower Knoxvill e, TN 37902 AMY L. TARKINGT ON Assistant Attorney General T. HAROLD PI NKLEY 2nd Floor, Cordel l Hull Bui lding CHIMBLI SS & BAHNER 425 Fifth Avenue North 1000 Tallan Buil ding Nashvill e, TN 37243-0943 Two U nion Squa re Chattanooga, TN 37402 RANDALL EUGENE NICHOLS Distri ct Attor ney General ROBERT L. J OLLEY, J R. Assistant Distri ct Attor ney General 400 Main Street P.O. Box 1468 Knoxvill e, TN 37901
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Petiti oner, Bil ly Ray Irick, appeal s as ofright pu rsuan t to Ru le 3 of the Tenn essee R ules of Appe llate Procedure from the deni al of hi s petiti on forpost-convi ction rel ief by t he Knox County Crimin al Court. He argues that he received the ineff

ective ass istance of

coun sel, tha t the sta te’s violation of its d uty under Brady v. Mary land warr ants a new trial, a nd that his senten ce of dea th must be put asidebecause the four aggrava ting circumstan ces found b y the jury were inval id.

After

a thorough rev iew of the r ecord, inc lud ing th e trialtranscri pt and the evident iary hear ing on the post-convi ction petit ion, weare of the opi nion thatthe Petitioner receive d the effective assistance of counsel; t hat the Peti tioner failed to prove a Brady violat ion; and that the on ly invalid aggravating factor, the felony-m urder ag gravating circums tance, was harmless bey ond a reaso nable doubt. The trialcourt’s denial of the P etitione r’s petition is the refore affirm ed.

PROCEDURAL HI STORY

The Petition er was convic ted in 1987 of felony murder and t wo counts of aggra vated rap e. He wa s senten ced to de ath by electr ocution for the felony murder convict ion and to forty (40)year s as a Rang e II esp ecially aggravated offender on each ch arg e of aggravated rape, to be served
conc urren tly with each ot her and consecuti vely to the death sentence. Specifically, in imposing t he death penalty, the jury found the pres ence of the followi ng four aggra vating circums tances: (1) Th e victim was less than twelve-3-

(12) years of age and the defendant was eighteen (1 8) years of age or older; (2) the murderwas especially heinous, at rocious, or cruel in that it involved torture
or depravit

y of mind; (3) the murder was commit ted for t he purpose of avoi ding, interfering with, or

preventi ng a lawful arrest or prosecuti on of the defendant; and (4) the mur der was committed whil e the defendant was engaged in committ ing the felony of rape. T .C.A. § 3 9-2-203 (i)(1), (5), (6) an d (7).

The T ennessee Supreme Court aff irmed the P etitione r’s convicti on s and sentences on dir ect app eal. State v. Iri ck , 762 S.W .2d 121 (Te nn. 1988), cert
. de nied , 489 U .S. 102, 109 S. Ct. 1357, 103 L. Ed. 2d 825 (1989). The Sup remeCourt’s opinion p rovides the following s ynopsis of the evi denc e prese nted a t trial:

I n summary , th e State’s p roof was t hat Bi ll y Ra y Iric k was a friend of t he chi ld’ s moth er an d ste p-f athe r. He had lived wi th them for a t ime, often cari ng for the five (5) young chil dren in the f amily whil e the J e ffers were working. At the time of the incide nt the Jeffers were separated. Mr. Jeffers and the defen d ant were living wi t h Jeffers’ mother. On the night of the occurrence Mrs. Jeffers left

defendant wit h the children when she went to w ork. Sh e was som ewha t unea sy abo ut this because defendant had been drinking , although he did not see m t o be in toxicated. He was in a bad mood because he ha d bee n in an argum ent with Mr. Jeffers’ mother earlier in the day. He did not want to keep the children since he planne d to leave Knox ville for V irginia thatnight. Mrs. Jeffers called her husband at the truck stop where h e worke d to tell him o f h er fear s. He reassured her an d said he would check on t he children
. About midnight Mr. Je ffers received a telephone call from Iric k telli ng him to come home, suggesti ng there was something wrong with the little girl, saying, “I can’t wake her up.” When Jeffers arrived at the house defendantwas waiting at the door. The c hild was lying on the livi ng room floor with blood between her l egs. After ascertai ning she stil l had a pulse, Jeffers wr apped her in a blanket and took her to Child ren’s H ospita l.-4- Ef forts to resusci tate her t here fail ed and she wa s pronounc ed dead a short time later. Physical examin ations of herbody at the hos pital emergency room and du rin g the autops y were indicative of asphyxi ation or su ffocati on. The cause of death was cardiopul monary arrest from ina d equate oxygen to the heart . T here was an abrasi on to her nose near one eye and l esions on her rig ht chin consistent

with teet h or fingernail marks. Bloo d wa s oozing from her vag ina , wh ich had suf fer ed an ext reme tearextending into the p elvic region. There were less severe lacerati ons around the op ening of her re ctum in whi ch semen and pubic hair were found. These injuri es were consiste nt with penetrati on of the vagi na and an us by a p enis. Irick , 762 S.W.2d at 133-34.

The Petitioner filed his petition fo r post-co nviction relief on May 5, 1989. After counse l was appointe d to represen t the Petitioner, the petit ion was amended on num erous occasions. The hearing on the p etiti on was held in t he trialcourt on November 30, 1995, December 1, 1995, and December 14, 1995. The trial court dismissed the petition on April 1, 1 996, issu ing a state ment o f its finding of fa cts and c onclusio ns of law.

The trialcourt found: (1) that the Petit ioner was aff

orded the ef

fecti ve assistance of counsel; (2) that no Bradyviolat ions were proven and nothing was introduced to s how t he al leg ed v iol ati ons were ma terial t o his punishment; (3) thatthe sentence was not a violat ion ofthe Double Jeopardy clause; (4) that t he cla imsconcerning t he fligh t instruction and appea rance b efore a M agistrate were waived because there was no obj ection at trialor on direct

appeal; (5)that the “heinous, atrocious

or cruel” aggravati ng circumstance i s constit utional; (6) that Ten ness ee’s death penalt y is not c ruel and unusualpu nishm ent; (7) that the court’s failur

e to all ow polygraph evidence was not a vio lation of due process; and-5-

(8) that the Midd lebrooks error w as ha rmles s. The Petition er time ly filed his notice of a ppeal.

POST-CONVI CTION EVI DENTIA RY HEARI NG

At the post-conviction evidentiary hearing , Jimmy R ay M or ris, a polygraph examiner, was al lowed to testify for the Pet itioner

as an offer of p roof. He statedthat he

wa s asked by Detecti ve Wiser to perform a polygraph examination on Kenneth Jeffer s, the vi ctim’s stepfather, on April 16, 1985. The examination was cond ucted and M r. Jeffers was asked two questi ons concerning whetherhe had do ne anything physica lly to the victim to cause he r death. Mr. Jeffers respon ded tha t he had not, and Mr. Morri s stated t hat his conclus ion had been that Mr. Jeffers was no t telling the truth
. A copy of Mr. Mor ris’s report was introduced i nto evidence.

On cr oss-exa mination , Mr. Morris stated tha t he did no t r ecall at wha t ti me of the day t he exam had been given but that it had been given the day after the victi m was murdered. He admitted thathe did not kno w whether M r. Jeffers might have given a poor response because of the guil t he was experi encing for leaving his stepda ughter with the P etitioner.

Don ald Wis er, a detect ive with th e Kno xville Po lice De partm ent in April 1985, test ified t hat he had reques ted that a polygraph test be conducted on Mr. Jeffers be cau s e W iser ha d inform ation th at whe n Mr. J effers h ad lived in Clinton, Tennessee, he had been under investigation for abusi ng his n at ural chi ldren. Wh en question ed conce rning whethe r there had be en any proble m-6-

when Detective Wiser took the Peti tioner’ s statement, the stateobjected on the ground that the i ssue of the admiss ibility of t he statement had been r aised and refuted on direct appeal. However, as an offer of proof, Wiser testifi ed thatwhen he had taken the statement, he, hi mself, had been very tired and t he Petiti oner had been ve ry emo tional. He a dmitted that he ha d been under p ressure to comp lete the invest igation in this case and that

he wished he had gone b ack to the area wh ere the P eti tioner al leged he ha d spent the nig ht after the murd er. Detective Wis er iden tified ph otogra phs o f the victim ’s “very unkem pt, nasty” resid ence, taken on the night of t he incident, and the photographs wer e introduced into evi dence. Wiser then testified concer ning a conversation he had with Robe rt Holt, the F .B.I. serolog ist, in which Mr. Holt ha d state d that h e cou ld not offer a defini te opini on concerning bl ood evidence.

The Petiti oner, Bil ly Ray Irick, testifi ed that he ha d not r aped and kill ed the victim. He stated that he had been incarcer ated a week pri or to being taken befo re a ma gistrate. H e testified tha t what he had sa id in his state men t
was not the truth because he had felt there w ere only two w ays he w as going to
come out of the room in which he wa s being que stioned, “either I tell them what I [sic] wanted or I was g oing to be coming out feet fi rst.”

He stated that

he had been told by h is initial attor neys that if he had a preliminary he aring, the court could find hi m guilty and send him to the el ectric c hair, and because of that advice, he waived his ri ght to a prel iminary hear ing.

The Petiti oner testi fied that new couns el had been appointed and th at these atto rneys ha d sugg ested tha t he utilize an insanity de fense, b ut tha t when he refused to “go along wit h them,” they would not talk with him. He stated-7-

thathe had met with counse l only t hree or four times prior to trialand that he had mentioned that

he wanted a DNAanalys is but th at his attorne ys had treated him like he di d not kno w what h e was ta lking abo ut. He also testified that hi s attorneys had suggested that he not testify at trial even though it was h is desire to do so. Mr. I rick cl ai med t hat his attorne ys had never ques tioned him concerning any head inj uries he had p revious ly experi enced and that he had never be en ask ed abo ut blood o r hair testing
.

On cross-examinat ion, the Pet itioner was questioned asto how his pubi c ha ir

had been fou nd i n th e vi cti m’s rec tum, and he repli ed that he di d not know that thehair was his. He admitted that no one had specifi cally t hreatened h im duri ng questioni ng, but because of the acti ons of the pol ice, he had been fri ghte ned. He admitted t hat he had never told his attorne ys that he had lied to the police but stated that wh e n his a ttorney s had show n him his stat eme nt in which he had admitted ki lling the vict im, he had told t hem that he had not committed the c rime . He testif ied that h e was not sure why hehad run awayon the night of the m urder.

I n desc rib ing his recollect ion of theevents occurring on the day of the murder, the Pet itioner stated th at when he had arrived atthe vict im’s house, he had go ne “out back” to drink beer and had smoked marijuana wit h a friend. He testif ied that Ms. Jeffers went to work, Mr. Jeffers l eft short ly ther eafter, and he remained at t he house alone wit h the Jeffers’ chi ldren
. He put the chil dren to bed and laid on the couch to watch te levisi on. Sometime during t he evening, the victim c ame to the livin g room and to ld him that she was sick. The Pet itioner-8-

told her to “go ba ck a nd l ay d own i n dad dy’ s be dro om” because that would be the first place w here M s. Jeffers w ould find h er.

Later, the Petit ioner observed thatthe dog had come in. He stated thathe had wonde red how the dog had got ten in and t hat he had gone to t he back door, notici ng that something wa s not right because the back door was “wide open.” He shut t he back door and when he pass ed be side th e room in which the vi ctim was lying down, he stated t hat he observed t he victi m was not breathing because she always sn ored. He the n called Mr. Jeffers an d attempted to cond uct CP R on the victim.

When questioned as to how blood had gotten inside t he crotch of his pants, the Pe titio ner sta ted that it may have gotten there when he pi cked the victim up from the bed. He testified that h e left when Mr. Jeffers arri ved because he was scared. When questioned as to why he had told hi s attorney s thathe did not remember what had happened on the ni ght of the murder , he state d thathe could not remember everythi ng but did rem emb er telling his atto rneys that he did not commit the crime. When questioned as to why he told police in his statement that“when I los t it, it was when I raped her, ” he answered only that he di d not rape the victim. He admitted that in his statement he had tol d Officer Wiser that he had not bee n threate ned or c oerced into mak ing the sta temen t.

Pam ela Mary Auble, a clini cal neuropsyc hologist , testified that she
was asked to evalua te the Pe titioner to determ ine the po ssibility that he suf fered from some type ofbrain damage and to determi ne his personal ity st ructure . She stated thateither sheor others workin g under he r supervision had spent twenty--9-

one (21) ho ur s with thePetiti oner and had examined records from Home for Childre n, the Mental He alth Center, Kn oxville Orthopedic C linic, Lakeshore Psych iatric Hospi tal , th e Army, and t he Pet iti oner’ s GED. She also obtai ned and examined record s from We st Kno xvil le NeurologicalAssociates, Dr. Diana McCoy, Fort Sanders Region al Medical Center , and the Helen Ross McNabb Center. She stated th at she had rel ied upon these r ecords and her evaluat ion of the Petitioner in makin g her co nclusion s. The s tate objec ted to the relevance of her testimony s ince her eval uation was conducted after the Peti tioner had been convicted of the cri me. The objecti on was sustained, but as an offer of proof, she stated th at f rom t he ea rlier reco rds sh e had review ed, the poss ibility of bra in damage had been raised i n an evaluati on conducted by t he Mental Health Center when the Petitioner was six yea rs old. The possi bilit y was raised agai n when the Petiti oner was hospital ized at Lakeshore Psyc hiatri c Hospital when the Petiti oner was eight yea rs old. Th e Petitione r’s diagno sis at t hat time w as ch ronic b rain syndrom e of unkn own or u nspec ified origin with behavio ral reaction
.

Dr. Auble testified concer ning the Petition er’s m other’s difficult pregnancy with thePetiti oner and the fact that the Pet itioner

had been a “blue baby.” As a ch ild, reports showed t hat the Peti tioner was pas sive and unresponsive, a pattern i ndicati ve of brai n damage. Ms. Auble te stifi ed that fr om the test results obtai ned from the Peti tioner, he had partic ular difficul ty with tasks which required hi m t o modulate his behav ior and to r egulate hi s actions. She stated thathe ac ts imp ulsively and without regard for the consequences and has major difficul ties with rel ationships.-10- In response to questioni ng c once rning th e Petitio ner’s m ental health , Dr. Auble testified that he had suffered emotional damage as a chi ld. When he
was three years old, he began exh ibiting behavioral hype ractivity and told others thathis mo ther tied him up and abused him. At t he age of s ix , hebega n a l if eti me of outpatien t psycho logical trea tment. H e was h ospita lized for a year at Lakesho re Hospital when he was eight year s old, and from there, he was se nt to
a ch ildren’ s home in Sevierv ille, Tennessee. During t he next fi ve yea rs, hi s parents were not inv olved in hi s treatment, and when he was sent hom e fo r summer vacation i n 1972, he report edly chopped the television set with an a x, clubbed flowers i n the flower bed , cut up his sister’s paja mas, a nd set fires to wasteb askets. In July he was returned to the chil dren’s home, where he broke
a window and cli mbed into a young girl’s bedro om. He wa s chase d away, b ut a knife wa s later found in t he bed. He was then readmitted to Lakesh or e Psychia tric Hosp ital where h e was g iven Th orazine , a major tranquilize r.

Dr. Auble’s te st result s also indi cated that the Petit ioner has no empathy with other people, that he does not know how to form rel ationshi ps, and thathe does not

know how to show anger in a modulated way. His i ntellec tual functionin g was in th e low ave rage ran ge.

Dr. Auble concluded that based upon the Petiti oner’s hist o ry and current evaluation, he su ffers from a serious mixed personality disor der and that brain dam age c ould n ot be ru led ou t. She a lso sta ted tha t the Pe titioner’s statem ent to the poli ce would be consistent wit h his mental conditi on in that he would be respon sive to people st ructuri ng the sit uation for him in asking yes-no questionsand would answer accor dingly. She testif ied that the Petit ioner’s f light-11-

after the death of

the victi m was consistent with his behavi oral pattern of leav ing the situati on in times of stress.

Dr. Auble testified that in revi ew ing the Petit ioner’s j ail recor ds, of significancewere two inst ances wher eby the Peti ti oner attempte d sui cid e. On
one occasi on he cut his wr ists wi th a steel shank and on the othe r he was observed beating hi s he ad on t he floor. T he jail reco rds were introduce d into evidenc e.

Dr. Auble als o rev iewed the Peti tioner’ s medical recor ds from the Prison Health Servic es an d con clude d that o ther tha n the s uic ide attem pts, he had adjusted well to p ri son li fe. A psy chi atrist and a ps ych olo gist ha d se en hi m, and they had not seen the nee d to force h im to hav e treatm ent. These records
were made e xhibits. Finally, Dr. Auble rev iewed material s provided to her by Dr. McCoy. The m aterials cons isted o f two pre trial d rawings an d writi ngs of the Petiti oner on why he hates people and his war on life. These were also introduced i nto evidence.

On cross- exa mi nation, Dr . Auble admitted that the Petiti oner had
once obtained an I Q test score of 107. She admitted t hat the fi le she had reviewed contained a l etter stating that the records had been made available to the Petiti oner’s ori ginal trial counsel on November 18, 1985. Counsel was also allowed acce ss to re cords conc ernin g the Petitioner’s pas t social history, espe cially those in whi ch the Petit ioner had behaved inapp ropria tely. Dr. A uble admitted that the Petiti oner had denied that he h ad ever been hospi talize d or had eversuffered f rom depression or any mental condition when he had enlisted-12-

in the United States Army. Dr. Aubl e also acknowledged that inc luded in the file she had reviewed was an emergency room summary by a Dr. Turn er who ha d examined the Petition er on Ap ril 16, 1985 , th e day followi ng the murder of t he vi cti m, and ha d found some dark spo ts on the Petit ioner’s s crotum. The doctor had concluded that

he could not determine whether the spots were b lood o r stool. Dr. Au ble also admitted that the file contained a neur opsychologi cal evaluati on conducted by Emily Oglesby prior to trialin which Dr. Oglesbyconcluded that she could not rely

on the test

results because the Peti tioner had coop erated p oorly and had d emons trated loud and insistent behavior.

The state referredDr. Auble to numerous instances i n records fr om the Helen Ross McNabb Center in whi ch the Petiti oner had mocked the dece ased ’s family, had described hi mself as dangerous, and had admitted t hat he had been enraged at t he stepfather of the vi ctim for

making him babysit

on the evening of the murde r. The state also n oted reports from Dr. Tennys on and D r. Dye which found t he Petiti oner antisoc ial, s chizoid, nar cissisti c, and his trioni c and concluded thathis forget fulness was not

supported by i ndicati ons of any linke d psychopathology or neurologicalillness.

Dr. Auble admittedthat the Petition er’s score on the “ fake scale”

of the Minnesota Mult iphasic Pers onality Inventor

y had been high enough to be significant. It was her opinio n a high score on t his scale i ndicated t he possibility thatthe Peti t ioner h ad be en exa ggera ting or th at he w as se riously e motio nally disturbed. She c onclu ded th at bas ed up on oth er test re sults a nd the Petition er’s history, serio us em otional distu rbance was the cause of this high fa ctor.-13- Dr. Auble al so admitted t hat the recor ds reflec

ted that bas ed upon tests completed in Janua ry 1967, a prior di agnosis of chr onic brai n syndrome had been changed to situational react i on of c hildho od at L akes hore P sychia tric Hosp ital. Dr. Aubl e st ated, howeve r, that when she was com pleting her report
on the Petit ioner she had reviewed allof the Petiti oner’s recor ds and had reached the conc lusion that he poss ibly suffe red fro m org anic brain dys function. The Petitione r then de clared tha t he had conclud ed his pro of.

The state called as i ts first witness Randy

Reagan, init ial counselfor the Petiti oner. Mr. Reagan testifi ed thathe had been appointed t o represent t he Petiti oner at his pre limina ry hea ring in 1985 but that the preli minary heari ng had been waived because of a concern over pr etrialpublici ty. He al so testi fied that becaus e the preli minary heari ng was waived, def ense counsel was al lowed t o review photographs that were taken and was supplied wit h the witness statements. He recalled talking to the Petitioner c onc erning the prelim inary hearing and testi fied that his pract ice at t hat time would have been to discuss the pros and cons of th e hearing wit h the Petit ioner to make sur e the Petit ioner unders tood why a defen dant would h ave a prelimina ry hearing and why a defendantwould waive a pr eliminary

hearing. When question ed as to whether he threa tened th e Petitione r by telling him that he w ould go to the ele ctric chair if he had a preli minary heari ng, Mr. Reagan stated that he definitely would not have thre atened the Petition er in that m anner.

On cross-examinat ion, Mr. Reagan was shown nu mero us exhib its includi ng a list of que stions purpo rtedly sent to the pro secu tor from the victim ’s mother w hich impl iedly impli cated t he vict im’s stepfathe r. He was a lso shown-14-

several DHS reports concerning abuse of the stepfather

’s naturalchildren by the stepfather. Mr. Reagan stated that he di d not see thes e docu ments prior to the preliminary hearin g, and that the y would have be en imp ortant to rebut th e state ’s proofof probable cause that the Peti tioner was the perso n who co mmitted the crime.

On redirect , Mr. Reagan was shown t he statement of the Petiti oner in which he admitted raping a nd cho king the vic ti m. However , Mr. Reagan testif ied that the Petition er had told him that he had been coerced into making the statem ent. It was Mr. Reagan’s opini on thatif he had had the DHS informat ion, he would have been “on stronger gr ound” in making a moti on to suppress t he Petitione r’s statem ent.

Ken Miller , tri al counsel f or the Peti tioner, testif ied that h e and cocounsel Jim Va rner had been a ppointe d to repre sent t he Pe tit ioner in Cr iminal Court in 1985. He testi fied that he had spoken with t he Petiti oner on man y occasions and that he would have d iscuss ed with him whethe r he sho uld testify at the suppressi on hearing and at trial. He recollected that the Petiti oner was not anxious to testify and that the more counsel talked t o him, the more counsel realizedthat the Pet itioner would notmake a g ood wi tnes s. Herecalledthat the Petition er’s mem ory of events s urrounding t he victi m’s death changed from ti me to time. He did not rec all any spe cific reque st of t he Petiti oner as to what he wanted done with t he case and did not remember the Petit ioner aski ng for a DNA test. He stated that he had discussed a mentalrelated def ense with t he Petiti oner and t hat the Pe titioner h ad be en eva luated at Ridg ecres t Psych iatric Hospital and examined byDiana McCoy. A neuropsychologicalevaluati on had-15-

been obtained, and the resul ting proof had been presented at trialthrough Nina Bras well Lunn, a social wo rker. Counsel testified that a strategi c decision not to call Dr. McCoy or the p sychiatrist had been made becau se they h ad referre d to the Petit ioner as a soci opath.

On c ross-examinat ion, Mr. Miller testif ied that h e had been a war e thatthe vict im’s stepfather had fai led a polygr aph tes t but state d that he had
neverseen the list

of questi ons purportedly from the v ictim’ s mother or any of the DHS records. He stated that t he allegat ions of t he vi cti m’ s mother w ould have bee n important for i mpeachment purposes and in the sentencing phase of th e trial. He tes tified tha t the D HS re cords would have b een e xtrem ely imp ortant in both the guilt and s entenc ing pha ses.

DHS records presented to Mr. Mil lerduring the h earing inc luded (1)
an order fr

om the Juvenile Court for Knox County fi nding that the children of Mr. Jeffers had been subjected t o “s evere chil d abuse” caused by “ continual excessi v e discipline, ” (2) complaints recei ved by DHS concerning physical abuse of Mr. Jeffers’ children, (3) a foster care plan whi ch required t hat Mr. Jef fers and his wife attend couns eling dea ling with paren ting sk ills and pay support whi le the children were placed i n foster ca re, and (4) a redetermination of eligibility fo r Title XX services whi ch stated t hat Mr. Jef fers had not obtained parent ing counseling. The records als o inc luded a let ter to Juvenile Court

Judge Wagner from social workers who had conducted a surprise visit to the J effers home and rep orted that the Petition er lived in the ho me a nd pro vided c hild car e and that he had been observed taking good car e of the chi ldren . Ano ther DHS report stated that the DHS supervisor

had gone to the home and tal ked with t he children, asking t hem-16-

about the Petit ioner. The gi rls in the famil y told t he supervisor that they

liked “Unc le Bill” and that he had never hurt t hem or tried to do anything el se such as “touch[ing ] them in th eir panties .”

Mr. Miller

testif ied that

if he h ad been given th ese documents, he would have contacte d the socialworkers who interviewed t he chi ldren and conducted the hom e visit as poss ible witnesses to show that t he Petiti oner loved and cared for t he children. He also stated that the inform ation would ha ve been extremely i mportant to cast doubt as to who committed the crime.

On redi rect , Mr. Mi ller stated th at he had investigated whet her
a nother perso n com mitted the offe nse, b ut the e ffort had been unsu cces sful in thatthe only i nformation they had obtained ha d been the polygraph test w hich Mr. Jeffers failed a nd wh ich wa s inad miss ible. Mr . Mille r admitted that he di d not investigate whether or not Mr. Jeffers was where he sai d he was on the night of the murde r.

James H. Varn er, Jr., co-counse l for the Petitioner, testif ied that h e had assisted Mr. Miller in represent ing the Peti tioner. He stated that he had had several conversati ons with t he Petiti oner and recalledthat the de cision had been made that the Pet itioner not testify because he coul d not rem emb er what happened on the evening of the murder . He stated that if the Petit ioner had insisted on testi fying, he would have been al lowed to do so.

On cross-exam inatio n, Mr . Var ner wa s show n thesame DHS docum ents and letter that had b een show n to Mr. Miller. He too s ta ted that he-17-

had not been given t hese documents and fel t that t hey would ha ve bee n important

to impeach Ms. Jef

fers and to attack

the credib ilit

y and character

of the only other su spect in th e case , Mr. Jeffers

. He state d that the overall trial strategy would have changed because att acking the parents of a chil d who had been murdered without something substant ial to place in f ront of a jury w ould be something an attorn ey shou ld not do. H oweve r, with the substanti al all egations of child abuse over a period of ti me, counsel could have cast Mr. and Ms. Jeffers in a differ

ent ligh t. He stated thathe would no t have backed of f some of the questionsthat he ha d wante d to ask Mr. and Ms. Jef fers. Mr. Varner also st ated thatthe records woul d have been benefici al to bol ster thePetiti oner’s cl aim that he had no reason to commit this off ense and t hat he had always cared f or the children a ppropria tely.

Mr. Varner test ified thathe had made an effort to determine whether Mr. Jeffers’alibi had checked out. He stated that the re h ad be en a per iod of t ime when Mr. Jeffers had su ppose dly been at work tha t could no t be verifi ed. He admitted that at th e o riginaltrialan FBI expert testif ied that h air found on the victim was co nsistent w ith that of t he Petiti oner, but he could not r

ecall whet her a hair analysis was done on Mr. Jeffers.

On redirect, Mr. Varne r stated tha t he had hired Cle veland B lake, a certif ied forensic

pathologi st, to tes t ify conc erning the stre ngth o f the sta te’s analysi s of t he sero logical evid ence. H oweve r, on the da y Dr. Blak e was to testify, he purp ortedly star ted “waffling ” as to his prior concl usions, and couns el decided not t o present hi m as a witness. Mr . Varner stated that t here was nothing in t he FBI report conc erning the ha ir analys is to indicate t hat Mr. Jeffers’-18-

hair was tested for

the purpose of

comparison to t he hair that was found insi de thevi cti m.

The final witness for the state, David Jennings, the assistant distri ct attorney who assisted in the prose cution o f the Pe titioner, te stified th at in his contac ts with Mr. and Ms. Jeffer s, pret rial and du r ing the trial, Ms. Jeffers ha d appeared to be grief stricken an d Mr. Jeffers had acted li ke a grieving stepfathe r. He stated th at he had no recol lectio n of seeing t he letter purportedl y written by Ms. Jeffers, but that herecalledthat Ms. Jef fers wou ld go int o “ramb lings” with him during t heir interviews and someti mes ask que stions sim ilar to those in t he letter. W ith this testim ony, the s tate conc luded its p roof.

In r eviewing the trial court’s de terminations, we are guided b y c ertai n rules. Since this pe tition wa s fil ed p rior to the ef fective date of

the Post Convicti on Act of 1995, the burden was on t he Petiti oner at the hearing to prove h is case by a pre pond eranc e of the eviden ce. On appe al, the tria l court’s findings are co nclus ive unle ss the evide nce pre ponde rates ag ainst its determinations. Turne r v. State , 698 S.W.2d 90, 91 (Tenn. 1985). The burden
now rests upon the Petit ioner to i llustr ate how the recor

d preponderatesagainst the judgm ent. Black v. S tate , 794 S.W .2d 752, 755 (Tenn. Crim . App. 1990 ).

I. EFF ECTIVE ASSI STANCE OF COUNSEL

The Petiti oner contendsthat his attorneys were ineff

ective f or fail ing to object to th e trial court’s fa ilure to instruct the jury that it is the sol e judge of not only the facts b ut also the law, fo r fail ing t o follow thro ugh in atte mpting to-19-

introduce evidenc e that Kenneth Jeffer s fail ed a polygraph test concerni ng the incident , for failingto raise the issue of double jeopar

dy concerning convicti ons forfelony murder

and aggravated r

ape, for failingto object to a jury

instruct ion thatevidenc e of flight m ay justify an inference of guil t, and for faili ng to raisean issue concerning the factthat he was not taken before a magistrate until a week after his arrest . We hold that the Petiti oner received the effec tive assi stance of
coun sel.

In determi ning w hethe r coun sel pro vided e ffective a ssis tance at trial , this court must deci de whether counsel ’s perform ance fell within t he range of competence dema nded o f attorneys in crimina l cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To succ eed on a c laim that his counsel was ineffective at trial, a Petiti oner bears the bur den of showing that his counsel made
errors so serious t hat he was not functio ning as counsel as guaranteed under the Sixth Amendment and that the defic ient repr esentation prejudiced the Petitioner, resulti ng in a fail ure to produce a reliable res ult. Strickl and v. Washington , 466 U.S. 668, 68 7, reh’g denied , 467 U.S. 1267(1984); Coop er v. State , 849 S.W.2d 744, 74 7 (Ten n. 1993 ); Butler v. State , 789 S. W.2d 898, 899 (Tenn. 1990) . To satisfy the secon d prong, the Peti tioner must show areason able pro bability that, but forcounsel’s unr

easonable error , the fact find er wou ld have had re ason able doubt regardin g Petitione r’s guilt. Strickl and , 466 U.S. at 695. This re ason able probab ilitymust be “suff icient to un dermine the confid ence in th e outco me.” Harris v. S tate , 875 S.W .2d 662, 665 (Tenn. 199 4).

When review ing trial c ouns el’s actions, this cour t should not

use the bene fit of hindsight

to second-guess trial st rategy and criti cize counsel’s tact ics.-20-

Hellard v. State , 629 S.W.2d 4, 9 (T enn. 1 992). C ouns el’s alleg ed erro rs sho uld be jud ged at t he t ime they we re ma de in lig ht of all the facts and circumstances. Strickl and , 466 U.S . at 690; see Cooper , 849 S.W.2d at 746.

The Peti ti oner

fi rst cl aims thatcouns el was ine ffective for failing to object to the tri al court’s failure to i nstructthe jury that it was the sole j udge of not only the facts

but also t he law. The state asserts t ha t no Tenne ssee a ppellate
c ourt has e ver he ld that a defen dant h as a rig ht to ha ve a jury instruc ted tha t it may ignore the mandates of the law set out by t he trial court ’s instruct ions.

In Judge v. State , 539 S.W.2d 340, 342-43 (Tenn. Crim . App. 1976 ), the defendant al leged that the court er red in instructi ng the jury that it was the judge of factand in reach ing its ve rdict, it was to consider the law i n connection to the facts

but that t he court was t he proper source f rom which it was to get t he law
. As in the case at bar, the def

endant insi sted that the inst ruction v iolated Article 1, Section 1 9 of the Tenn essee Constitu tion which states tha t, “[t]he jury shall have the right to determine th e law and facts under the direc tion of the court in libel as in oth er crimina l cases.”

T his cou rt conclu ded that i t was unnecessary to decide t he issue because the erro r in the c harge , if any, wa s harm le ss error. Id . at 343 . This court cited t he following standard as set outin Ford v. S tate , 101 Tenn. 454, 47 S.W. 7 03 ( 1898 ), in rej ect ing thedef enda nt’ s cl aim:

. . .[The] mere f a ilure to tell the jury that they

are the judges of t he law is not necessarily reversible error. . . . [W]he re no i njury co uld ha ve resu lted to d efend ant, it is no t revers ible err

or. Such a case i s one where,-21- w hoeve r judged of t he law, it was suffi cientl y and accu rately charged, and as full y as should have been. Judge , 539 S.W .2d at 343
.

In this c as e, the recor d reflect s that thejury was suf ficien tly and
accu rately charged as to t he applicabl e law, and we cannot conclude t hat the Petiti oner was p rejudic ed by th is om ission . Acco rdingly , even if P etitione r’s counsel should h ave objected t o the charge as given, the e rror does not rise to the leve l of ineffe ctive as sistan ce of c ouns el.

The Petiti oner next cl aims that counselwas ineffective for failing to follow through in attemp ting to introd uce evid ence th at Kenne th Jeffers, stepfather

of t he v ict im, had failed a polygraph test concerni ng his involvement in the murder of the vict im. The Petitioner asserts t hat counsel failed to follow through in its attempt to introduce the evidenceat the guilt phase and, more over, failed to attempt to int roduce t he evid ence at the p enalty p hase where it would clearly have been admissibl e. We do not agree.

It has long been estab lished i n Tennessee that th e r esu lts of a polygraph examination ar e not admissibl e as evidence i n a criminal prosecuti on. State v. Cam pbell , 904 S.W.2d 608, 614 (Tenn. Cri m. App. 1995); Grant v. S tate , 213 Tenn. 440, 443 374 S.W.2d 391 , 392 ( 1964); Marab le v. State , 203 Tenn. 440, 456, 31 3 S.W .2d 451 , 458 (19 58); State v. Adkins , 710 S.W .2d 525, 529 (Tenn. Cri m. App. 19 85); State v. Elliott , 70 3 S. W.2d 1 71, 177- 78 (Tenn . Cr im. App. 1985). T he cou rts of th is stat e have consistently hel d that the r esults of such tests are “inherently unreliable.” Adkins , 710 S.W .2d at 529
.-22- The Petition er argu es tha t the afo reme ntione d evide nce w ould “clearly” have be en adm issible at t he pe nalty phase of the proceedings. Howeve r, Tennessee Code Annotated section 3 9-2-203(c), now codifi ed at section 39- 13-204(c) ( 1996 Supp.), si mply provi des thatthe followi ng evidence may be presented at the penalty phase:

. . . evi dence may be presented as to any matter t hat the court deems rel evant to t he punishment and may include, bu t not be li mited to, t he nature and circumstancesof the crime; the de fendant’s cha racter, background history , and physical condit ion; any evidence tending to establ ish or rebut the aggravati ng circumstancesenum erated in sub sectio n (i) ; and any evidence tending to estab lish or rebut any mitigat ing factors. Any such evidence which the cour t deem s to have probative value on the issue of punishment may be received regar

dle ss o f i ts a dmi ssibil ity under the rules of evide nce; p rovide d, that th e defe ndan t is accorded a fair oppor tunity to rebut any

hearsay statements so admit

ted.

The admissibil ity of

the evidence of

which the Petitioner compl ains does not fit under any of these categories. The results of a polygraph test would have no probative value on the issue of punishment. Accordi ngly, again, we must conclud e that the P etitioner’s cla im is witho ut merit.

The Petiti oner contends t hat trialcounsel was ineffective f or fail ing to raise t he issue that his convi ctions for both fel ony murder and the underlying aggravated ra pes are a violation o f the doub le jeopard y clause o f the Fifth Amendment of the United States Consti tution and thereby violate th e Petitio ner’s due process rights. The Petit ioner cites t he United States Suprem e Court decision in Whalen v. United States , 445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980 ) in support of thi s proposition. He also ci tes Briggs v. S tate , 573-23-

S.W.2d 157 (Ten n. 1 978) , i n whi ch o ur s upreme cou rt held t hat convict ions for felony murder and the underlying fel ony of arme d robbe ry could n ot stand. The Petiti oner fault

s counsel for

faili ng to raisethis i ssue.

The state con cedes t hat Briggs does supp ort the P etitione r’s argum ent, but cor rectly asse rts that Briggs is no longer controll ing law. 573 S.W.2d 157. In State v. Blackbu rn , 694 S.W.2d 934 (Tenn. 1985), our sup reme court revisi ted Briggs and reve rsed the underlyin g appe llate court’s dismissal of the def endan t’s conviction for assau lt with intent to c omm it rape. Th e interme diate appellate court concl uded thatthe assau lt conviction m erged w ith the felony

murder convict ion. However, the Supreme Court concluded t hat the l egislat ur e intended that mu ltiple punish ments be imp osed o n convictio ns of a defend ant for felon y murd er and th e unde rlying felony. Id . at 937.

Since Blackburn , Tennessee courts have consistently r

ejected a doub le j eopardy claim o n convicti ons for fel ony murders and the underlying felony offense. See State v. Denton , 938 S.W.2d 373, 379 (Tenn . 1996); State v. Zirkle , 91 0 S.W.2d 874, 890 (Tenn. Cri m. App. 1995). I n that the d ouble j eopard y clause was not implicated in t he Petitioner’s convict ions , counsel cannot be faulted for fa ilure to raise such cla im.

The Petiti oner next argues that his attorneys were ineff

ective f or faili ng to ob

ject to t he tr ial cour

t’s inst ruct ion o n fl ight . He argues that because there was no evidenc e of flight, cou nsel com mitted a c ritical error in failing to object when t he instruc tion was gi ven. We disagree.-24- The instruction given to the jury on fl ight reads as foll ows: The flight o f a person accused of a crime is a circumstance which, when conside red toge ther with all of the fact s of the case, may justif y an infer

ence of guilt. Flight i s the volunt ary wit hdrawal of

one’s self

for the purpo s e of evading ar rest or pr osecution for the cri mes charged. Whether the ev idence presented proves beyond a reasonable doubt that thedefendant fled is a question for your consi deration. The law makes no nice or refined di stinct ion as to the ma nner or m ethod o f a flight . It may be open , or it may be a hu rrie d or concealed depar ture, or it may b e a c once alme nt within the juris diction . How ever, it takes both a leav ing the scene of t he diffi culty and a subsequent hiding out , evasion, orconcealmentin the comm unity , or a leaving of th e com munity fo r parts unkno wn to co nstitute flight. If flight is proved, the fact of flight alone does not allowyo u to find tha t the defen dant is gu ilty of th e cri me alleged. H o wever, si nce fli ght by a defendant may be cau sed by a conscious ness of guil t, you may consider

the fact of fli ght, if

flight is so proven, together with all of the other e videnc e whe n you d ecide the gu ilt or innocence of t he defend ant. On the other hand, an entirely innocent per

son may take fl ightand such fli ght may be explained by

proof offered or by

the facts

and circumstancesproved in the case
. Whether there was flight by the defendant , or thereasons for it , and the weightto be g iven it are questions for you to determine.
In Hall v. State , 584 S.W.2d 819, 821 (Ten n. C ri m. App. 1 979), th is Court q uoted 2 9 Am . Jur. Evidence § 280 a t 329 on the issue of flight:

The fact that

a defendant after the commission of a crime concealed hi ms elf or fled from the vicinity where the crime was committed, with k nowledge that he was like ly to be a rreste d for the crim e or cha rged with its commission, may be shown as a circumstance tending to indicate guilt.-25- In Rog ers v. State , 2 Tenn. Crim. App. 491, 455 S.W.2d 182, 18 7 (Tenn. Crim. App. 1970) , this Court set out a two-prong test for determining whethe r the facts o f a case w ere indica tive of flight:

The law makes no nice or ref ined dist inctio n as to the m anne r or me thod o f a flight; it may be open, or it may be a hurried or conceal ed d eparture, or it may be concealment

wi th in the ju risdictio n. How ever, it takes both a leaving the scene of t he difficu lty and a subsequent hiding out, evasi on, or conceal ment in the comm unity, or a lea ving of th e com mun it y for p arts unkno wn, to con stitute flight.
Contrary to the Pet it ioner’s assertions , there i s evidence i n the record to just ify t hi s i nstruc tion. At th e mo tion to s uppre ss he aring a nd at tria l, Detective Wis er testifie d that th e Petitio ner ha d told him that he had sl ept under
an interstate bridge t he night befo re he wa s taken in to custody. Also, D etective Parkertestif ied that whe n he ha d taken the Petition er into custody, t he Petiti oner h ad told the m an who had ac comp anied D etective P arker in se arching for th e Petiti oner that he (the Petitione r) h ad be en hiding under the bridge a ll day and had though t about

turn ing hi mself

in. At tria l, Ms. W allace Sm ith Bailey, a neighbor

of the Jef

fers, testifi ed thaton the night of the murder, t he Petiti oner had knocked on her door and asked to use the tel ephone. He call ed Mr. Jeffers and told him to come home because the vi ctim could not be revived. As he was leaving, Ms. Bail ey as ked t he Pet iti oner why di d he no t cal l an a mbulan ce. He told her tha t it was too late for that. After M r. Jef fer s ar ri ved at t he J effershome and took the vi ctim to t he h ospita l, Ms. Bai ley watched t he Petiti oner put on a jacketfrom the house, walk down the steps, and leave the s cene. Cum ulatively, this evidence was suf ficien t to warr

ant an inst ruction on flight . Trial counsel was not ineff ective f or fail ing to obj ect to thi s instruc tion.-26- Last, the Petiti oner clai ms that counsel was ineffec tive for notraising the issue that because t he Petiti oner was not taken before a m agistrate prom ptly, his statement to police shoul d be suppressed. Acco rding to t he Petiti oner, he
was not taken befo re a ma gistrate until about a week after his arr est. The Petiti oner relies upon the supreme court ’s holdi ng in State v. Huddleston , 924 S.W.2d 666 (T enn. 1 996) in sup por t of his cl aim. In Huddleston , 9 24 S.W.2d a t 670-71, the court held that a delay of se vent y-two hours before bri nging the Petiti oner before a magis trate violated Rule 5(a ), Tenn . R. C rim. P . and the Fourth A mend ment to the U.S . Constitu tion.

The Court must initi ally note that thedecision i n Huddleston had not been rendered a t the time of the petitione r’s tri al. Moreo ver, State v. Readus , 764 S.W.2d 770 (Tenn. Crim. App. 1988), a deci sion reli ed upon in Huddleston , was not issued un til two years after the Petition er’s trial. A ccord ingly, it wo uld
seem inappropri ate to fault counsel for fail ing to rai se a n issue rel ying upon autho rity in a su prem e cou rt decis ion filed nine ye ars afte r the P etitione r’s trial.

Nonetheless, in addressing the Petit ioner’s i mplicati on that he was illegally detained at t he time of hi s statements to the poli ce, thus re quiring t he suppression of those s tateme nts, we co nclude that the P etiti oner woul d not be entitl ed to reli ef. In Huddleston , the Tennessee Supreme Court concluded t hat
a statem ent give n in violat ion of Tenn. R. Crim. P. 5(a)need not be suppressed if the statement was voluntari ly given under the totality of the circumst anc es. Huddleston , 924 S.W.2d at 670 (cit ing Readus , 764 S.W .2d at 774 ); see also State v. Middlebrooks , 840 S.W.2d 317, 327-28 (Tenn. 1992) . The Tennessee S upr eme Co urt has alread y deter mine d on d irect ap peal th at the P etitione r’s-27-

confession wasvolunta rily given un der the to tality of circum stance s test. State v. Iri ck , 762 S.W.2d at 126-27.

Howeve r, in addressi ng the clai m of a Fourth Amendment viol ation, the Huddleston court notedthat“[i] f the probabl e cause determinat ion does not
occurwithin forty-eig ht hours , ‘ t he burd en shifts to the gove rnmen t to demo nstrate the exis tence of a bo na fid e emerge ncy or other extrao rdinary circum stanc e.’” 924 S.W.2d at 672 (citi ng Cou nty of R iverside v. McL augh lin , 500 U.S. 44, 57, 11 1 S. Ct. 16 61, 167 0 (1991 )). For the purpose of determining the admis sibility of the Peti tioner’ s statements, assuming that a McLa ughlin violat ion has occurred, the questi on becomes whether the statement was suff icient ly an act of fr ee w ill to purge the primary ta int of the un lawful invas ion. Huddleston , 924 S.W.2d at 674 (cit ing Brown v. Il linoi s , 422 U.S. 590, 598, 95 S. Ct. 2254, 2259 (1975) and Wong Sun v. United States , 371 U.S. 471, 486, 83 S. Ct. 407, 416 (1963)). In determiningwhether a su fficient act of free will exists, the court suggested that

the foll owing four f

actors be consi dered: (1) the presence or absence of Miranda warnings; (2) the tempo ral proxim ity of the arres t and t he confession; (3) the presence of interveni ng circumstances; and (4) the purpose a nd flagrancy o f the off icial misco nduct. Huddleston , 924 S.W.2d at 674-75. The bur den of provi ng the admissibi lity of the challenged ev idence by a prepon derance of evi dence rests upon t he prosecuti on. Id . at 675.-28- We conclude that

the reco rd reflects sufficie nt atten uation to perm it the introdu ction o f the Pe titioner’s statem ent. Mo st imp ortantly , the Pe titioner’s statementwas obtaine d within two hou rs of his arrest . Thus, the st atement was given to the pol ice before the Petit ioner’s d etention wou ld h ave pu rporte dly ripened into a constit utional violat ion. The only evidence prese nted at thepostconvicti on hearin g con cernin g illega l detention was the Petiti oner’s testimony that he believed he was in jail about a w eek before he was take n before a judge for his initial ap peara nce. T he Pe titioner w as rep eated ly advise d of his rights at the ti me of his arrest and t hroughout the interrogati on process. Finally , the Peti tioner does not argue, nor could he, that his initi al arrestwas n ot sup ported by prob able
c ause. Un der the se circ ums tance s, it wou ld app ear tha t the Pe titioner’s statementwould n ot have b een su bject to suppression under Huddleston , even if it had b een in effect at the time of thePetiti oner’s trial. This claim i s without merit.

II. BRADY VIOLA TION

The Petiti oner asserts that the state wit hheld elev en items of exculpatory evidence i n violat ion of theSupreme Court’s de cision i n Brady v. Maryland , 376 U .S. 83, 83 S. Ct. 119 4 (1963 ). T he following documents and photog raphs w ere sub mitted by Petitioner a t the post-c onviction h earing:

Exhibit 1 A n unsigned and undated documen t

p ur ported ly written by Kathy Je ffers (Kenn eth Jeffers’ wif e) to the district attorne y’s office c onsisti ng of a li st of questionswhich would im plicate Mr. Jef fer s i n th e murder

of t he v ict im. Exhibit 3 A Dep artment of Human Servicesreport

with the date of

complaints l isted as-29- F ebr uary 2, March 7, and March 29, impli cat ing Mr. Jeffers, Pamela Jeffers, and Vickie Jeffers in the phys ical abuse of Mr. Jeffers’ two min or childr en. Exhibit 4 A Knox C ounty Juvenile Cou rt order

declaringMr. Jeffers’ thr ee minor chil dren dependent and neglect ed and awarding custodyof the chil dren to the Depar tment of Human Services due to “ continual excessive discipline” by Mr. Jeffers, Pamela Jeffers, and Vickie Jeffers. Exhibit 5 Foste r Care P lans for Mr. Jeffers’ tw o

male children from 198 0 to 1982 suggesting thatthe biological mo ther, the stepmoth er, a n d Mr. Jeffers attend counseling dealing with par enting skill s. Exhibit 6 Redeter mination of Eligib ility for Title X X

Servicesmade in 1981 and 1982, a let ter to JudgeCa re y Garett dated March 23, 1984, fro m the Department of Human Servicesconc er ning Mr. Jef fers’ at tempt to regain custody of his minor da ughter, and report s of ho me s tudies mad e in 19 83, suggesting t hat all three minor children be placed in t he cus tody of Mr. Jeffers. Exhibit 7 Redeterminati on of Eligibility for Tit le XX

Ser v ices made in 1982 recommending thatMr. Jeffers’ two min or sons rema in in foste r care because Mr. J effers had not obtained parent

al counseli ng. Exhibit 8 Letter

to Judge Brenda Wagner date d March 23, 1994, from the Depar tment of Human Services deta iling Mr. Jeffers’ and Kathy Jeffers’home sit uation and explaini ng thatthe Petit ioner also live d in the home and “appeared stabl e “and had “been observed taki ng good care of t he children dur ing a su rpr isehome v isit” while Mr. and Ms. Jeffer s were working. Exhibit 9 Department of Human Services repor t

dated December 23, 1984, substantiati ng abuse of Mr. Jeffers’minor daughter while in the custody of Mr. Jeffers and Kathy Jeffers.-30- Exhibit 10 Depar tment of Human Service s reports concerning Mr. Jeffers’ two m inorsons dating fr om 1979 until 1982. Exhibit 11 A De partment of Human Servi ces re por t dated April26, 1985, in which the worker visited the Jeffers ho me after thevictim’s death and Mr . Jeffers at fi rs t was h ostile and then requestedcounseling for him self and his son. Exhibit 17 Photographs of t he vi ctim’s home on the night of the mu rder. According to both trial coun sel, none of thi s informati on was provided to them prior to tr ial.

The state c onten ds tha t in refere nce to Exhib it 1, the c la im tha t a Bradyvio lati on occurred must fail because t he Petiti oner did not demonstrate that the state suppressed t his i nformat ion. At the hearing, Assi stant Dist rict At torney Gen eral D avid Jennings test ified t hat he did not recall everhaving seen Exhib it 1. The state claims that because this document was unsign ed and undated, there is no evi dence to demonstrate at what point this i nformation came i nto the possession of the state. The state fur thercontends that

the Petit ioner has failed to prove th at the doc umen t was m aterial.

As to Exhibits 3 through 11, again the state clai ms that the Petitioner has failed to demonstrate t hat the s tate suppressed the information because there is nothing to indicate at what p oint the D epartm ent o f Human Services records came into the possession of the state. Also, as in Exhibi t 1, the state conte nds th at this e videnc e was not m aterial.-31- Last, the state contends the Petiti oner has fai led to prov e that the ph otographs intr

oduced as Exh ibit

17 were supp ressed because ther e wa s
u nrefuted testimony that the procedure would have been that the p hotogra ph s would have been kept by t he Criminali stics Div ision of the Poli ce Department and thattheywould have been available to defensecounsel at al l times. Again, the state a rgues that the photo graph s were not m aterial.

In the landm ark case of Brady v. Mary land , 373 U. S. 83 , 83 S.Ct.1194, 10 L. Ed. 2d 215 (1 963), th e Unite d State s Sup reme Cour t held that the prosecution has a constitut ional duty to f urnish the accuse d with exculpatory eviden ce pe rtaining to eithe r the ac cuse d’s gu ilt or innocence and the p otential punishment that may be imposed. Failure t o revea l excul patory evi dence violates due proce ss wh ere the eviden ce is m aterial e ither to g uilt or pu nis hment , irrespect ive of good f

aith or bad f

aith of the pros ecution. Brady , 373 U.S. at 87, 83 S. C t. at 1196-9 7. The prosecution must also discl ose evidence whi ch may be used b y the defe nse to im peach a witness
. Giglio v . United States , 405 U. S. 150, 15 4-5, 92 S . Ct. 763,7 66 (197 2); Workm an v. State , 868 S.W.2d 705, 709 (Tenn. Crim. A pp. 199 3); State v. Davis , 823 S.W.2d 217, 218 (Tenn. Crim. App. 1991).

Before a reviewi ng court may fi nd a due pr oc ess viol ation under Brady , all of the fol lowing four prerequisi tes must be sati sfied: (1) The defendant must have requested t h e informati on (unles s the e videnc e is ob vio u sly exculpatory, in which c ase the state is bound to r elease the information whether r equested o r not); (2) The state must have suppressed the i nformation-32- (3) The information m ust have been favorabl e to the accused; and (4) The inform ation m ust ha ve bee n ma terial. State v. Edg in , 902 S.W .2d 387, 390 (Tenn.) am en ded o n reh’g , (Tenn. 199 5). Our examination of

the record l eads us to the conc lusion (1 ) that t he informati on wa s request ed; (2) that t he Petit ioner f ailed to prove that t he info rmation wa s suppressed by the state; (3) that the information may have been fav orable to t he defend ant; but (4) th at the informati on was not materi al under the standards of Kyles v. Whitley , 514 U.S . 419, 115 S. Ct. 155 5, 131 L . Ed. 2d 4 90 (199 5). In Ky les , 11 5 S. Ct. at 1566, the United States Supreme Court pr onounced the standard by which the mate riali ty of undi sclosed inf ormation is

measured, holdi ng that, “[t]he question is not wh ether the defen dant would m ore likely than not have received a different ve rdict with the evidenc e, but w hether in its absence he
r eceived a fair t rial, understood as a t rial r esulti ng in a verdi ct worthy o f
co nfidence .” See also Edgin , 902 S.W.2d at 390. Thus, in order to prove a Brady violation, a de fendan t m u st sho w that “th e favor able e videnc e cou ld
reaso nably be taken to pu t the whole cas e in such a differe nt lig ht as to underm ine the confiden ce of the verdict.” Id

.

In t he ca se at b ar, trial co unse l testified at the e videntia ry hea rin g thathe had had a problem wit h discovery in thi s case and that hehad s pecific ally requested informati on about Mr. and Ms. Jeffers’background. The dir ect appeal record reflect

s that, t hrough counsel, t he Petiti oner fil ed an extensive disc overy motion. Among the i tems sought were:

The criminal record, i ncluding any juvenil e record, or any prior convict ion of a ny person who may be cal led as a wi tne ss. Whil e not li mi ted to, spe cific req uest is made forthe crim inal rec ords, a dult and juvenile, if any,-33- of Kathy

An n Dyer Jeffers an d Kenneth Michael Jeffers. The state appeal ed the tri al court’ s granting of the motion, assertin g that thetrial court abused its di scretion because Rule 16(a)( 1) (B), Ten n. R. C rim. P ., only provides t hat upon the defendant’s requestthe statemust furnis h a copy of th e defen dant’s prior criminal record and does notrequire t he production of criminal records of witness es. Ci ting Graves v. State , 48 9 S. W.2d 7 4, 8 3 (Te nn. Cri m. App. 1972), th is Court h eld that in t he interest of just ice, a t rial cour t may grant such a reque st. State v. Billy Ray Irick , C.C.A. No.1060, Knox County. (Tenn. Crim. App ., Knoxville, Apr. 18, 1986 ).

At the evident iary hear ing, the Pet itioner presented no evidence as to when the state receiv ed either t he letter

purportedl y written by Ms. Jeffers or the DHS records
. The lette r was un dated a nd uns igned. We cannot, therefor e, undeniably conclude that the statewithheld this evi dence.

We also cannot

conclude that

the evidence wa s material. In regard to the letter purportedly wri tten by Ms. Jeffers, trialcouns el f or the Peti tioner testif ied that he was not sure if Ms. Jeffers tes tified to anyth ing incon sistent with the question s referred to in the letter. Furthermo re, the fact that Mr. Jeffers was initially the prim e susp ect was brough t out at trial.

As for the DHSrecords, none of the documents dealwith Ken neth Jeffers’abuse of the v ictim. The Petiti oner has fail ed to demonstrat e how prior allegati ons of chil d abuse would have af fected ei ther the gui lt or t he pe nal ty phase of the tria l. Again, the def ense presented evi dence at the gui lt phase t hat-34-

Kenn eth Jeffers was

initi ally cons idered the prim e suspect in t his case, but the state’s evidenc e refuted this theory. It was the Petiti oner who called Mr. Jeffers at work to tel l him that the vict im had stopped breat hing. It was the Petit ioner

who stated that he could not remem ber what ha ppened on the night of the m urder. It was the Pe titioner’s pubic hair t hat ma tc hed h air fou nd i nsi de t he v ict im. Moreover, on e of the reports co ncluded tha t one of Mr. Jeffers’natural ch ildren shou ld b e re turned t

o hi m.
Although the petit ioner contend s that i nformation i n the records concerning surprise v isits in which he was f

ound to be taki ng goo d care ofthe children would have been favorable and material, t he record re veals th at this i nfor mation was also brought out during the testimony of Mr. and Ms. Jeffer s. Both testif ied that t he Petiti oner had li ved with t he famil y for t wo years and had not given them any cau se for concern in regard to his relati onship wit h the children.

In summ ary, we conclude that the Petit ioner has failed to show: (1) thatthe state supp resse d the a bove m ention ed evid ence and (2 ) that sa id evidence, under the Kyles “material ity standard,” was material. The absence of the unsigned, undated, and unti tled let ter and the DHS recor ds of Mr. an d Ms. Jeffers did notdeprive t he petiti oner ofa fair trial a nd did not un derm ine faith in the verdict

reached by the j ury. I n light of the eviden ce pre sente d at trial, even had this inform ation b een d isclose d, there is not a reasonabl e probability that the result would h ave bee n different. See Edgin , 902 S.W .2d at 3 90. Th is issue is without m erit.-35- II.AGGRAVATI NG CIRCUMSTANCES

The Petiti oner next assert s thatall four aggravat ing circ umstances found by the jur

y are invalid, and therefor e, the death penalty must beset aside. The state relied upo n and the jur y found appli cable the followi ng four aggravating circumstan ces to warran t the death pen alty:

(1) The c ri me was committed against a per son less than twelve (12) years of age and the defendant was eig hteen (1 8) years o f age or o lder; (2) The murder was especially heinous, atrocious or cruel in that it in volv ed tortur e or depravi ty of mind; (3) Th e m urder was committe d for the purpose of avoiding, interfering with, or preventi ng a lawful arrest or prosecuti on of the defendant or another; and (4) The murd er was com mitted while the defendant was engaged in committi ng the fel ony of rape, or was an accomplice i n the commission of, or was attempting to commit, or was f leeing af ter committing or

attempting to commit rape. Tenn. C ode Ann . §§ 39-2-203 (i)(1), (5), (6), and (7)(1985).

The Petiti oner fir

st argues t hat two of t he aggravati ng circumstances found to exist

by the jur

y are invalid unde r State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992). He asserts that the aggravat ing circ umstance that t he murder
was comm itted during the perp etr ation of a rape and the cir cumstance concerning the ag e of the victim a nd the defen dant a re inva lid bec ause they did not narrow the cl asses of persons el igiblefor the deat h penalty when t he defendantwas convicted of felo ny murder and the fel ony was aggravated rape.-36- In Middlebrooks , the supreme co ur t held that the fel ony murder aggravator

cannot be used to s upport a death sentence i n felony murder cases because this aggravati ng circumstance does not narrow the death eligi ble class of defendants

who are convicted of felo ny murder. I n ruling, the court s aid: We have d etermined that in li ght of the b road definition of felony murder and the dupl ic ating la nguage of the felony murder aggravated circumstance, no narrowing occu rs und er Te nnes see’s first-degree murde r statute. We h old tha t, when the de fenda nt is convicted of fir

st-de gre e murder solel y on the basi s of fel ony murder, the aggravat ing circ umstance set out i n T.C.A.§ 39-2- 203(i)( 7) (19 82) a nd 39-13-204(i )(7) (1991) , does not nar row the class of death -eli gible mu rderers s ufficiently und er the Eig hth Amendment to the U.S . Constitu ti on an d Articl e I, § 16 of the T ennes see Constitut ion because it duplicates the elements of the offense. As a result , we conclude t hat Tenn. Code Ann. § 39-2
- 203(I)(7)is unconsti tutional ly appli ed under the Eighth Amendment to the U.S . Constitu tion and A rticle I, § 16 of the Tennessee Constitut ion where the death pena lty is imposed for felony murde r. According ly, we expressly overrul e State v. S mith , 755 S.W.2d 757 (Tenn. 1988) and i ts progeny on t his issue. Middlebrooks , 840 S.W.2d at 346. The court has sub sequently hel d that the holding in Middl ebrooks should b e applied retroactive ly. Barbe r v. State , 889 S.W .2d 185, 186 -87 (Tenn . 1994).

The state con cedes th at the felon y murder aggravator was impro perly applied in this ca se, bu t argue s that th e app lication of this aggravator is harmless beyond a r easonable doubt. In State v. How ell , 868 S. W.2d 238 (Tenn. 1993), the court adopted t he harmless error standard used by

the United States Supreme Court in Stringer v. Bl ack , 503 U.S. 222 , 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1 992), fo r deter minin g whe ther the impro per ap pli cation of the felony murd er agg ravato r could be co nside red ha rmles s beyo nd a re ason able doubt. In How ell , our supreme court held the following: In order to guar

antee the preci sion that indivi dualized sentencing considerat ions demand and-37- providea princ ipled e xplana tion for o ur con clu sio n in each case , it is i mportant, when conducting harmless error review, to com pletely examine the recor d for the presence of f actors whic h potential ly inf luence the sentence ult imately i mposed. 868 S.W.2d at 260-61. These factors in clude, wi thout li mitation, the foll owing:

(1) The num ber an d stren gth of re main ing valid aggravating circumstances; (2) The prosecutor’ s argument at sentencing; (3) The eviden ce ad mitted to esta blish th e in v alid aggravator; and (4) The nature, qual ity, and strength of the mitigati ng evidence. Id

. at 261. In t he case at bar, we conclude that in revi ewing the appli cabili ty and reweighing of the thr

ee remaini ng aggravating factors, any error was harmless under How ell
.

The Petiti oner contends that the aggr avating ci rcumstan ce regar din g the ages of the defenda nt and the victim m ust also fail under Middlebrooks . The Petiti oner maintains t hat the rape was cons idered aggra vated beca use th e victim
was less tha n thirtee n (13) y ears o f age a nd tha t one o f the ap plicab le aggravati ng factors found by the j ury was that the vi ctim was less than twel ve (12) years of age and the defendant ol der than (18) years of age. He argues that this situati on is analogous t o Middlebrooks in that the convict ion of the defe ndant of the underly ing felo ny would au t omaticall y make him death-qual ified, and therefore the aggr avating ci rcumstance would not narrow the cl ass of persons eligible for the death pe nalty.-38- The applicat ion of theag e enhan cem ent fac tor is dis tinguis hable from the problem in Middlebrooks . In order to convic

t the Peti tioner of

felony murder , the st ate simply had to prove t hat he committed murder in the perpetrat ion of a rape. Tenn. Code Ann. § 39-2-202 ( a) (1982). The victi m’s age
w as relevant

in convic

ting the Pet itioner

of aggravated rape, but it was not relevant in determining whether the pet itioner was guilt

y of fel ony murder. The victi m’s age is not an element of t he offense of felony murder, an d according ly,
a Middlebrooks problem does n ot exist.

Moreover, allowin g t he victi m’s age to be used as an aggr avating circumstance does narrowthe class of death eligi ble defendants. Offender s who kill young victi ms during a rape are a distinct s ubset of al l murderers, and even
a subset ofall felony murderers. Therefore, thi s aggravating circumstance sufficie ntly narrows the cl ass of death el igibledefendants, and this aggravator was properly

applied.

The Petiti oner next argues thatthe “ heino us, atro cious , or crue l” aggravati ng circumstance i s unconstit utionally vague. However , the Tennessee Supr eme Court has consi stently upheld the const ituti onality of this aggravati ng circumstance. See State v. Cazes , 875 S.W .2d 253 , 2 67 (Tenn . 1994), cert
. denied , 115 S. C t. 743 (19 95); State v. Black , 815 S.W .2d 166, 181 (Tenn. 199 1). In the case at bar , the jur y was instructed as to the terms of the statute a nd was given de finitions for the terms. T his issue is without m erit.

The Petiti oner also argue s th at the evide nce wa s insufficien t to support the jury’s appli cat ion of this a ggrav ating c ircum stanc e. How ever, th is-39-

issue was raised on direct appeal, and t he Supreme Court concluded t hat the evidence was m ore than adequ ate to est ablish all the e leme nts of th is aggravati ng circums tance. State v. Ir ick , 762 S .W.2d at 134. This i ssue has therefore been p reviously d etermin ed. See Hous e v. State , 911 S.W.2d 705, 711 (Tenn. 19 95).

Last, in regard to thi s aggravating circu mst ance, the Peti tioner contends that theapplicat ion of thi s circumstance doe s not suff icient ly narrow the class of death el igibledefendants. Agai n, howeve r, theTenn ess ee Su pre me Court reviewed t he applicat ion of thi s aggravator in li ght of the d efinit ion in State
v. Willia ms , 690 S.W.2d 517, 532 (Tenn. 1985), and concluded that it was
cons titutiona lly acceptable and pr operly appl ied in t he case at bar. State v. Iri ck , 762 S.W.2d at 132-34.

The Petiti oner nex t co ntends that the evid ence is in sufficient to support applicat ion of thea ggrav ating ci rcumstance that the murder was
comm itt e d for the purpose of avoidi ng, inter fering wi th, or pr

eventing a l awful arrest or prosecuti on of the defendant or another. In State v. S mith , 868 S.W.2d 561, 580-8 1 (Te nn. 19 93), the Ten ness ee Su prem e Cou rt held that for purposes of applying this circum stance, the state n eed only prove that at least one m otive for kil ling was t he preventi on of prosecut ion.

In this case , the jury con victed the P eti ti oner of two count s of aggravated rape. Th e eviden ce sup ports this conv iction . Also, the evidence was uncontested that the victim knew the Petitioner and that the Petitioner f le d the
scene after Kenneth Jeffers took his daughter to thehospital. Under these facts,-40-

a reasona ble juror could ha ve found that the Petition er killed the v ictim, in part, because he did not wa nt her to identify h im as the perpet rator of the aggravated rape. See State v. S mith , 857 S.W .2d 1, 14 (T enn. 19 93), cert
. denied , 114 S. Ct. 561 (1993). Moreover, t his inference is furt her strengt hened by the fact that after fleeingthe scene, t he Petiti oner admitted t hat he had hid under a bri dge for most of the d ay following the m urder.

As previous ly stated, this C ourt conclud es that th e Middlebrooks
error was harmless beyond a doubt . In conduct ing the How ell analysis , the Court must first

consider t hat the ju ry correc tly appl ied the th ree remaining aggravati ng circumstances. The proof clearly supports their app licati on.

Second ly, we must consider t he extent to which the pr osecu to r emphasized the inval id felony -murder aggravator in his closing ar

gument at sentencing. The r ecord revea ls that th e pros ecuto r only br iefly discu ssed this aggrava tor at sente ncing.

Thirdly, all of

the evidence concerning t he murder being committed during the course of

aggravated r

ape was ad mi tted duri ng the guil t phase, and the jury coul d have considered the fact that the murder

was committed duri ng the rapes as part of the cir cumstance s of the cr ime and the character of the Petitioner.
Last, i n examining thenature, qual ity, and strength of the miti gating evidence, the record r eveals that

mitigati on evidence was admit ted through Ni na Bras well Lunn, a li censed clini cal socialworker, who testifie d concerning t he-41-

Petition er’s early psychiatri c problems and inst ituti onalizat ions. The assi stant district attorney

who handled the Pet itioner’s ini tial ar raignment was also called to testif y that t he Petiti oner offer ed to plead gui lty before being asked to plea d guilty or not gu ilty. The c ourt gave t he following inst ructions to the jur y on mitigati on: (1) that

the Petiti oner had never before been convicted of a felon y; (2) thatthe P etiti on er had never been ar rested or conv icted of a misdemeanor involv ing moral turpi tude; (3) that the Pet itioner had a histor

y of men tal impairm ent; (4) that the Pet itioner was under the i nfluence of alcohol or

marijuana at the time of

the offens e; (5) t hat the Peti tioner had at tempted to obta in help for the victim after t he crime; and ( 6) that the Petitioner had shown rem orse. There
was evidence in the record dealing with allof the ab ove fac tors, bu t the jury could h ave justi fiably

concluded that

it was not

substanti al enough to out weigh the aggravati ng factors. On rebuttal at sentenci ng, the state pres ented the testimony of Dr. Clif

ton Tennison , Jr., the psychi atrist who examined the Peti tioner concerning hi s mental condit ion at theti me of the crim e and h is comp etency to stand trial. Dr. Tennison tes tified that it was his opinion that the re was no medical or psych iatric eviden ce to sup port incom petenc e to stand tri al or reason to support an insanit

y defense. He f urther testifi ed that the Pet itioner suffers f rom an anti-soc ial perso nality disorder. Based upon a thorough review of the record,
a ft er careful an alysis i n conformity with How ell , we conclude , beyond a
reasona ble doubt , that the sentence would have been the sa me had the jury given no weig ht to the inva lid felony-m urder ag gravating facto r. This i ssue is without m erit.

CONCLUSI ON-42- After a t horough revi ew of this record and the briefs f iled on behalf of th e parties, w e conc lude that th e eviden ce doe s not pre ponde rate against t he findi ngs of the t rial cour t. The judgment of

the tri al court i s thereby affirmed. The sentence of deat h will be carried out as provided by

law on the 5th day of M ay, 1998 , un les s ot her wis e ordered by

theTenn ess ee Su pre me Court or othe r proper autho rity.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ JOHN K. BYERS, Senior Judge