### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Re m an de d by S upr em e Co ur t Ju ne 28, 200 4

AN THON Y D AR REL L HIN ES v. STA TE OF TEN NES SEE

Appeal f romthe Circ uit Court for CheathamCounty No. 9852 Robert

E. Bu rch, Judge

No. M2004- 01610-CCA -RM -P D - F iled Jul y 14, 2004

The opinion of the c ourt in this matter was release d on J anuary 23, 2004, and the petitioner filed a n application for

permission to appea l. On J une 28, 2004, our supr eme court g rante d the application and re manded to this court, dire cting that we r econside r our previous conclusion that “the trial court char g ed the incor

rec t version of the ag g ravating c ircumstance in Tennesse e Code Annota ted sec tion 39-2-203( i)(5) ( 1982).” We ha ve re considere d this iss ue and c onclude that the trial court utiliz ed the c or re c t ve rs ion of

thi s st a tut e wh en in st ructing the jury a t th e re se nte nc ing he ari ng a s to ag g ravating c ircumstance s. Additionally , as explained in this opini on on rema nd, we err ed in the orig inal opinion by

stating tha t our supreme court ha d addre ssed, in the d i re ct ap peal of the

rese ntencing hearing, w hether “instructing an inapplica

ble ver sio no f

a g g r a v ati n g c irc u ms ta

n c e ( i) (5) was ha rmless err or.” In fac t, the court did not do so. I n our opinion on remand, we ag ain af firm the post-conviction court’s denial of r elief, a nd ref ile our opi nion which has be en alter ed only to refle ct our consider ation of those matter s, as pre viouslyexplained, set out in the remand or der.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

A L AN E. G L EN N , J ., delivere d the opinion of the court, in w h ich J OE G. R I L EY and T H O M A S T. W O O D A LL , J J ., joined.

Donald E. Da wson, Post-Conviction Defende r; and Jon J oseph Tucc i, Assistant P ost-Convic t ion De fe nd e r, Na sh vil le , T e nn e sse e , f or the app e lla nt, An tho ny

Da rr e ll H ine s.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l and Re po rt e r; Mic ha e l E. Moor e , Solic ito r Ge ne ra l; A ng e le M. Gre g ory , Assistant Attorney Gene ral; Dan M. Alsobrooks, District Attorney Gene ral; and B . Dent Morriss, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP INION ON REMAND

I. BACKG ROUND-2-

Th e pe tit ion e r, An tho ny Da rr e ll Hin e s, wa s ori g ina lly tr ie d in 19 86 in the Che a tham Co un ty Circuit Court for the murde r of Katherine J ea n J enkins. The jury found him g uiltyof first deg ree felony murder and sentenc ed h i m t o death. Al tho ug h th e pe tit ion e r’ s 1 98 6 c on vic tio n f or fi rs t deg ree felony

murder w as af

firmed on dire ct appe al by the Tennessee Supreme C ourt, the ca se wa s

rema nded for

rese ntencing beca

use of err oneous jury instructions. State v. Hines, 758 S.W.2d 515 (Tenn. 1988)

.

On re mand, the Cheatham County jury ag ain sentenc ed the pe titioner to death, finding three

a g g ra va tin g c ir c ums ta nc e s: “ [t]he [pe tit ion e r] w a s p re vio us ly c on vic te d o f o ne or

mor e fe lon ie s, other than the prese nt char g e, which involve the use or thre at of violence to the person,” Tenn. Code An n. § 3 9- 2- 20 3( i) (2 ) ( 1982 ); “[ t] he mu rd e r w a s e sp e c ia lly he ino us , a tr oc iou s, or

c ru e l in that it involved torture or

depra vity

of mind,” id. § 39-2-203( i)(5) ( 1982); and “[t ]he murder wa s committed whil e t h e [petitioner] was eng ag ed in committing, or w as an a ccomplice in the

c omm iss ion of

, o r w a s a tte mpt ing to c omm it, or wa s f le e ing a ft e r c ommit ti ng or attemp tin g to

c o m m i t , a n y f

i r s td e g r e e m u r d e r , ar s o n , r ap e , r o b b e r y, b u r g l ar y, l ar c e n y, k i d n ap p i n g , a i r c r a f tp i r a c y, or unlawf ul throwing , placing or di schar g ing of a destructive device or bomb,” i d. § 39-2-203( i)(7) (1 98 2) . Su bs e qu e ntl y , the Te nn e sse e Sup re me Cou rt a ff ir me d th e pe tit ion e r’ s c on vic tio n a ndde a th
sentenc e, and the Unit ed S tates S upreme Court denied c ertiora ri. 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 filed a pe tition for post-conviction relief on Marc h 4, 1997, which wa s twice

am en d ed

. On M ay9
, 2 0 0 2
, af t erev i d en t i ar y

h ea ri n g s , t h e p o s t -c o n v i ct i o n co u rt fi l ed i t s fi n d i n gs of fa ct and c onclusions of law a nd enter ed an or der de ny ing the petition.

A. P roof Pr esente d at 1986 Trial

The following proof, introduced at the petitioner’ s orig inal trial in 1986, was set out by our supreme c ourt in aff

irming the petitioner’s c onviction:

Be tween 1:00 a nd 1:30 p.m. on 3 March 1 9 8 5 t h e body of Katherine J ean Jenkins was discovere d wra pped in a she et in Room 21 of the CeB on Motel off Interstate 40 at Kings t o n S p ri n g s. The victim was a maid at t he motel and ha d been in the pr ocess of clea ning the room when she was kil led. Her outer clothing had been pulled up to her bre asts. Her panties had be en cut o r t o rn in two piece s and we re f

ound in another a

rea o f t h e room. A $20 bill had been pla ced unde r the wrist band [s ic] of her watch.

The c a u s e o f

d e a thw a s mu lt ip le s ta

b w o u n d s to th e c h e s t. Four deep, pe netra ting wounds, r ang ing f rom 2.5 inches to 6.4 inche s in depth, had bee n inflicted about t h e victim' s chest with a knife sim ila r t o a bu tc he r knif

e or a hu nti ng kn if

e . O the r s up e rf

ic ia l c uts

wer e fo u n d i n t h e ar ea of the nec k and cla vicle. The re w as also a-3- knife wound w hich pene trated throug h the upper portion of t

h ev ag ina into the mesentery

in the lower pa rt of the a bdominal cavity . Dr. Char le s H ar la n w h o p e r f o r me d th e a u to p s y o n th e v ic ti m' s body
te sti fi e d th a t in vie w of the sma ll amo un t of blo od in the va g ina l va ult it wa s his opinion t he wound oc curr ed at or about the time of de ath. The victim also had what he desc ribed a s "de fensive w ounds" on he r ha nd s a ndarm s.

Jenkins ha d b e e n le ft

in c ha rg e of the mot e l a t a

bo ut 9 :30 a .m. At that time the occupa nts of Rooms 9, 21 and 24 had not y et che cked out. When the manag er left her in charg e she w as g iven a Cheatham C o u n t y S t at e B an k b ag co n t ai n i n g $ 1 0 0 i n s m al l b i l l s t o m ak e c h an ge for motel g uests as they

paid. The ba nk bag
, bloody and empty , was dis c ov e re d in the ro om with he r bod y

. I t wa s h e r e sta bli sh e d h abit

to lock her automobile at all times and to keep her key s and billfold on her pe rson when sh e wo rk ed. Her ca r key s, billfold and her 1980

s i l v er -c o l o re d Vo l v o we re m i s s i n g.

On 1 Marc h 1985 defe n d an t had depa rted by bus from Raleig h, North Carolina. H e had be en g iven a non- ref undable ticke t to Bowling Gre en, Ke n t u ck y and $20 in spending money . The
trave ling time fr om Raleig h, North Carolina to Na shville, Tennessee

was a pproxi mately 17 hours. Prior to his departur e he w as obser ved by a witness to be c arry ing a hunting knife in a shea th which was

conce aled be neath his shirt. The witness a dmonished hi m t hat he

cou ld no t carry a kn if

e li ke tha t on th e bu s t o wh ich he re sp on ded "I

ne ve r g o an y wh e re nake d. " " I a lw a y s h a ve my bla de ." Som e tim e in the ea rly morning hours of 3 Mar ch 1985 he c hecke d in and was assig ned to Room 9 at the CeB on Motel. He wa s wea rin g a gre en army -ty pe fatigue jacke t, fatig ue pants and boots. He w as next seen at appr ox imately 9 : 30 a.m. walking in a direc tion from his room toward a drink machine. At that time he told the manag er he was not y et re ady to chec k out. He wa s also see n s o m et i me prior to 9:30 purcha sing a sandwich at a deli-restaurant acr oss the s tree t from the motel. The same witness who saw de fenda nt also saw anothe r strang er the re somew here betwee n 1:30 and 2:30 who she de scribed as taller tha n defe ndant with da rk hair, kinky

looking a nd wild-ey ed. He departed the restaur ant in the g ener al direc tion of t h e C eB on Mo te l. Th e Che a tha m Cou nty She ri ff te sti fi e d that he re sp on de d to

a ca ll to the CeBon Motel at 2:37 p.m. When he arrived on the sce ne blood spots in t he room we re be g inning to dr y an d the body was beg inning to stiffe n. Def endant wa s s ee n betwee n 11:00 and 11:30 a.m. walking from the dire ction of the Interstate towar d t he CeB on-4- Mo te l. A t 12 :40 p. m. a

wi tne ss s a w the vic tim ' s V olv o auto mob ile pulling out from the Ce Bon Motel driveway . I t was being operated by a per son who appe are d to be a man with very short, light color ed hair. The vehicle c rossed ove r the Int er s t ate a nd turned e ast on I nte rs ta te 40 . She fo llo we d b e hin d a nde nd e a vo re d to c a tc h u p b ut i t

s p e d o f f to w ar d N a s h v il le a t a

h ig h r a te o f

s p e e d

. D e f

e n d a n t w a s n e xt identified in possession of the ca r a f ew mi l es p ast Gallatin on In t e r s t a t e 6 5
, h e a d i n g i n t h e d i r e c t i o n o f B o w l i n g G r e e n , K e n t u c k y. A g roup of y oung people first endea vored to he lp him st art the stalled automobile and then g ave him a ride to Bowling Gre en. During the tri p t o Bow ling Gr een one of these w itnesses observe d some dried blood on the rig ht shoulde r of his shirt. He ca rried a jacke t which he kept folded. A fter he arrived at his sister' s home in Bow ling Gr een[,] de fe nd a nt t ol d her

he ha d e nd e a vo re d to pa y a no the r d a y ' s r e nt at a motel when he w as attac ked by the motel operator. He de monstrated to her how he had stabbe d the man. He also rela t ed t o h er he had a sum of money

. She could not r emember whether he said $35,000 or $ 3
, 5 0 0

. Def

endant a lso told hi s sister' s husband he ha d earned approximately

$7,000 working as a me chanic in North C arolina. H e dis play e d a

se t of ke y s to a Vo lvo a uto mob ile an d expla ine d th a t a man who had g iven him a ride attempted to rob h i m. Defe ndant purportedly

g rabbe d the steering w heel a nd when the c ar r an off the road h e g rabbe d the key s and ra n. Acc ording to the witness he wa s

wea ring an army

fatig ue jac ket which had som ething larg e, hea vy and bu lky in the po c ke t. T he wi tne ss h a d pr e vio us ly se e n d e fe nd a nt w ith a survival knife with a 61⁄2 t o 7 i n ch b lade ha ng ing f rom his belt. When defe ndant was taken into custody he volunteer ed the state ment that he had ta

ken the woma n' s car but had not killed her. Ac cording to the arr esting office r he had not advised the defe ndant that a woma n had bee n killed prior to the volunteer ed stateme nt. There was

e vid e nc e ho we ve r tha t de fe nd a nt w a s a wa re he ha d b e e n c ha

rg e d in Ten n es see on a

murder w arr ant. The vic tim's wa llet was found

wra pped in a thermal underw ear shirt a short distance f

rom wher e her

car was found a

bandoned. T h e key

to Room 9 of the CeBon Motel was found at the site where defe ndant had be en cam p i n g out near Ca ve City , K e ntu c ky . Wh e n a sk e d b y a TB I a g ent to t e ll the truth about the death of Katherine Jenkins[ ,] defendant state d that if the office r could g uara ntee him the death penalty he would conf

ess and tell him all about the murder a nd that he could tell him every thing he

wa nte d to kno w i f h e wa s o f a min d to . T he re we re mark s o n th e wa ll of Room 9 at the CeB on Motel appar ently made by someone stabbing a knife into the wall. When shown photogr aphs of the ma rks on the wall defendant responded that they wer e knife marks. The se marks-5- wer e obviously

made by a knife larg er tha n two taken f rom defe ndant

a t th e tim e of

his arr e st.

There is additional eviden ce in the rec ord incriminating defe ndant. That summ a

riz e d above e stablishes g uilt of the conviction offe n s e. A criminal offense may be esta blished exclusivelyby

c ircum st anti a l e vid e nc e a ndthe re c or d in thi s c a se is a bu nd a ntl y sufficie nt for a r ational trier of fac t to find defendant ' s g uilt bey ond

a re a so na ble do ub t.

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

B. P r oo f P r e se nt e d at

19 89 Re se nt e nc ing

The following proof wa s prese nted during the rese ntencing and set out by the supreme court in affirming the pe titioner’s dea th sentence :

Th e Sta te int

ro du c e d p ro of

that the de fe nd a nt h a d p re vio us ly been convic te d o f

a s s a u lt in th e f ir s t d e g r e e

. A d e te c ti v e w h o h ad investigated the ca se testified that the defe ndant had inflicted se rious ph y sic a l ha

rm to the vic tim

in thi s p ri or

c a se . T he Sta te a lso prese nted proof that the defe ndant had stabbe d the victim in the prese nt c ase multipl e times w ith a sharp instrument, probably a knife

. T hree of these w ounds were lethal and ha d penetr ated the vic t i m 's chest five to six inches. The patholog ist who had perfo rm ed the autopsy of the victim testified that all the lethal wounds w ere inflicted

a t a bo ut the sa me tim e a ndthat de ath wou ld ha ve oc c ur re d w ith in four to six minute s , m o s t of which time the victim would have

re m ai n ed co n s ci o u s

. De fe n s i v e w o u n d s we re fo u n d o n t h e v i ct i m 's hands. He r clothing had bee n pulled up and her panties had been c ut in hal f a n d r e mo v e d f

r o m h e r b o d y

. A b o u t th e ti me o f d e a th, a nd shortly afte r the infliction of the le thal wounds to the che st, the defe ndant had ins erte d a fla t object throug h the victim's va g inal orifice into the vag inal pouch until the instru m ent penetrated the vag inal dome and pa ssed into the abdominal cavity

. A t wenty dollar bill had been place d under the victim's watchband. No semen or any other e vidence of eja culation was f ound.

At the time of her d eath, the vic tim had in her possession a ba nk ba g c on ta ini ng app ro xima te ly $1 00 in pr oc e e ds fr om the mot e l. The empty bag was discove red in the r oom where the victim's body

was found. The victim' s automobile was also missing. A round 12:40 p.m. the day

of the murde r, an o t h er employ ee of the motel saw the-6- vehicle be ing driven out of the motel par king lot by

someone other tha n th e vic tim

.

I n mi t i g a t i o n , t h e d e f

e n d a n t p r e s e n t e d p r o o f t h a t , w h i l e in prison on this convict i o n , h e had pr esente d no serious disciplinary problems and posed no threat to the prison population. The de fenda nt also prese nted proof of a troubled c hildh ood. His father had aba n d o n e d th e f

a mi ly w h e n th e d e f

e n d a n t w a s y o u n g

. H is mother had an alcohol problem. I n his teens the def endant be came involved in s nif fing gasol ine a ndg lue a ndbe g a n to abu se a lc oh ol anddr ug s. He a lso ex hibited self-de structive beha vior. Dr. Pamela Auble, a clinical psy cholog ist, testified that the defe ndant was suf fering f rom a par anoid personality disorder and dy sthy mia, or chr onic depr ession. Ac co rd i n g t o Dr

. Au b l e, t h e d ef en d an two u l d s u p p r es s h i s fe el i n gs

un til the y " bo ile d u p" un de r s tr e ss. I n h e r o pin ion , th e de fe nd a nt, who had r eturne d from turbulent visi ts with his parents and g irlfriend shortly befor e he c ommitt ed the murde r, wa s under stre ss when he killed the victim. Dr. Ann Marie Cha rvat, a sociolog ist, also testified ab o u t th e d a ma g in g e f

f e c t o f th e c ir c u ms tan c e s o f h is c h il dhood on the de fe nd a nt.

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

C. P r oo f P r e se nt e d at

P os t- Co nvi c ti on H e ar ing

Wit nesses testify ing at the post-conviction hearing s included Ken J ones, who testified at the petitioner’s 1986 trial a nd 1989 rese ntencing hearing that he had found the victim’s body ; Marion J ones, Ke n J ones’s wife ; and Vernedith Whit e, his g irlfriend. N either Mr s. J ones nor Ms. White had
t es t i fi ed p re v i o u s l y

i n gu i l to r s en t en ci n g p ro ce ed i n gs
Ken Jones testified via deposition from a nursing home in Hende rsonville, Tenne ssee. In the
y ear s following the petitioner’s re sentenc ing, Jones suffe red a stroke and w as conf

ined to a nursing home; there fore , he wa s unable to testify in person at the post-c onviction hearing. He testified that he found the victim’s body at the CeBon Mote l. He ac knowledg ed that he w ent to the motel on the day of the victim’s murder

to rent a r oom with Vernedith Whit e, with whom he had be en having an

a ff a ir fo r t wo y e ars , a lth ou g h a t tr ia l he ha d te sti fi e d that his re a so n f or be ing a t th e mot e l w a s to us e the re stroom. J ones explained that it had bee n his and Ms. Whi te’s cust o m t o re n t a room at the CeBon Mote l most every

Sunday . He usua lly

rente d a room fr om the victim, who was a maid at the motel. He rec alled that, on the day in que stion, he and Whit e had arrived at the motel be tween 10:00 and 11:00 a.m. Jones could not find any o n e at the motel, so he a nd Ms. Whi te sat in his van and waited f or someone to a

rrive to r ent them a r oom. They subsequently drove to a

near by restaur ant and re turned to the motel within fiftee n minutes. J ones said that he could se e the motel par king lot the e nti re tim e he wa s a t th e re staur a nt andne ve r g ot o ut of his c ar w hil e a t th e re staur a nt. He sa id-7-

that he found the victim’s body within one hour of the time they arrived at the motel. Jones further testified he kne w that key s were kept in a box outs ide the off ice, so after

no one showe d up to rent them a room, he retrie ved a ke y from the box.

Upon entering the motel room which had a maid’s cart sitti ng outside, J ones saw the victim’s bo dy , im me diate ly

ra n o ut o f the ro om, dr ov e a c ro ss the str e e t to a re staur a nt, a ndha d s ome on e c a ll the sh e ri ff . H e c ou ld n ot r e c a ll e xac tly wh a t he tol d th e pe rs on a t th e re staur a nt abo ut the v ic tim

. Th e re a ft e r, he dr ov e Ms. Whit e to h e r h ome in D ic ks on and re turne d to the mot e l to dis c us s h is discovery with Sheriff Weakle y , whom he said wa s a fri en d of his. He pr esumed that the she riff knew why he wa s at the motel that day and admitted he told the she riff that he was c oncerned about his wi fe fi nd ing ou t w hy

he ha d b e e n th e re

. Jone s te sti fi e d that She ri ff Wea kle y tr ie d to “ pu t [hi m] at ease about the problem of being at the motel there with Vern[e]dith.” W hen aske d further about thi s is su e , Jon e s said tha t he un de rs too d She ri ff Wea kle y wo uldno t qu e sti on him

abo ut i t. H e a lso understood that none of

the attorne y s w o u l d q u es t ion him about it, but rema ined ner vous about testify ing at the trial. He sa id that Sheriff Weakle y called him the evening of the murde r and a sked him no t to dis c us s it wi th any on e . Jon e s said that he wa s n ot c on ta c te d b y a ny a tto rn e y prior to h is testimonyat trial, and his first c ontact with any at t o rn eyoccur

red w hen he w as ca lled to testify at the trial. Jones testified that he knew nothing conce rning the ac tual murder itself. H e stated tha t he didno t se e a ny on e a t th e mot e l th a t mo rn ing oth e r tha n a wo ma n w ho pu lle d in to the pa rking lot in either a brown or maroon car. He could not rec all testify ing at trial that the woman left her c ar a nd knocked on the door of the r oom where he later found the victim.

Marion Jones, Ken J ones’s wife, testified at the post-conviction hearing as to her husba nd’s longsta nding a ffa ir with Verne dith Whit e. She did not remembe r exactly when she learned of the aff air b u t kn e w o f

it b y th e ti me o f

th e p e ti ti o n e r ’ s tria l i n 1 9 8 6

. Sh e a n d K e n Jo n e s h a d b e en marrie d since 1956, a nd he had been involved in se vera l e x tramarital affairs. She testified that af ter J ones suffe red a

stroke and e ntere d the n u rs i n g h o m e, she lea rned tha t he had g iven power of attorney to Ms. W hite. She also discover ed that he ha d g iven M s

. W h i t e approximately $30,000. She did not know that her husband ha d testified at t h e 1986 trial unti l Connie W estfall, an investigator with the pos t-conviction attorney ’s office, contacted her y ear s later. She said that her husband had a

temper a nd had bee n verba lly abusive to her

but had neve r hit her.

Vernedith Whit e, Ke n J ones’s former g irlfriend, te stified at t he post -convic tion hearing that she had ne ither bee n called to te stify at the 1986 trial nor been contac ted by any one for

investigative purposes prior

to the post- conviction proc eeding s. She acknow ledg ed at the he aring that she had been involved in a n aff

air with Ke n J ones for

eleve n y ear s and was a t the CeBon Mote l on the day J o n e s d is c o v e r e d th e v ic ti m’ s b o d y

. E a c h w e e k th e y r e n te d o n e o f tw o r o o ms , n o r ma ll y f r o m the manag er or

the maid, and we re usually at t he mot el from approximately 9:00 a.m. until 12:00 noon.

Acc ording to Ms. W h i t e, Ken Jones picked her up around 8:00 a .m. on Sunday , Marc h 3, 1985, as wa s his custom. S he lived in Dickson a nd estimated that they arrived at the motel ar ound 9:0 0 a .m. Th e y

c ou ld n ot f

inda ny on e a t the mot e l and wa ite d in the pa rking lot . Sh e su g g e ste d to J ones that they

leave and g o home or somewhe re e lse instead of w aiting, but h e d i d not take her-8-

advice . She reme mbere d a woman pulling into the motel parking lot, but did not rec all her le aving her vehicle and knocking on the door, as J ones had testified at the 1986 trial. She said they did not leave the motel parking lot to go to the re staurant a s J ones h ad t es t i fi ed

. After they had wa ited awhile at the motel, J ones told her he was g oing to g et a r oom key from a dish in the off

ice and they would just use the room and leave. Ms. White said that, after J ones re turned to the va n with a key
to r oo m 21 , th e y

dr ov e ov e r a ndpa

rk e d in fr on t of

that r oo m. Jon e s tol d he r to wa it in the va n w hil e he we nt to check the room. Ms. Whi te testified that the c urtains to the room we re o p en, and she

c o u l d s e e s h e e t s o n t o p o f b o t h b e d s

. J o n e s w a l k e d i n t h e r o o mp a s tt h e b e d s , s a w t h e v i c t i m ’ s b o d y, and ra n out of the room. She could see J ones t he entire time he wa s in the room, which wa s “[n] ot

even a m i n ute.” He was ve ry scar ed whe n he ra n out and told her ther e wa s a dea d woman in the room. She wante d to go inside, but he would not le t he r. She said that J ones did not have a ny blood on him when he ca m e o u t of the room a nd returne d to the van. She believe d that it was approximately

12:00 noon when Jones found the body

. They immediately

drove to the r estaura nt

a ndc a lle d th e sh e ri ff . Sh e wa s n ot s ur e if Jone s or a wo ma n a t th e re staur a nt a c tua lly pla c e d th e c a ll. I n fo rm ed that the emer g ency call had be en made at 2:36 p.m, she said that she must have ha d her times wrong . J ones drove her home, which was an approx imately forty -five- minute drive fr om the motel, and then re turned to talk to the sheriff.

Ms. Whit e te sti fi e d that sh e a nd Mr

. Jone s ha d be e n tog e the r a t the Ce B on Mo te l on a t le a st 100 occa sions prior to March 3, 1985, but they had never befor e retrie ved a key in the manner they did that day

. She could not r eca ll if J ones returne d the key to r oom 21. A lthough she had see n the victim clea ning rooms at t he mot el on prior occasions, s he did not know her name. She r eca lled that the d a y o f th e mu r d e r w a s a w ar m d a y , a n d s h e a n d M r

. Jo n e s s a t in th e p ark in g lo t w ith th e van doors op e n

. T h e y n e ith e r s a w n o r h e ar d a n y s u s p ic io u s a c ti v it y a t th e mo te l th a t d a y p r ior to Mr. J ones di scover

ing the victim’s body

. She believed they would have seen any one who enter ed or le ft either r oom 21 or room 9.

Ms. Whi te said that she a nd Mr. J ones we re co -o wn er s of a sporting g oods store and tha t Sheriff Weakley

was a reg ular c ustomer. S he testified that she never discussed the e vents of Mar ch 3, 1985, with Weakley

and under stood that he had told J ones t h at i t wa s al l ri g ht for him to take Whit e home a nd then re turn to discu s s t h e m at t er. She sa id that her re lationship with J ones had ended a bout two y ear s after

Marc h 3, 1985. Acc ording to Ms. Whit e, ther e wa s no possibil ity that Ken Jones had anything to do with the victim’s murder

.

Sandra K ilgor e testified that s h e s er v ed on the jury in the petitioner’s 1986 trial. Af ter learning that she had be en sele cted f or a jury
, she called her pastor from home and asked f or biblical scripture s reg arding capital punishment. She said that she spoke to he r pastor befor e she wa s sworn in a s a jur or in the pe tit ion e r’ s tr ia l. She didno t kn ow that th e Sta te wa s se e kin g the de a th p e na lty in the petitioner’s case until she came to c ourt for jury service . Acc ording to Ms. Kilgore , there was some division among the jur ors during deliberation.

M ar ySiz emore of the Cheatham CountyAmbulance Service testified she a nd her pa rtner

we nt t o t h e C e B o n M o t e l i n r e s p o n s e t o a c a l l f r o m s o m e o n e a t t h e D o n n e l l R e s t a u r a n t abo ut a-9-

stabbing at the motel. Ms. Siz emore and her partne r sea

rched ro o m t o room until they came to a

room with a maid cart outside. Her partne r indicated that the room was open. Theyen t er ed t he room and found the victim ly ing on he r bac k wra pped in what a

ppear ed to be a

bedspre ad up to her neck. The victim ’s wounds wer e not rea dily appar ent, and they had to unwra

p her a nd pull up her dress to ac tually

see the wounds. They wer e not able to f ind a pulse on the victim. Ms. Siz emore

reme mbere d that the man who ha d reported the stabbing subsequently returne d to the scene and
ta lke d w ith the sh e ri ff . Sh e la te r l e arn e d th a t th is m a n w a s K e n Jon e s.

Max ey J ea n Ki t t rell testified that she w as working at the CeB on Restaura nt on March 3, 1985, when a man came i n and reported a stabbing at t he C eB on Motel. She called an ambulance

s er v i ce an d re p o rt ed t h e s t ab b i n g.

J . Kenne th Atkins, one of the prose cutors in the petitioner’s orig inal trial in 1986, te stified that he wa s involved both in t h e prepa ration for trial and the tria l itself. He denie d that Sheriff Weakley had aske d him not to question Ken J ones reg arding his r eason f or being at the CeB on Motel on the day

of the murde r, but ac knowledg ed knowing that J ones w as at the motel with a woman oth e r tha n h is wi fe a ndthat Sh e ri ff Wea kle y wa s c on c e rn e d a

bo ut e mba

rr a ssi ng Jone s. Atkin s said that he had know n J ones prior to his involvement in the petitioner’s c ase be cause he had “ prosec uted

a g uy that so ld dru g s and re su lte d in [ Jone s’ s] son’ s death. ” He te sti fi e d tha t J on e s did n ot e xpre ss

a ny re se rv a tio n a

bo ut t e sti fying a t th e pe tit ion e r’ s tria l, andShe ri ff Wea kle y ne ve r a sk e d h im t o li mit his qu e sti on ing of

Jone s. Atkin s a c kn ow le dg e d th a t he didno t in te rv ie w V e rn e dith Wh ite . I n h is opinion, trial counsel wer e not def icient in their re prese ntation of the petitioner.

Jame s W. Kir

by , a fo rm e r a ssi sta nt d ist

ri c t a tto rney ge ne ra l a nd , at th e tim e of the po stconviction hea

ring , the Executive Direc tor of the Te nnessee District A tt o rn ey s’ Gene ral Confe renc e, testified that he wa s involved in prosec uting the petitioner at the 1986 trial. He sa id that Atkins was the prosec utor who talked w ith Ken J ones and e x amined him on th e wi t n ess stand. Kirby acknow ledg ed that he w as pre sent at the de position of J ones take n p ri o r t o the post-conviction hearing a nd had brie fly

discussed it with Atkins. He said that the deposition contained tes t i m o ny that was not b ro u gh t o u t at the 1986 trial. He did not reca ll having any discussions with S heriff Weakley prior to the petitioner’ s trial, but it was his unde rstanding that Atkins reca lled discussing J ones’s situation with Sheriff W eakle y

. Kirby also testified that in the 1980s most of the juries he

wa s in vo lve d w ith in C he a tha m Coun ty we re do min a te d b y

me n; h ow e ve r, he re c a lle d o ne de a th penalty case wher e the jury

had a f emale f orepe rson.

Rob e rt S

. W il so n wa s th e fi rs t a tto rn e y app oin te d to re pr e se nt the pe tit ion e r, bu t hi s repr esentation was short-lived bec ause he was hire d by t h e d i s t ri ct attorne y

g ener al’s off

ice approximate ly

tw o mo n th s a f

te r h is ap p o in tm e n t. H e s a idth a t h e r e p r e s e n te d th e p e ti ti o n e r from sh ortly a ft e r h is arr e st in Ma

rc h 1 98 5 to app ro xima te ly la te June 19 85 . H e be g a n e mpl oyme nt w ith the dis tr ic t a tto rn e y

g e ne ra l’ s o ff

ic e on Au g us t 16 , 1 98 5, a nd sa id that he ne ve r d isc us se d th e c a se with any one at that of

fice . He testified that he had r ecommende d Steve Stack as his co-c ounsel, and Stack was a

ppointed. He kne w t h at Stack had no prior death penalty experience when he

re c omm e nd e d h im.-10-

Steve Stack re prese nted the petitioner at the 1986 trial and the 1989 rese ntencing . He ha d
tr ie d tw o c a se s to a

jury in the tw e nty

mon ths th at he had been p ra c tic ing la w p ri or to h is appointment and did not believe he was qua l i fi ed t o s er v e as le ad counse l on the case . Stack estimated that betwe en 60 and 75% o f his prac tice at the time wa s civil. W illiam W ilkinson was app oi nt ed to a ssi st St a c k a ft e r Wi lso n w a s a llo we d to wi thd ra w. Wilkins on ha d p ra c tic e d w ith Wils on pr ior

to the tim e he joi ne d th e dis tr ic t a tto rn e y g e ne ra l’ s o ff

ic e . St a c k c onsi dere d h ims e lf to be co-counsel in the ca se, althoug h he per formed ma ny of the lea d counsel’s duties. He spent 38.9 in-court hour s and 133.6 out-of- court hours on the petitioner’s c ase. H e believe d he wa s paid, at the time of his repre sentation of the petitioner at the tria l, $20 an hour for out-of-c ourt time and $30 an hour for in-court time. By contra st, in reta ined cases he char g ed between $60 and $75 per hour for his service s. At the time of his repr esenta tion of the petitioner, he did not have an of fice staff or

an investigator. Acc ording ly , he and Wilkinson did all of the investigation themselves. Although Stac k was in private prac tice during the 1986 trial, he was employ ed at the public def ender ’s offic e by

the time the case was re manded by the supreme court for

rese ntencing and, as a p u b l i c d efe nder, w as appointed to re prese nt the petitioner at the r esente ncing

.

Stack testified that he obtained a mental evaluation f or the petitioner to d etermine competenc y issues and whe ther a n insanity defe nse would be a vailable prior to the orig inal trial, but these ser vices did not cove r any mitigation issues. He r equ es t ed t h e ser vices of an independe nt psy chiatrist, a private investig ator, a nd an independe nt me ntal evaluation, but these reque sts were denied.

Stack said that he ha d interviewe d many of the witnesse s who testified at trial, including the

owner s of the motel and Sheriff Weakley

. He rec alled tra veling to Bowling Gre en, Ke ntucky , but could not reme mber the spe cific w itnesses he intervie wed ther e. He did not run a criminal backg round che ck on Da niel Bla ir and, ther efor e, did not know he h ad b een convicted of theft of liv e sto c k, wh ic h mig ht ha ve be e n use d for imp e a c hme nt pur po se s. He a lso int e rv ie we d B ill Hi ne s, the petitioner’s ste p fathe r; Bobby J oe Hines, the petitioner’s ha lf-brothe r; and possibly Ba rbar a Hi ne s, the pe tit ion e r’ s moth e r. Al tho ug h he re c a lle d tra ve lin g to the ho me of Vi c toria Hi ne s D a nie l, the petitioner ’s s i s t er , h e did not reme mber a ctually meeting with her. He acknow ledg ed that he knew she would testify that she saw blood on the petitioner’s clothing, but he did n o t o b t ai n any information t o impeach he r testimony . He did not interview the petitioner’s f ormer g irlfriend, Melanie Chandle r, or he r mother, Vir g inia Chandler, both of w hom lived in North Carolina.

Sta c k a c kn ow le dg e d th a t he didno t present all of the mit ig a tio n p ro of that th e po stconviction def

ender had bee n able to asse mble. He pointed out, however , that at the time of the tria l and re sentenc ing, he did not have t h e b en efit, apparently ref erring to c ounsel repr esenting the pe tit ion e r at th e po st- c on vic tio n h e ari ng , o f a thr e e -y e ar pe ri od of tim e to inv e sti g a te the c a se a s w e ll

as numero u s a tt o r n e y s a n d in v e s ti g a to r s to w o rk o n th e mi ti g a ti o n p r o o f

. H e te s ti f ie d th a t, a s an appoint ed at torney , he did not have the benef it of working on the ca se as much a s he would have liked beca

use he c ould not affor d to do so. Howeve r, he f elt he had zea louslyrepr esente d the petitioner.-11-

Stack also testified that the defense did not challeng e the composition of the jury venire at either the 19 8 6 trial or the 1989 r esente ncing , say ing that it was not considere d as an issue at the

o ri gi n al t ri al

. Al th o u gh h e w as aw ar e t h at i tm ayh av e be en an i s s u e at t h e ti m e of t h e r es en t en ci n g, the y didno t ha ve the ne c e ssa

ry tim e to d e vo te to p ur su ing it.

Stack said that he did not interview Ken J ones prior to the t rial bec ause he had bee n told by Sheriff Weakley

that J ones wa s at the crime scene for only a very short period of time a nd did not know any thing about the m urder itself. Stack t estified that he knew at the time of trial that pa rt of Ken Jones’s testimonywas false or inacc urate . Howeve r, he e x plained that he he ld Sheriff Weakle y in high r eg ard a nd trusted what he had told him, say ing: “ I mean, I would take that man’ s word for anything in the wor ld. He say [] s this hadn’t got a dog in the hunt
, don’t embar rass the man. I

wasn’t g oing to e mbarra ss the man.” Stack a cknowledg ed that the de fense team should have interviewe d J ones and tha t it was “ridiculous for [ them] not to have gone to interview him.” He said there wer e discrepancies in Jones’s testimonyreg arding his tim ing of the eve nts wh i ch s h o u ld have be en discovere d and deve loped for the defe nse. S tack acknowledg ed that J ones testified a t trial that he did not know the g ender of the victim at the time of discove ry beca use the victim’s body

was

cover ed with a cloth or sheet. Howeve r, t he person who m ade the emer g ency call said that a woman had bee n stabbed.

Sta c k te sti fi e d that he be c a me a n a ssi sta nt p ub lic de fe nd e r i n 1 98 8 a ndwa s a pp oin te d to

re pr e se nt the pe tit ion e r at r e se nte nc ing , a s w ere S hi pp Wee ms, the pu bli c de fe nd e r, a ndPhi lli p Ma xey . A s for the de fe ns e te a m’ s dec isi on to de la y the ir op e nin g state me nt at r e se nte nc ing un til jus t prior to their proof

, Stack testified that they discussed this issue, b u t he did not know why they decide d to do so. He said that Maxey
, who was the l east ex perie nced of the t hree
, g ave the opening statement for

the def ense, a nd both he and Weems ha d anticipated a differ ent opening

. He testified that the opening did not outli ne the pr oof they planned to pre sent, but r ather simplyasked the jury to list en to their proof . He testified that the defe nse team made the tactica l decision not to present

a closing arg ument beca

use it wa s their opinion that Gener al Kirby had not “pr esente d a very

forc eful arg ument,” and the y

wanted to pr event Gene ral Atkins, w ho was “ exceptional in his abilit y to . . . bring emotions out in a jury ,” from making a re buttal arg ument. Stack said that Ge nera l Atkins had g iven a ve ry impassioned closing arg ument at the orig inal trial, and they wanted to ke ep him from d o i n g s o at t h e r es en t en ci n g.

Sta c k r e c ou nte d th a t a t r e se nte nc ing the y cal led Dr . Pa me la

Au ble a ndDr . A nn Ma ri e Cha rv at to tes ti fy fo r m iti g a tio n p ur po se s. Th e tw o h a d b e e n r e c omm e nd e d b y the Capit a l Ca se Resource Center, with whom def ense c ounsel worke d during the re sentenc ing, and he believe d they

c ou ld e xpla in ho w the pe tit ion e r h a d b e c ome the pe rs on he wa s. Dr . Ch arv a t di d n ot c ome a c ro ss

as we ll as they

had hoped, a nd he did not believe the jury had g raspe d every t h i n g she said. Stack

sa idth a t th e d e f

e n s e te a m d idn o t kn o w th e “ e xte n t an d th e n a tu r e o f th e ty p e s o f ab u s e th a t [the petitioner] went throug h g rowing up” and that the rese ntencing jury never saw the ba ckg round that the petitioner ha d. Stack furthe r ac knowledg ed that they did not attempt to challeng e the petitioner’s pr ior fe lon y c on vic tio n in Ke ntu c ky

be c a us e of

the tim e c on str a int s. He c on c lud e d th a t th e pu bli c-12-

de fe nd e r’ s o ff

ic e didno t ha ve , a ndsti ll d oe s n ot h a ve , th e su ff ic ie nt r e so ur c e s o r the tim e to d e vo te to a ca pital case

.

Wil liam G. Wil kinson, who had bee n prac ticing la w since 1968, te stified that he wa s appointed to assist Steve Stack, who ha d been in pr actice a “r el atively short time.” Wilki nson de sc ri be d h is r ole a s “ kin d o f s e nio r c ou ns e l” bu t sa id that Sta c k p ro ba bly did mor e wo rk

on the c a se than he did. He said he ha d billed 59.5 out-of-c ourt hours and 34.4 in-c ourt hours on the pe titioner’s

c a se , b ut tho se nu mbe rs we re ve ry c on se rv a tiv e a nddidno t in c lud e tim e he sp e nt t ra ve lin g to Bow ling Gr een, Kentucky

. Wil kinson testified that he believe d he had suf ficient time to prepa

re f or the petitioner’s tria l, that he was adequately prepa red for trial, and that none of his tactica l decisions
turne d o ut t o b e e rr on e ou s.

Wil kinson knew that the pe titioner’s sister, Victoria Hines Daniel, had an alcohol and dr ug abuse problem and rec alled examining her husband, Ernest Daniel, about her drinking problem. He
was not aw are of any

sexual or ph y s i cal abuse alleg ations of Mrs. Da niel but acknowle dg ed that inf or ma tio n as to this wo uld ha ve be e n use fu l. Wilki ns on sa id that th e pe tit ion e r “ ma y ” ha ve tol d h i m ab o u t t h e ab u s e i n f

l i c t e d u p o n h i m b y h i s s t e p f a t h e r

. H e h a d t h e p e t i t i o n e r e x a m i n e d b y a ps y c hiatr ist

wh o d e te rm ine d h e wa s c omp e te nt t o s ta ndtr ia l.

Wil kinson said he did not interview the four people from Ke ntucky who g ave the petitioner a ride and did not know bef ore tria l that one of them, Daniel Blair, was g oing to testify that he saw blood on the petitioner’s shirt. Ha d he known of the s ubstance of Blair’s testim ony , he would have

c he c ke d B la ir ’s c ri min a l r e c or d f or imp e a c hme nt p ur

po se s. He re c a lle d tha t Blair te sti fi e d a bo ut h is

abil ity to r e c og nize blo od a nd abo ut w a sh ing blo od sta ins ou t of fa bric a lth ou g h h e c ou ld n ot r e c a ll Bla ir’s exact t estimony

. He acknowledg ed that, in hindsight, i t would have been helpful to have ha d

a n e xpe rt re fu te B la ir ’s te sti mon y

abo ut w a sh ing ou t bl oo ds ta ins

.

Wil kinson said that he discussed Ken Jones’s situation with S heriff Weakley and believe d that Weakley

had told him everything he knew. He did not interview Ke n J ones, Ve rnedith White, or Virg inia Chandler a nd, in hindsight, would liked to have ha d more time to inquire about why J ones and White sat in front of the CeBon Mote l for over three hours on the day

of the murde r. As for Dr . Har lan’s testimony , Wil kinson said that it may have be en helpf

ul to h ave had another patholog ist review Ha

rlan’s f indings.

Reg arding the petitioner’s jury , Wil kinson said that three w o m en , t wo of whom he kne w,

se r v e d o n th e ju r y a n d h e b e li e v e d h e h a d a d e q u a te ly p r e p ar e d f o r th e ju r y s e le c ti o n

. H e was not

a wa r e o f a n y d i s p ar i t y b e t w e e n t h e n u m b e r o f w o m e n a v a i l ab l e a n d t h e n u m b e r a c t u a l l y c a l l e d to

serve in Cheatham County . He wa s awa re of some Tenne ssee c ase la w prior to 1985 where challeng es had be en made to jury composition based on ra ce or g ender

. Shipp W eems wa s the District Public De fende r for the T wenty -Third Judicial District, which inc lud e d Ch e a tha m Coun ty , at the tim e of re se nte nc ing a nd in that capa c ity ha d b e e n a pp oin te d to repr esent the pe titioner at rese ntencing

. He wa s not involved in the prepar ation phase of-13-

rese ntencing but assisted in voir dire. Weems c onfirmed Stack’ s testimonythat they ag ree d to waive

c los ing arg ume nt at r e se nte nc ing in o rd e r t o p re ve nt the pr os e c uti on fr om g ivi ng a re bu tta l arg ume nt. He ha d tried six or seve n capital c ases prior to the petitioner’s re sentenc ing and was a war e of the importance of mitigation proof. I n hindsight, he felt that much more work should have been done

on the pe tit ion e r’ s so c ia l hi sto ry fo r pu rpo se s o f m iti g a tio n. As to the wo rkloa d o f the pu bli c defe nder’ s office in 1989, Weems said that the office had thre e attorne y s who ea ch han dled approximately 800 case s. Although the office was budge ted t o have an investigator, that position was filled by

an attorne y

beca use the off

ice wa s only b u d get ed t o have two attorney s, and that number c o u l d n o t h an dle the entire district. I n his opinion, at the tim e of the petitioner’s

rese ntencing , the attorne y s i n t h at p ublic defe nder’ s office “didn’t have the lux ury to prepa re a misdemeanor c ase muc h less a ca pital case .” Weems testified that they wer e “looking for women” when c hoosing the jury

for r esente ncing , and conc luded that the def ense t eam did not g et the jury p o o l t h eywa n t ed fo r t h e r es en t en ci n g.

Phill ip Max ey , a juvenile c ourt judg e at the time of the post-convic t i o n h earing, ha d been appointed to re prese nt the petitioner at resentenc ing. At the time, he had be en pra cticing for a bout fi ve y e ars . A lthou g h h e ha d ta ke n s e ve ra l c a se s to tr ia l, h e “ kn e w v e ry lit tle ” abo ut c apit a l c a se repr esentation at the pena l t y phase. H e testified that he interviewe d Sheriff Weakley , the inv e sti g a tin g of

fi c e rs , an d a juve nil e c ou rt jud g e in B ow lin g Gr e e n, Ke ntu c ky

. He a lso wo rk e d w ith Drs. Auble and Charvat and the Capital Case Resource Center. He sa id that the defe nse tea m was

as prepa red as they could have been and that they had been able to ne g otiate two life sentenc es for the pe tit ion e r, wh ic h w e re de nie d. He be lie ve d the y ha d pr e se nte d s tr on g mit ig a tio n p ro of a ndsa id the y w a i v e d c l o s i n g ar g u m e n ti n a n e f f o r tt o p r e v e n tt h e S t a t e f

r o mm ak i n g a

r e b u t t a l ar g u me nt. They believed that the State would wait until rebuttal to “ rea lly throw it a ll” at the jury

. He did not

rec all any discussions about challeng ing the jury venire

.

Daniel B lair, who testified at the petit ioner’s origina l trial, was one of t he four people f rom Kentucky who picked up the petitioner on Mar ch 3, 1985, on I nterstate 65, afte r they noticed his ca

r was disabled, a nd drove him to Bow ling Gr een, K entucky . Bla ir was on pr obation at the time and was not supposed to have left the State of K entucky , althoug h he wa s never char g ed with violating his probation and wa s told bya Ke ntucky deputy sheriff that his leaving the state wo u ld not be a problem. At the post-conviction hearing, B lair testified that he had see n “what looked like blood” on the petitioner’s shirt, a lthough at the trial he ha d testified that it was blood.

Melanie Chandle r, the former girlfriend of the pe titioner and a f riend of V ictoria Hine s Daniel, his sister, testified that she and the pe titioner had a c hild, Anthony S cottHines, who wa s born January 1, 1981. The petitioner’s mother adopted the child when he was two y ear s old. She
te sti fi e d s he ha d la st s e e n th e pe tit ion e r a ro un d F e br

ua ry 19 85 wh e n h e c a me to he r hou se in N orth Carolina. When he arrived, he only had a few items w ith him, one of which was a s m al l
, fo l d i ng kn if e sh e pr e vio us ly

ha d g ive n h im. Du ri ng his vis it, the y we nt to a pa rt y wi th s ome frie nd s o f h e rs , and, as they

wer e re turning home, the petitioner a nd the frie nd who was driving g ot into an arg ument. After

the petitioner g rabbe d the frie nd who was driving the c ar, Chandle r gr ab b ed the petitioner, who a ccide ntally struck her in the ey e, causing bruising. She said that he ha d never befor e-14-

struck her but had alway s been protective. Chandle r’s mother, V irg inia Chandler, c alled the police and for ced the petitioner t o l ea v e. L ater that night, the pe titioner appea red at Melanie’s w indow. She allowed him inside, and he hid in her cl o s et for approxim ately one we ek bef

ore he r mother d i s c o v e r e d h i m

. H e r

m o t h e r b o u g h tt h e p e t i t i o n e r

a o n e

- w a y b u s t i c k e tt o K e n t u c k y.

Cha nd le r s a id tha t sh e kn e w h e r m oth e r h a d te sti fi e d a t th e pe titio ner’ s tr ia l, b ut d e fe ns e counsel ne ver c ontacted her. She acknow ledg ed knowing she wa s supposed to appea r in court at the trial, but she had just had a baby and dec ided not to do so. She testified that she did not know that the petitioner wa s on trial for murder. She thought her m other li ed at the t rial whe n she stated that sh e ha d s e e n th e pe tit ion e r s ha rp e nin g his kn if

e wi th a bo ots tr ap. She sa id that he r m oth e r la te r t old her tha t the petitioner had be en found g uiltyof murder and had be en execute d

. S h e believed the petitioner wa s dead until the post-convic tion defe nder’ s office contac ted her in 1997 or 1998. Since learning that the petitioner was alive and in prison, she had written him several letter s and had visited him in prison.

Robert Erne st Daniel testified that he had bee n marrie d to Vict o ri a Hi nes, the pe titioner’s sister, for a

bout two y ear s. He met the petit ioner while the petit ioner was on parole in Kentucky and g ave him a job doing construction work. The pe titioner was a ha rd worke r, and the y

wer e friends “[t] o a point.” Dan i el said that the petitioner c arried a small pocke tknife with him on the job and also had a n “Army

type survivor” knife with a f ix ed blade . He be lieved that the knife blade w as approximately

six inches long , with one end se rr at ed and the other sharp. H e re called that the petitioner g ave the knife to his brother, B obby J oe, who ke pt it in a drawe r at their home

.

Daniel testified that on March 3, 1985, the petitioner appea red at his apartment, we aring blue jeans, a white t -shirt, an Army jacke t, and white tennis shoes. Victoria’ s birthday was the day

befor e or the da y afte r the pe titioner arrived, and the petitioner wanted to buy a g rill f or her . Daniel g ave the petitioner some money beca use the pe titioner did not have enoug h to purcha se the g rill. He then drove the petitioner to Park City or Cave City , Kentucky , and dropped him off. L ater that night, the police ca me to his home and questioned him about the petitioner’s wher eabouts. At the time, he thought the police wanted to que stion the pe titioner about a pr obation violation, so he “ac ted stupid.” When he later

learned that the police wanted to que stion the petitioner in connec tion with a murder, he told the police whe re he had take n the petitioner.

On c ro ss- e xami na tio n, Da nie l sa id that he test if ie d a t th e orig ina l tria l th a t V ic toria on ly drank occa sionally “bec ause she was my wife at the time and I would be very protect i v e o f her.” This t e s ti mo n y w a s in a c c u r a te b e c a u s e V ic to r ia d r a n k h e a v il y

. H e d e n ie d te s ti f y in g th a t the petitioner had something bulky in his Army

jacke t and that he did not know whe n Victoria’ s birthday was. He denied r emembering se eing t h e p et i t i o n er wi th a set of c ar ke y s or that he ha d asked the petitioner why

he had a Volvo. During a re cess, the c ourt order ed Da niel to take a br eath a lcohol
te st. Da nie l a dmi tte d th a t he ha d co ns ume d “a c ou ple of be e rs ” be fo re c omi ng to t e sti fy a t th e po stconviction hea

ring , and the c ourt found him to be in contempt, o rd er i n g him to serve twenty -four ho ur s in the Che a tha m Co un ty Jail

.-15-

Victoria H ines Danie l Furlong , the petitioner’s sister, te stified at both the orig inal trial and the post-conviction proc eeding . She said t h at h er stepf ather , Bill Hines, wa s abusive to her , her siblings, and her

mother. He r stepfather used “ tobacc o sticks, belts, belt buckles . . . anything that he could g et a hold of to whoop us with.” He also drank beer and liquor “all the time” which c aused his a tti tud e to c ha ng e , a ndthe “ be a tin g s g ot w or se .” She sa id that the pe tit ion e r of te n a tte mpt e d to intervene to protect he r and the ir sister, Debbie , which ca us ed the petitioner to be be aten more

sever ely . She rec alled o n e incident whe re he r stepfather knoc ked the pe titioner into the corner of a fire place , rende ring him unconscious. Howeve r, m ed i ca l at t enti on was not soug ht for the petitioner. Ofte n there was not much food in the house

. I n addition to the phy sical abuse , Bill Hines sexually abused her from the ag e of nine. She and the petitioner beg an drinking at the ag e of e leven or twelve . They

both also smoked “dope,” and the p eti tioner sniffe d g lue. She admitted that she drank he avily

from the time she w as twelve or thirteen and had only rec ently stopped drinking . She also said that she wa s marrie d to Ernest Da niel for f ive y ear s, during which ti me he of ten beat her

sever ely

.

Fur long sa id that her birthday was F ebrua

ry 4 and that on Mar ch 3, 1985, the pe titioner had g iven her a grill as a belated birthday g ift. She said that, if she ha d testified at the origina l trial that she saw blood on the petit ioner on Marc h 3, 1985, when he arrived at her house, it was be cause she ha d b e e n d ri nk ing . A t th e po st- c on vic tio n p ro c e e din g , s he te sti fi e d tha t the pe tit ion e r ha d f a lle n in red c lay mud prior to arriving at her house and that is what she saw on his clothes. She said she wa s not int er v iewed by

the petitioner’s attorney s prior to the re sentenc ing, and the prosec utors had tricked he r

in to ta lk in g to th e m p r io r

to th e o r ig in a l t

r ia l b y te ll in g h e r

th e y w e r e th e p e ti ti o n e r ’s attorney s. She said she wa s drinking w hiskey and water whe n they

came to her house and asked questions. She thought they wer e tape-re cording their conversation, but they denied it. She said she later sa w a r ecor ding de vice a nd order ed the men out of her home

.

Fur long a cknowledg ed that she w as an a lcoholic. She did not reme mber testify ing that the petitioner had g otten into a strug g le at the motel and did not believe that she had te stified as the
t r a n s c r i p t o f t h e o r i g i n a l tr i a l r e f l e c t e d

. If t h e tr a n s c r i p tw e r e c o rr e c t , t h e n s h e w a s “ [ p ] r o b ab l y” ly ing in 1986 be cause of her drinking . She admitted that she had ne ver r eporte d any of the sexual abuse by her stepfathe r. I t was her understanding that her stepf ather had continued w ith his sex ual abuse of y oung g irls, inc luding her niece
, but she had never reported him to la w e n fo rc em ent of fi c ia ls.

L e e Da vid Mil e s te sti fi e d a t th e po st- c on vic tio n h e ari ng that he is a tr a ns se xua l a ndfo rm e rl y ha d b e e n th e pe tit ion e r’ s o lde st s ist e r, De bb ie Hi ne s. Ac c or din g to M ile s, the pe tit ion e r andB ill Hines we re ve ry

close until the petitioner was approximately ag e six and learned that Bill Hines wa s not his biol og ical father. At that time, the petit ioner became rese ntful toward Bill Hines. Miles saw Bill Hines hit the petitioner with his hands, a be lt, a tobacc o stick, and a c ar a ntenna. Hines beat the petitioner “f

our or f ive times a we ek.” Miles r elated one incident wh er e Bi l l Hi nes threw the petitioner, who c ould not swim, i nto a partially frozen pond as puni shment for throwing tires in the po nd . A n u nc le a ndMil e s h a d to g o in a ft e r the pe tit ioner, and Mi les pu lle d h im o ut. Mil e s a lso
te sti fi e d th a t th e ir

ste pf a the r g ot m a d a t Mi le s f

or br e akin g a n a nte nn a

of f h is c ar. He beat M ile s,-16-

Fur long, a nd the petitioner with the antenna to the point that he drew blood. Miles further testified that the petitioner onc e fe ll off a stac k of hay bales on top of a wag on. He hit his head on the g round and wa s bleeding , but Bill Hines re fused to take him to the d o ct o r. Miles also testified that the petitioner wa s very

protec tive of his siblings and of ten interve n ed d u ri ng Bill Hines’s attacks and abuse. B ill Hines also shot and killed the family dog and her

puppies in front of the c hildren.

Miles also testified that Bill Hines sex ually abused him four to five times a we ek fr om the ag e of six until the ag e of eig hteen and that he wa s a fe male at the time the se x ual abuse occur red. Mil e s a lso sa id tha t he wa s r ape d a t the a g e of sixte e n by B ill Hi ne s a ndthat H ine s trie d to fo rc e him to have se x with a friend of his, but Miles “foug ht with his friend for a while and then his friend g ot tired and sa id well I

am not g oing to do this, let’s just leave.”

Miles said that when the family moved to Bow ling Gr een, K entucky , the petitioner a nd Victoria beg an drinking heavily and the petitioner also beg an sniffing g lue and g asoline and smoking marijuana . The children often ate cer eal with w ater for all three meals bec ause the ir pare nts spent the ir mon e y on be e r andc ig are tte s. Ho we ve r, B ill Hi ne s bo ug ht fo odfo r B ob by Joe H ine s b e c a us e he wa s his biological son. Miles neve r saw B ill Hines strike Bobby J oe. Miles r eca lled visiti ng the pe tit ion e r at the Gr e e n Ri ve r B oy s Ca mp andthe pe tit ion e r c ri e d a ndbe g g e d th e ir mothe r t o ta

ke him ho me , b ut the ir ste pf

a the r re fu se d to le t he r. Af te r the ir mothe r a tte mpt e d s uic ide , s he le ft wi th o nly B ob by Joe a ndmov e d to I lli no is. Soo n th e re a ft e r, Mil e s le ft ho me a lso . T he ir

mothe r s ub se qu e ntl y returne d home af

ter lea rning that Miles had left. Miles testified t hat he was never contacted by the defe nse attorne y s, but he tried to contac t them to offer to pay their fe es.

Connie Westfall, a n investigator in the post-conviction defe nder’ s office
, said that she met wi th the Hi ne s f

a mil y a ndthat it

too k th e m a

“ g re a t dea l of time ” to ope n u p to he r. Ms. Wes tf a ll estimated that she wor

ked more than 1000 hours on the pe titioner’s ca se.

Dr. P amela Auble, a psy cholog ist specializing in clinical neur opsy cholog y , who had testified

a t th e r e s e n te n c in g , te s ti f ie d a ls o a t th e p o s t- c o n v ic ti o n h e ar in g , s a y in g s h e f ir s t e v a lu ated the pe tit ion e r i n M a y

19 89 . Af

te r me e tin g wi th the pe tit ion e r, sh e re vie we d his s oc ia l hi sto ry , a s w e ll

a s h is s c ho ol r e c or ds , p ri so n re c or ds
, a nd re c or ds fr om the Mid dle Te nn e sse e Me nta l H e a lth I ns titute wh ic h we re pr ov ide d by de fe ns e c ou ns e l. He r dia g no sis of the pe tit ion e r w a s p arano id p e rs on a lit y disorder a nd dy stonia, which is depre ssion.

Dr. Auble said that she did not have enoug h time prior to the re sentenc ing he aring to develop a trusting rela tionship with the petit ioner. She said she wa s only g iven a little over a

month to work

on the petitioner’s case but that, in g ener al, three to four months was optimal, depending on the ca se. I t would have been helpful to have had t he petiti oner evaluate d by an expert in che mical depe ndency and to have had more information about his social history . She acknow ledg ed that, at the time of

r e s e n t e n c i n g , s h e k n e w l i t t l e ab o u t t h e p e t i t i o n e r ’ s a l c o h o l ab u s e o r t h e s e x u a l ab u s e i n h i s f

a m i l y. She testified that Steve Stack “ didn’ t s ee m very confide nt in his own abilit ies,” a nd she believe d defe nse counse l did not have much under standing of the menta l health issues in the ca se.-17-

On cr oss-examination, Dr. Auble acknowledg ed that she knew the petitioner’s pa rents dra nk when they wer e not at w ork, suspected that he had suffe red phy sical abuse, and knew that he abused alcohol and dr

ug s. She said she was not awa re of the alcoholism in the petitioner’s f amily or of the extent of the abuse suff

ere d by the Hines c hildren. She believe d h er d i agnosis of the pe titioner’s emotional problems, of whic h she testified at the rese ntencing hearing, was corr ect. She sa id that she would liked to have ref err ed the pe titioner to an expert on the issue of a ddiction, such an e x pert be ing ne e de d to de te rm ine the e xten t a ndnatur e of the a lc oh oli sm a nddr

ug abu se a ndthe e ff

e c ts these ha d on the petitioner. She e x plained t h at t h e co m b ination of the history of addic tion in the peti t i o n er ’s familythat she now ha d knowledg e of, tog ether with his relatively

normal neuropsy cholog ical testing , raise d the issue that the petitioner ma y have a “che mical lack of
neurotra nsmitt er substanc e.” D r. Auble sa id that this was one ar ea of her testimony that would have been dif fer ent had she had additional time to work on the pe titioner’s ca se.

Dr. Ann Ma

rie Char vat, a soc iologist and a mi t i gat i o n specia list, also testi fied at the pe tit ion e r’ s r e se nte nc ing he a ri ng a nda g a in at th e po st- c on vic tio n he ari ng , th e fo rm e r b e ing the fi rs t capital c ase on w hich she had worke d. Her first involvement with the petitioner’s case was on May 10, 1989, “just a m at t er of day s” af ter re ceiving her PhD. Dr . Charvat inter viewed the petitioner,

seve ra l o f h i s family

members, a nd sever al of his frie nds prior to the re sentenc ing. She did not obtain any medical rec ords on any of the familymembers. The petitioner told Dr. Charvat about the phy sical abuse he and his sisters endure d, and she learned of the petitioner’s alcohol and drug abuse. Dr. Char vat was not told about the sexual a buse, but she suspected that it ha d occur red. She said that information about the se x ual abuse and the f act that the pe titioner tried to be his sisters’ prote ctor

wer e important for purposes of mitigation. Asked if she had overlooked anything in her evaluation of the petitioner, Dr. Charvat said that she had “fa iled to look at certain fac tors

. . . which i n clude family history
, medical recor ds. . . . I would have c ollected more rec ords. I believe that I

did identify that hi s b on d to so c ie ty

ha d s uf fe re d. I faile d to tie it t o th e c ri me . T he re are a nu mbe r o f thin g s to investigate that . . . I

hadn’t.”

Dr. Char vat testified, as she had done at rese ntencing
, reg arding the petitioner’s c onfinement at Gre en River B oy s Camp in Kentucky , wher e a me thod of beha vior modificat i on known as g rouping was used. T he g rouping s often be ca m e p h y sically and ver bally abusive. She e x plained that the bad be havior of one boy in the g roup caused the e ntire g roup to lose privileg es. Dr. Char vat testified at rese ntencing about one incident at Gre en River wher e the pe titioner and anothe r boy wer e pu sh e d in to s e wa g e

. She sa id that sh e wa s a wa re in 1 98 9, the tim e of

re se nte nc ing , th a t pr og ra ms using g rouping had extensive problems and tha t there w as literatur e av ai l ab l e on this issue. She explaine d th a t a lth o u g h th e a c ti v it ie s a n d p o te n ti a l ab u s e a t G r e e n Ri v e r , a s th e y r e late d to the p et i t i o n er , co u l d h av e b ee n ex tre m el y i m p o rt an t fo r m i t i gat i o n p u rp o s es , s h e d i d n o th av e e n o u gh time to further de velop those issues.

Dr. Char vat said that she still ag ree d with the sociolog ical conc lusions that were pr esente d to the jury at the re sentenc ing. She believed the wea kness was in the w ay

they wer e pre sented to the jury and said that “ there wer e many parts of [her te stimony ] t hat . . . were not we ll articulated, not-18-

clea r.” It was also h er o p i n i on that the petitioner’s ba ckg round wa s not adequately distinguished from that of a ny

other unruly

child.

Dr . Wil lia m K e nn e r, a

ps y c hiatr ist , te sti fi e d th a t th e pe tit ion e r suf fe re d f ro m po st- tr a umatic stress disorder

( “ PT SD ” )
, antisocial per sonality disorder, status post-he ad injury , and inhalant a buse. He sa id that the petitioner wa s sexuallyabused by both his stepfather and a mate rn al u n cl e and phy sically

abused by

his step fa t h er, opining that the abuse cause d the petitioner’s PTSD. The ph y sic a l a bu se inf lic te d u po n th e pe tit ion e r by his ste pf a the r inc lud e d h itt ing him in the he a d w ith

a tob a c c o s tic k, wh ipp ing him wi th c ar r a dio a nte nn a s, thr ow ing him int o a pon d altho ug h h e c ou ld not swim, and shooting the f amily dog and her

puppies in front of him and his si blings. The petitioner’s mother w as also a vic tim of Bill Hines’s abuse , and the petitioner often tried to protec t her. A t the ag e of e ight or nine, the petiti oner sustained a head i njury when he fell off a wa g on of ha y a ndwa s k no c ke d u nc on sc iou s. Th e pe tit ion e r d id no t re c e ive a ny me dic a l tr e a tme nt f

or thi s injury

.

Ex plaining how PTSD affe cts the brain, Dr. Kenne r said that a per son with PTS D re peats or

re play s tr a umatic e ve nts thr ou g ho ut l if e a ndthat PT SD c a n a lte r a pe rs on ’s c ha

ra c te r andc ha ng e his

o r h er b eh av i o r. Dr. Ke nner te stified that in the petitioner, PTSD cre ated a para noid quality . Dr. K e n n e r o p in e d th a t th e h e a d in ju r ie s th e p e ti ti o n e r s u f

f e r e d th r o u g h o u t h is li f

e c o u ldhave c aused organ i c p er s o nality

sy ndrome, whic h made him eve n more volatile a nd difficult to manag e. The petitioner’s a

buse of inhala nts such as g lue a n d g asoline also ca used dama g e to his brain. Dr

. Kenne r conc luded that the petitioner’ s choosing a woman f or his victim was inconsistent with the petitioner’s pe rsonal history , as there was no indica tion that he had har d fee lings towa rd women.

On cr oss-examination, Dr. Kenne r acknowledg ed that the petitioner had bee n in and out of jail since the a g e of f

ifteen. H e further acknowledg ed that a re port prepa red by the Middle Tenne ssee Hea lth I nstitut e and the Har riet Comb Mental Health Center indica ted that the petitioner e x perie nced dif fi c ult y in r e lat io ns hi ps wi th w ome n, a s th e re su lt o f p ro ble ms w ith g ir lf ri e nd s a ndfa mil y interfe renc e, exhibi ted a preoc cupation with thoug hts of violence, and display ed extreme pre judice
t o wa rd Af

rica n-Americans. Additionally , a re port prepa red by the Tenne ssee De partment of Correc tion s t at ed t h at t h e p et i t i o n er , o n ce co n fi n ed o n d ea t h ro w, ac k n o wl ed ged t o s ec u rity personne l that he hate d both women and Af rica n-Americans. Dr . Kenne r t estified that althoug h the petitioner

sa id tha t he ha te d w ome n, he did no t be lie ve him be c a us e his be ha vio r i nd ic a te d d if fe re ntl y . H e sa id he had muc h more information conce rning the petitioner than Dr. C harvat did prior to preparing her report f or the rese ntencing

. He believed that Dr. Char vat should have inter viewed the petitioner’s sisters and mother in orde r to g et a true picture of “how ba d things we re f

or [the petitioner] grow ing up.”

Dr . M ur

ry Wilto n Sm ith , a spe c ia lis t in a dd ic tio n med ic ine , tes tif ie d tha t th e pe tit ion e r i s a Ty pe I I a lc oh oli c. He e xpla ine d th a t T ype I I a lc oh oli sm, a

prima ry me dic a l il lne ss b a se d in br a in chemistry , is inherited and involves ra pid early onset of alcoholism, usually betwee n the age s of nine

a ndtw e lve , a ndis a sso c ia te d w ith a nti so c ia l be ha vior and e arl y le g a l tr ou ble . D r. Smith a lso
te s ti f ie d th a t th e p e ti ti o n e r h a d u s e d in h a lan t s o lv e n ts a n d ma r ij u a n a

. H e w a s a w ar e of the-19-

p e t i t i o n e r ’ s l o w l e v e l s o f s e r o t o n i n , w h i c h i s a s s o c i a t e d w i t h v i o l e n tb e h a v i o r a n d T yp e II alcoholism. He said that curr ent trea tment f or Ty pe I I alcoholism, which wa s not available in 1989, consisted of a lcohol and drug treatment, int ensive phy siotherapy with a counse lor, and medic ation
t o i m p ro v e t h e s er o t o n i n l ev el

. On re cr o s s ex am i n at i o n , Dr

. S m i t h a c k n o wl ed ged t h at al t h o u gh medications to incre ase se rotonin levels were available in 1986, there was not a routine to monitor. He a lso stated that a cha

rac teristic of Ty

pe I I alcoholics is a lack of m otivation to follow inst ructions

or a sc hedule.

Dr. Paul Rossby
, an expert in molec ular neurobiolog y and the study of serotonin, t est ified that, as a molec ular biolog is t , h e studies the che mistry of the brain and the biolog ical basis of behavior . Acc ording to Dr. Rossby , serotonin blocks pain a nd orche strates i n h i b i t i o n within the brain. Dr . Rossbytestified that re sear ch of se rotonin dated ba ck to at l ea s t the 1970s. He f urther sai d th a t th e r e w o u ld h a v e b e e n a “ tr e me n d o u s a mo u n t” o f li te r a tu r e a v a il ab le o n s e r o to n in at the time of the petitioner’ s rese ntencing in 1989 and a “g reat de al” of literature available at the time of the pet iti on e r’ s tria l in 19 86 . H e sa id that lo w l e ve ls o f s e ro ton in h a ve be e n a sso c ia te d w ith impulsi ve beha vior, but none of the studies ha s indicated that it ca uses violence

.

Dr . Ro ssb y

ha d a sp ina l ta p p e rf orme d o n th e pe tit ion e r t o d ete rm in e his se ro ton in l e ve ls, which we re “ at the extreme low leve l” of the normal male population. He opine d that the petitioner’s serotonin levels, couple d with his Type I I alcoholism, resulted in the pe titioner’s being

or g a nic a lly

imp a ir e d a ndsa id t

ha t th e pe tit ion e r d oe s n ot h a ve the bio log ic a l c apa c ity to c on tr ol h is imp uls ive be ha vio r. Dr . Ross by sa id that in a pe rs on wi th low le ve ls of se ro ton in, on c e a n impu lse is trigg ere d, there is no abilityto control the impulse. He a cknowledg ed that he did not testify on the iss ue of

se ro ton in l e ve ls u nti l 19 99 . H e fi rs t w or ke d o n a c a se inv olv ing a se ro ton in de fe ns e in

app ro xima te ly

19 92 , a ndwa s n ot a wa

re of any ex pert who ha d te sti fi e d o n th e iss ue of se ro ton in prior to the time he wa s involved with his first case.

Dr. He nry

Cellini, an educa tional psy cholog i s t wh o was off ere d as a r ebuttal witness on be ha lf of the Sta te , te sti fi e d th a t se roto ni n r e se arc h b e g a n in the19 70 s b ut h a d o nly be e n f ull y develope d in the last fiftee n to twenty y ear s. Wit h reg ard to the petitioner’s case , Dr. Cellini testified that th e pr a c tic a l app lic a tio n of s e ro ton in l e ve ls t o b e ha vio r w a s in its “ inf a nc y ” in the mid -1 98 0s

. He s ai d that rese arc h indicates that the two primary fac tors of antisocial pe rsonality disorder a

re impulsi ve ag g ression and psy chopathic te ndencie s or thinking.

Tw o w itn e sse s were pres e nte d a s to the c la ims re g ard ing the Gr e e n Ri ve r B oy s Ca mp i n Ke ntu c ky a nd its a lle g e d ef fe c ts on the pe tit ion e r. Ta mmy Ke nn e dy , a n in ve sti g a tor wi th the po stconviction def

ender ’s offic e, said that she interviewed f ormer r esidents and staff members. The fo rm e r r e sid e nts tol d h e r tha t, w he n th e y arrive d a t c a mp, the y

we re imm e diate ly su bjec te d to g ro up ing , w hic h c on sis te d o f s e ve ra l bo y s su rr ou nd ing the ne w r e sid e nt andph y sic a lly a ndve rb a lly abusing him. She said that the former res i d ents told her at times they had sew ag e deta il, which involved two boy s holding a resident b y t h e l egs and dumping him into t he sew ag e. The y wer e forc ed to s c ru b th e p a v e me n t u n ti l th e ir b ru s h e s w e r e g o n e a n d th e ir h a n d s w e r e b li s te r ed. A juvenile spec ialist who had visited Gree n River advised Ms. Kenne dy that schooling was minimal-20-

a nd that the re we re re po rt s o f p hy sic a l, s e xua l, andve rb a l a bu se of the re sid e nts . M s. Ke nn e dy sa id that sever al other de ath row inmate s were former residents of G ree n River.

Dr. Da vid Richart, an e x pert in the ope ration of the juvenile justice sy stem and re sidential
tr e a tme nt f

a c ili tie s in Ke ntu c ky , te sti fi e d th a t he ha d in ve sti g a te d G re e n Ri ve r i n conn e c tio n w ith his positi on as the Executive Direc tor of Kentucky Youth Advocates, I nc. He sa id that the theory behind cr eating the juvenile c amps was to take y outhful offe nders out of la rg e, tra ining sc hool fac il i t i es and plac e them in smaller, c ommunity -like setting s where they would both work and

r e c e i v e t h e r ap y c o n s i s t i n g o f g u i d e d g r o u p i n t e r a c t i o n , p o s i t i v e p e e r c u l t u r e , a n d r e a l i t y t h e r ap y. These the ories of tre atment were ba sed on the fa ct that juveniles who c ommitt ed crimes did so for peer -re lated re asons. The pur pose of the the rapy

was “ to turn something negative into something positive.” Ho we v er , problems ar ose whe n the state re duced the number of e mploy ees, w hich

re su lte d in the sta ff a llo wi ng the re sid e nts to dis c ipl ine the mse lve s. Dr . Ri c ha rt ’s inv e sti g a tio n a lso

reve aled that the sta ff ha d not rec eived the essential tra ining r equire d for this type of “ sophisticated
treatment.”

Dr . Ri c ha rt te sti fi e d th a t ne w r e sid e nts a t G re e n Rive r we re fi rs t gr e e te d by a g ro up of fi ft y to six ty boy s who enc ircled the new resident, scre aming at and intimi dating him. Bec ause the g roup would surround the ne w re sident so tightly that the staff

co u l d n o t s ee “what was g oing on be low shoulder heig ht,” the new resident wa s often phy sically assaulted as well. Dr. Richart explained that residents a t Gree n River wer e subjec ted to “g rouping ” for simple r easons, such as not having a g ood opinion of themselves or taking an extra pac ket of sug ar at lunch. After becoming convince d that the re sidents were being harme d “as a re s u l t of using these ve ry controve rsial emotionally and ps y c ho log ic a lly ha

ra ssi ng te c hn iqu e s, ” Dr . Ri c ha rt be c a me c on c e rn e d a

bo ut the y ou ths ’ psy cholog ical state and the damag e that might occur

. He r eca lled having to transport some y ouths
to m e nta l in sti tut ion s be c a us e the y e xpe ri e nc e d “ ps y c ho tic br e aks ” wh ile a t c a mp. Dr . Ri c ha rt sa id that Green Riv e r h a d c omp ou nd e d th e y ou ths ’ f e e lin g s o f i so la tio n a ndha d d on e no thi ng to

c on tr ibu te to pr o- so c ia l beh a vio r, a nd he wa s not sur prise d to lea

rn that ma ny

of the m su bs e qu e ntl y went to prison.

I n Dr. Richart’s opinion, the petitioner’s six and one-half months at Green River intensifie d his c ri min a l t end enci e s, e xac e rb a te d h is a nti so c ia l te nd e nc ie s, a ndma de him se e the wo rl d a s a hostile pla ce. Dr. Richart also believed that the petitioner was completely inappropriat e f or g rouping , “bec ause he just wasn’t the kind of per son that wanted to talk a bout his family .” Refe rring
to the tr e a tme nt at G re e n Ri ve r a s “ps y c ho log ic a l tor tur e ,” Dr . Ric ha rt op ine d th a t it

wa s “ pr ob ably the worst experienc e of [the petitioner’s] life.”

On cross-e x amination, Dr. Richart acknow ledg ed that some juveniles may have be nefitted from Gre en River and that residents, including the petitioner who had a substan ce ab u s e p ro blem prior to g oing to Gr een River
, would not have ha d acc ess to drug s or alcohol while the re. D r. Richart

re a d in to e vid e nc e so me of the sta ff ’s re po rt s o n th e pe tit ion e r, wh ic h c haracter iz ed him a s e a sil y ag itated and ha ving a

bad temper

but also as a capable person, a g ood worke r, and “ fairly consistent in his supportive leader ship in the gr oup.”-21-

Dr. Chris Sperry , the Chief Medic al Examiner for the State of Geor g ia, testified conc erning the nu mbe r a nd loc a tio n of sta b wo un ds fo un d o n th e vic tim . H e ha d r e vie we d th e vic tim ’s a uto ps y

r e p o r t , p h o t o g r ap h s o f

t h e c r i m e s c e n e , a n d w i t n e s s r e p o r t s o f M ar y S i z e m o r e a n d S h e r i f f W e ak l e y. He t es t i fi ed t h at there wer e pools of blood bene ath the air conditioning unit and a

spot where the vic tim ’s bo dy wa s fou nd , b ut n on e be tw e e n th os e tw o a re a s. Du e to the la c k o f b loo d in the ro om, Dr. Sperry

conclude d that the s t ru ggl e wa s “very quick” a nd may

have oc curr ed in less than one

m i n u t e

. H e a l s o s t a t e d t h a t a l l o f t h e w o u n d s , e x c e p t t h e v a g i n a l w o u n d
, w e r e i n f l i c t e d v e r y r ap i d l y. He opined that the victim r emained conscious for about fiftee n to thirtyseconds f ollowing the sta

b to the heart. He explained that once she lost consciousness, she f elt no pain; it wa s as if she we re

u n d er an es t hesia. As a

result of the w ounds to her hea rt, it was not possible for her to have be en conscious for

three or four

minutes, contrary

to Dr. Ha rlan’s te stimony

. Dr. Sperry further estimated that the victim would have be en dea d, her heart w ould ha ve stopped bea ting, be tween thr ee and four minutes afte r she sustained t he heart wounds. On cr oss-examination, Dr. Sperry acknow ledg ed that the sta b to the he art

c ou ld h a ve oc c ur

re d la st, a nd , if so , the vic tim c ou ld h a ve be e n c on sc iou s u nti l that time.

Dr

. Spe rry a lso te sti fi e d that it wa s po ssi ble that the a ssaila nt h a d b loo d tr a ns fe rr e d o nto his or her person be cause the victim had blood on the i nside of her leg s, and it appea red tha t someone with bloody

hands had g ripped her leg s. I t a lso a ppear ed that the victim had been dr ag g ed to the ar ea wher e her

body was found, w hich would also have cause d a t ra n s fe r o f bl ood from her to the assailant. He s ai d t h at b lood is difficult to wash out of clothing and that if someone committed a stabbing , washe d off the blood, a nd then immediately g ot into a vehicle, ther e would usually be
trac es of blood tra nsfer

red to the ve hicle. Dr . Sperry testified t hat t he wound to the victim’s vagina

occur red at o r af

t er the time of death. He said that the infliction of this type of w ound was “ an indicator of some kind of mental problem de aling with . . . women. Hatred or ang er towa rds

wo me n. ” He a lso sa id tha t th is t ype of inj ury wa s a “ ve ry sp e c if

ic e xpre ssi on of po we r of a fe ma le victim.”

Dr . Ch arl e s W. H arl a n, wh o p e rf orme d th e vi cti m’ s a uto ps y , te sti fi e d th a t he str on g ly disag ree d with Dr. Sperry ’s opinion that the victim’s attack a nd injuries occur red i n l ess t han one minute. He said that the vi ctim lost 950 “cc ’s” of blood into her che st. He explained that the hea rt pu mps be tw e e n 25 a nd30 “ c c ’s ” pe r h e art be a t “ un de r an o pti mum

situatio n, ” bu t th e str ok e vo lum e would be “g radua lly

diminis hing” beca

use of blood squee zing the victim’s hea rt, as the result of the wound, and the l o s s o f b l ood itself. He f urther te stified that an individual is usually conscious approximately

80% of the time that it t akes to bleed to death. He believe d that it would have take n considera bly longe r than thirty seconds to a minute f or the victim to bleed to death, opining that “she probably lived a mini m u m o f fo ur to five minutes and that she would have been c onscious for 80 perc ent of that time. It’s possible that she lived long er than that, up to ten t o fiftee n minutes, but at least a minimum of four to five minutes.” I n his opinion, the vi ctim’s vag inal wound was inflicte d
at or ne ar the time of her death, and there was no way to know for c erta in whether she wa s conscious at the time it was inflicted. D r. Ha rlan a cknowledg ed that Dr . Sperry had testified in contr adiction to his testim ony

in nine case s, including the petitioner’s c ase.-22-

The proof

at the post-convic tion he ar i n g on the issue of the jury venire consisted of five witnesses and a

report prepa

red by a statistician, Dr. James M. O’Reilly , which conc luded that there

wa s a n u nd e rr e pr e se ntatio n o f w ome n o n th e jury ve nir e fo r C heath a m Co un ty fo r y e ars 19 79 to 1990. During the pertinent y ear s, the fema le population of Cheatha m County acc ounted for 50.6 to 5 0. 7% of

the tot a l po pu la tio n. B y c on tr a st, the pe rc e nta g e of wo me n in the Che a tham Co un ty venire was be tween 10 and 22%.

Connie Westfall, of t he post -convic tion defe nder’ s office
, testified t hat she ha d investigated
t h e i s s u e o f t h e c o m p o s i t i o n o f t h e j u ryp o o l at t h e p et i t i o n er ’s 1 9 8 6 t ri al as we l l as h i s re s en t en ci n g. At the tim e of

he r i nv e sti g a tio n, on ly

on e of the three ju ry

c omm iss ion e rs fo r the re le va nt t ime period, C.E. Dunn, wa s able to mee t with her. Dorris W inters, one of the commissio n ers, wa s dece ased; a n d t h e o t h er , Martha A dkisson, was confine d to a nursing home and una ble to be interviewe d beca

use of he r mental c ondition. Dunn provided Westfall with an aff idavit because he had suff ere d a stroke and was unable to tr avel to c ourt. Ba sically
, his a ffidavit stated that they used the voter r eg istration list as the e x clusive sourc e of obta ining pe ople for the purpose of fi l l i n g the jury box , and the jury commissioners met every two y ear s to f ill the jury

box . Ms. Westfall testified that she also intervie wed De lores Moulton, L loy d Har ris, the t ax assessor, and trustees. She said that when she first spoke with Mr. Ha rris, he r eca l l ed usi ng the voter r eg istration list and later

reme mbere d that they

may have use d property

lists and the telephone book.

Dorothy J ones, the Cheatham CountyTrustee
, said that she had been the truste e for six y ear s at the time of the post-c onviction hearing and, prior to her service as trustee , her husba nd was the trustee. She had worke d in the trustee’ s office since 1982. During he r y ear s of employ ment in that office
, n o o n e eve r had be en allowe d to remove the tax roll books from the off ice. She acknow ledg ed, howe ver, tha t the tax records we re public r ecor ds and any one could c ome into the of fi c e a ndre vie w the m.

Be tty Ba l t h rop, the Cheatham CountyProperty Assessor, said that she had occ upied that position si nce 1988 and had wor ked in the off

ice since 1978. Ms. B althrop testified that since he r

e mpl oy me nt i n th e a sse sso r’ s o ff ic e , n o o ne ha d ph y sic a lly re mov e d th e ta x re c or ds fo r the pu rp os e of c op y ing the m. S he a c kn ow le dg e d th a t th e ta x re c or ds we repu bli c reco rds whic h e xist in Nashville and e lsewher e in the state.

Delore s Moulton was the Cheatham County C i rc u i t Court Cl erk f

rom 1990 to 1998. Previously , she ser ved as the deputy cler k, beg inning in 1972. He r fa t her, Lloy d Har ris, was the Cheatham County

Circuit Court C l er k p ri o r to her tenur e. Ms. Moulton testified that the jury commissioners met every two y ear s to charg e the jury box and that the voter

reg istration list was their major sourc e of obta ining na mes bec ause the y had more acc ess to it. She stated that they started out “ra ndomly
, may be, eve ry six teenth one or

twentieth one down and wr[o] te the name and addre ss on a little jury

ticket.” She e x plained that ea ch of the jury commissioners took a diffe rent section of the list and wor ked i n d ependently . Whil e they wer e cha rg ing the box , the only

names taken out we re the names of those known to be dece ased. She further explained that at the end of the two y ear s, the names in the box were not removed, but ne w names w ere added.-23-

After t h e jury box was c harg ed, they

g ather ed the jury

list as needed. E ither a c hild under the age of t en or Ms. Moulton, wearing a blindfold, picked the names out of the box. Ms. Moult on testified that the jury commissioners sat tog ether while compiling the names. Na mes of dec ease d pe rs on s w e re dis c ard e d. I f sc ho ol wa s in ses sio n, sc ho olt e a c he rs ’ na me s we re se t asi de . Stud e nts

awa y at colleg e we re omitted fr om the l i st. Also, at times, if they knew a woman had just had a baby , theyr e mo v e d h e r n a me

. T h e y c o mp il e d a li s t o f 1 5 0 o r mo r e n a me s , w h ic h ma d e up the sheriff ’s venire

. The sheriff summ oned these persons to court where eac h was a ssigne d a number

. Th e jud g e the n d re w t we lve nu mbe rs ou t of a box, an d thos e pe rs on s comprise d the g randjury . M s. Moulton testified that Dorris Weakley was the sheriff in 1986 and 1989. During his administration, only t h i rt y t o fifty

prospec tive jurors out of 150 ac tually appea red in c ourt as summoned, but the perc entag es incre ased dr astically under the next s heriff ’s administration.

On c ro ss- e xami na tio n, Ms. Mo ult on te sti fi e d th a t, i n a dd iti on to the vo te r r e g ist ratio n li st, they also u s ed t h e telephone book a nd tax records to ra ndomly selec t names, althoug h the voter reg istration list was the main source

. She believed the y followed the Te nnessee statutes in gathering and pre paring the jury

venire . She said the commissioners “ne ver discriminated any one bec ause of

rac e, color , or nationality

or m en or women.” She rec alled that Martha Adkisson complained if she thought too ma ny women wer e being put on the list; however, she believed Ms. Adkisson’s r eason for doing so was “to e qual out . . . the men and the women.”

L loy d Har

ris, Delore s Moulton’s father, served as the Cheatha m CountyCircuit Court Cl erk prior to Ms. Moulton, occupy ing the position for twenty -four y ear s. He testified that the three jury commissioners met every two to thr ee months to selec t names, and he re called Junior Dozier, the tax assessor, pr oviding him wit h names from the t ax lists. He used the t elephone book for this purpose, althoug h most of the names we re taken fr om the voter r egi s t ration l ist. He testified that Martha Adkisson was a sc hoolteache r and sometimes set a side the names of t eac hers because
, at t hat time, there was a shortag e of substitut e teacher s. He also rec alled that, a f ew times during harve st season, a fa rmer’ s name wa s set aside, and, during the 1970s and 1980s, it was easy for women with y oung children to g et out of ser ving on the j ury , but that chang ed through the y ear s. He stated that the jury bo x wa s c ha

rg e d a bo ut e ve ry

tw o y e ars

. He te sti fi e d th a t th e y we nt d ow n th e vo te r r e g ist ratio n li st,

wr ote do wn e ve ry tw e nti e th or tw e nty -f if th na me , pla c e d it in the bo x, a ndtr ie d n ot t o d isc ri min a te ag ainst any

class of pote ntial jurors. Har ris said that the voter reg istration list, the tax list provided by Dozier, and the te lephone books we re the only source s used in the jury s el ection at the time of the petitioner’s 1986 tria l and in 1989.

II. AN AL YSI S

I n his arg ument on appea l, the petitioner has se t out five claims, three asserting that c ounsel

we re ine ff

e c t i v e a t h i s 1 9 8 6 tr i a l
, h i s 1 9 8 9 r e s e n t e n c i n g h e ar i n g , a n d o n t h e d i r e c t ap p e a l o f his conviction, one asserting that he was prejudice d beca use of the e x clusion of women f rom the jury panel, a nd one cla iming that imposition of the death pena lty violates various of his rig hts affor ded by the fe dera l and state c onstitut ions.-24- A. Standard of

Review

I n order to determine the competenc e of counsel, Tennessee courts have applied standa rds develope d in fede ral case law. See S tate v. Tay lor, 968 S.W .2d 900, 905 (Tenn. Crim. App. 1997) (n oti ng that th e sa me sta nd ardfo r d e te rm ini ng ine ff e c tiv e a ssi sta nc e of

c ou ns e l th at is app lie d in fede ral c ases a lso applies in Tennesse e). The United States Supreme Court a rticulated the standar d in S tr ic kla ndv. Was hin g ton , 4 66 U. S. 6 68 , 1 04 S. Ct. 2 05 2, 80 L . E d. 2d67 4 ( 19 84 ), wh ic h is widely acc epted a s the appropr

iate standa

rd fo r all claims of a convicte d petitioner that counse l’s assistance was defec tive. The standard i s firmly g rounded in the belief that counsel play s a role that is “critica l to the ability of t he adversarial sy stem to produce just results.” I d. at 685, 104 S . Ct. at 20 63 . T he Str ic kla ndsta nd ardis a tw o- pr on g te st:

First, the de fenda nt must s h ow that counse l’s perf ormanc e wa s defic ient. This require s showing that counsel made err ors so serious that counsel wa s not functi o n i ng as the “ counsel” g uara nteed the de fe nd ant b y

the Sixth A me nd me nt. Se c on d, the de fe nd a nt m us t sh ow that th e de fi c ie nt p e rf orma nc e pr e

jud ic e d th e de fe ns e . T his require s showing that counsel’s error s wer e so serious as to deprive the def endant of a fa ir trial, a tria l whose re sult is reliable.

I d. at 687, 104 S. Ct. at 2064. The Strickland Court further expl ai n ed t h e meaning of “de ficient p e r f o r m a n c e ” i n t h e f

i r s tp r o n g o f

t h e t e s ti n t h e f

o l l o w i n g w a y:

I n any case prese nting a n ineffe ctiveness c laim, the perf ormanc e inq uiry mu st be wh e the r c ou ns e l’ s a ssi sta nc e wa s r e a so na ble considering all t h e ci rc u m stance s. . . . No particula r set of de tailed rules for coun s el ’s conduc t can sa tisfactorily take a ccount of

the varie ty of c i rc u m s t ance s fac ed by defe nse counse l or the ra ng e of leg itimate decisions reg arding ho w b est to repr esent a criminal de fe nd a nt.

I d. a t 68 8- 89 , 1 04 S. Ct . a t 20 65

. Th e pe tit ion e r mus t e sta bli sh “ that c ou ns e l’ s r e pr e se ntatio n f e ll below an obje ctive standa rd of r easona

bleness under

preva iling prof

essi o n a l n o rms

. ” House v. State, 44 S.W .3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996))

.

As for the prejudice prong of the test, the Strickland Court stated: “The defe ndant must show that there is a rea sonable proba bility that, but for counse l’s unprofe ssional error s, the result of the pr oc e e din g wo uldha ve b een diff e re nt. A r e a so na

ble pr ob abil ity

is a pr ob abil ity

su ff ic ie nt t o undermine c onfidenc e in the outcome.” 466 U.S. at 694, 104 S. Ct . at 2068; see als o Overton v. Sta te , 8 74 S.W. 2d6, 11 (T e nn . 1 99 4) (c on c lud ing that pe tit ion e r f a ile d to e sta

bli sh that “ the re is a

rea sonable proba

bilitythat, but for counse l’s err ors, t h eoutcome of the proce eding s would have be en differ ent”)

.-25-

Cou rt s n e e d n ot a

pp ro a c h th e Str ic klandte st i n a sp e c if ic or de r o r e ve n “ a dd re ss b oth components of the inquiry if the def endant make s an insufficie nt showing on one .” 466 U.S. at 697, 104 S. Ct. at 2069; se e also Goad, 938 S.W .2d at 370 (stating that “fa ilure to prove e ither def iciency or pre judice provide s a suffic ient basis to deny relief on the ineff

ective a ssistance c laim”).

By statute in Tenne ssee, the petitioner at a post -convic tion relief he aring has the burde n of proving t he alleg ations of fa ct by clea r and c onvincing evidenc e. See T enn. Code Ann. § 40- 30- 210(f) (1997). A pe t i t i o n b as ed on ineffe ctive assistanc e of c ounsel is a sing le g round for relief
, there fore all fac tual alleg atio n s m u s t be pre sented in one c laim. See Tenn. Code A nn. § 40-30- 206(d) ( 1997).

The procedur e which we follow in our review was explained in detail byour supre me court in State v. Honey cutt, 54 S.W .3d 762, 766-67 (Te nn. 2001):

The iss u e wh ether

a petitioner ha s been de nied the ef fec tive assistance of counse l is a mix ed question of law and fa ct. S t ate v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) . A trial court's f indings of fac t a re entitled to substantial defe renc e on appea l unle ss the evidenc e preponde rate s ag ainst those finding s. See He nley v

. State, 960 S.W. 2d57 2, 57 9 ( Te nn . 1 99 7)

. Un de r this sta nd ard , a pp e llate c ou rt s do not substit ute their own infe ren ce s for those dr awn by the trial court, a nd questions concern i n g the cr edibilityof the witnesse s, the weigh t and value to be g iven their testimony , and the f actua l issues

r a i s e d b y t h e e v i d e n c e ar e t o b e r e s o l v e d b y t h e tr i a l j u d g e

. H e n l e y, 960 S.W

. 2 d at 579. Howeve r, this Court reviews de novo the application of la w to those fac tual finding s to determine whe ther counsel' s perf

ormanc e wa s deficie nt or whe ther the de fenda nt was prejudice d by

that defic iency . Thus, when e valuating a cla im of i n ef fe ct i v e a s s i s t an ce o f c o u n s el
, we re v i ew t h e tr i al co u rt 's fi n d i n gs of fact under a de novo sta ndard, a ccompa nied by a pre sumption t hat the finding s are corr ect unless the pr epo n d era nce of the evidenc e sug g ests otherwise, w hile the trial court's co nclusions of law a re

re v i ew ed de novo with no pre sumption of corre ctness. F ields v. State, 40 S.W .3d 450, 457-58 (Te nn. 2001).

B. Inef fective Assistance of Cou nsel at 1986 Trial

Th e pe tit ion e r a lle g e s th a t tria l c ou ns e l w e re ine ff e c tiv e in f a ili ng to i n t e rvie w a nde ff

e c tiv e ly

cross-e x amine Ke n J ones, to object to Sheriff W eakle y ’s participating in the voir dire of prospec tive jurors, t o d i s co v er impeachme nt evidence , and we re ine ffe ctive as w ell beca use of their

lack of

e xpe ri e nc e a ndre so ur c e s. We w ill re vie w the se c la ims

.-26- 1. F ailure to Inter view an d Ef fectively Cr oss-Exam ine Ke n Jones

The pe titioner arg ues that trial counsel sanctioned the perjure d testimonyof Ke n J ones at the 19 86 tr ia l a ndfa ile d, a t th e re qu e st o f S he ri ff Wea kle y , to e ff

ect ive ly c ro ss- e xami ne Jone s, the se

a mou nti ng to a n a c tua l c on fl ic t of int e re st f or the tr ia l a tto rn e y s. As we ha ve set ou t , Ken Jones

a c kn ow le dg e d a t hi s d e po sit ion in 1 99 9 that he wa s a t th e Ce B on Mo te l on the da y of the mur de r t o rent a room to be with his pa

ramour. Howeve r, at the petitioner’s 1986 trial, J ones had te stified that he wa s at the motel bec ause he neede d to use the restroom. Trial counsel Stack ac knowledg ed that he knew J ones wa s at the motel to rent a r oom with his paramour, but di d not cross-e x amine him on this fact. Sheriff

Weakley did not want J ones to be e mbarra ssed and had assure d trial counsel that J ones knew nothing a

bout the murder.

T o s u p p o r t h is ar g u me n ts a s to c o u n s e l’ s li mi ti n g h is c r o s s

- e xa mi n a ti o n o f Jo nes, the petitioner re lies upon State v. Thompson, 768 S.W .2d 239 (Tenn. 1989)
, in w hich our supre me court

e xpla ine d th e br oa d s c op e of the ri g ht t o c ou ns e l:

Plainly , an ac cused is entitl ed to zealous repr esenta tion by an attorney unfetter ed by a conflicting interest. To establish a denia l of the six th amendment rig ht to counsel, it is sufficient to show that an
actua l conflict existed. I f an attorney actively repr esents conf

licting int e re sts , n o a na ly sis of

pr e jud ic e is n e c e ssa

ry ; it is pr e su me d tha t hi s divided interests adve rsely aff ecte d his repre sentation.

I d. at 245 (c itations omi tted). T h e p e ti ti o n e r ar g u es that t ri al counsel had an ac tual conflict of int e re st a nd , the re fo re , the se c on d pro ng of the Str ic klandte st, re qu ir ing a sh ow ing of

pr e jud ic e , is

e lim inate d, the pe tit ion er con ten din g that “ a n a c tua l c on fl ic t or a n a pp are nt c on fl ic t may

e xist anytime a lawy er c annot exercise h is or her inde pendent pr ofessional judg ment fre e of ‘compromising influence s and loy alties.’” State v. Culbre ath, 30 S

. W

. 3 d 309, 315 (Tenn. 2000) (citing State v. Tate, 925 S.W .2d 548, 554 (Tenn. Crim. App. 1995)). Additionally , the petitioner arg ues that “[w]hen the fairness of a trial is compromised by an a ct u al co n fl i ct of intere st, the conclusion that finding that trial counsel’s pe rformance , pe r se , deprive d the def endant to his rig ht to a fa ir trial is not subject to ‘harmless e rror analy sis.’”

As to these ar g uments, the State responds that any ag ree ment betwee n Sheriff Weakley and trial couns el not to question Ken Jones about his reason for being at the CeB on Motel did not constitute an ac tual conflict a nd, thus, cannot wa rra nt a pre sumption of prejudice. T he petitioner dis pu te s th is a na ly sis , c iti ng Rul e 1. 7( b) of the Rul e s o f P ro fe ssi on a l Co nd uc t w hic h p ro vid e s:
A lawy er sha ll no t repre sent a c lient if the repr esenta tion of that client may be materia lly limit ed by

the lawy er’ s responsibilities
to ano the r c lie nt or to a

thi rdpe rs on , o r b y

the la wy e r’ s o wn int e re sts , un le ss:A s the p e tit io n e r n o te s in h is b rie f, this ru le is a p a rt o f the n e w R u le s o f P ro fes sio n a l C o n d u c t t h a t ca m e into 1

e ff e c t i n M a rc h 2 0 0 3

.
-27-

(1) The lawy er reasona

bly believes the repr esenta tion will not be adve rsely

aff ecte d; and (2) The client conse nts in writing af ter c onsultation[ .]

Te nn . Su p. Ct. R. 8, RPC 1. 7( b) (2 00 3)

. Th e pe tit ion e r no te s that th e dis c ipl ina ry ru le that w a s in 1

e ff e c t in 19 86 pr ov ide d that “ [a] la wy e r sh a ll de c lin e pr of fe re d e mpl oyme nt

. . . if

it wou ld li kely involve the lawy er r epre senting differing inter ests.” He respon d s t o t h e S tate’s c ontention that pr e jud ic e wa s n ot s ho wnby

arg uin g that a ll h e ha s to do is “u nd e rm ine c on fi de nc e in the ou tc ome of the tr i al .” See Ky les v. Whit ley , 514 U.S. 419, 434, 115 S. C t. 1555, 1566, 131 L . Ed. 2d 490 (1995). To support his arg ument in this reg ard, the petitioner cites Jones v. Kentucky , 97 F.2d 335 (6th Cir. 1938), wher e the c ourt determined that the conviction of the defe ndant was ba sed in part

on pe rj ury

a s f oll ow s:

that “the fundame ntal conce ptions of justice which lie at the base of our civil and political ins t i t utions” must with equal abhorre nce condemn a s a trave sty a convic tion upon perjured te stimonyif later, but fortunately

not t o o l at e, it s falsene ss is discovered, a nd that the state in the one c ase a s in the other is require d to affor d a cor rec tive jud ic ia l pr oc e ss t o r e me dy the a lle g e d w ro ng , if

c on sti tut ion a l r ig hts

are not to be impaired.

I d. at 338.

This cou rt h as ex plained the showing which must be made to establish that counsel had a

c on fl ic t of

int e re st:

An ac tual conflict of inter est is usually define d in the context of one attorney repr esenting two or more pa rtie s w ith diver g ent intere sts. An

a c tua l c on fl ic t of

int e res t oc c ur s w he n " re g ardfo r o ne du ty te nd s to lead to [the] di sreg ard of

another ." State v. Re ddick, 230 Neb. 218, 222, 430 N.W.2d 542, 545 (1988); see G ardne r v. Na shville Housing Authority , 514 F.2d 38 ( 6th Cir. 1975). I n For d v. For d

, the court decla red a confli ct o f interest whe n an " attorney was plac ed in a position of divided loy alties." 749 F.2d 681, 682 ( 11th Cir. 1985).

Th e ri g ht t o c ou ns e l r e qu ir e s c omp le te de vo tio n to the int e re st of the de fenda nt. State v. Knight, 770 S.W .2d 771 (Tenn. Crim. App. 1988). When counsel is unable to provide a " zealous repr esenta tion . . . unfetter ed by

conflicting interests," there has bee n a bre ach of the rig ht to the effe ctive assistanc e of c ounsel. State v. Thompson, 768-28- S.W .2d 239 (Tenn. 1989) . I n Cuy ler v. Sullivan
, the United States Supreme Court held that be cause there is a brea ch of loy alty in case s involving a c onflict of intere st, prejudice is presumed. 446 U .S. 335, 100 S. Ct . 1708, 64 L . Ed. 2d 333 (1980). Unless the petitioner c an establish that his c ounsel "a ctively repr esente d conflicting interests," he c a n n ot e sta

bli sh e d [si c ] the c on sti tut ion a l pr e dic a te fo r his c la im. I d. at 350. To establish a claim based upon c onflict of intere sts, the

c on fl ic t mu st be a c tua l a ndsig nif ic a nt, no t ir

re le va nt o r " me re ly hy po th eti cal ." How ard Clifton Ki rb y v. Sta te , No. 03C01-9303-CR-00074 (Tenn. Crim. App., at K n o x v ille, Sept. 28, 1994).

J es s e Ja me e l D a w a n v

. St a te , N o

. W2 0 0 1

- 0 0 7 9 2

- CC A

- R3

- CD
, 2 0 0 2 WL 1 4 8 3 2 1 0
, a t *2 ( Tenn. Crim. App. Mar. 11, 2002), pe rm. to appea l denied (Te nn. Sept. 23, 2002).

The pe titioner arg ues that bec au s e the attorne y s allowed Mr. Jones to testify falsely at the 1986 trial and a g ree d not to question Mr. J ones about why he was prese nt at the CeBon Mote l on the da y of the mur de r, his tr ia l wa s no t a true a dv e rs ari a l pr oc e e din g a ndthat, b y no t in ve sti g a tin g , h is attorney s missed an opportunity to develop and pr esent a dditional defense theories.

The Eig hth Circuit ex plained the limited circ umstances i nw h ic hp r e judic e may

be pre sumed:

We believe ther e is much to be said in fa vor of hold ing that Cuy ler’s [Cuy ler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708 (1980)]

ratio na le fa vo ri ng the “ a lmo st p e r s e ru le of pr e jud ic e ” do e s n ot a

pp ly outside the context of a conf lict betwee n codef

endants or se rial defe ndants. As Strickland explained, some finding of prejudice is an essential fa ctor in proving ineffe ctive assis t an ce of counsel. Unde r Cuy ler

, loy alties d iv id e d

b e tw e e nc o defe ndants nec essarily will infect the very coreof at lea st one’s def ense, a nd prejudice should be pr e su me d

. H o we ve r, the sa me imp a c t w ill no t be fo un d auto ma tic a lly in other c o n fl i ct situations. The latter may have suc h limit ed conseque nces that they

will not invariably

demonstrate pr ejudice and “a de nial of the ‘right to have the ef fec tive assi s t an ce of counse l.’” Cuy ler, 446 U.S. at 349, 100 S. Ct . 1708 (quoting Glasser [v. Unit ed Sta te s], 3 15 U. S. [6 0], 7 6, 62 S. Ct . 4 57 [ (1 94 2) ]. I n th os e c a se s, sound re as o n ing supports requiring a def endant to prove actua l prejudice under the Strickland standard in or der to mee t the

c on sti tut ion a l st a nd ardfo r i ne ff e c tiv e a ssi sta nc e of

c ou ns e l.

Caban v. United States, 281 F .3d 778, 782 (8th Cir. 2002).-29-

Whil e trial c ounsel did not question Ken J ones as to why he was at t he mot el, t his fact doe s

no t r e su lt i n th e ir

re pr e sent in g the int e re sts of She ri ff Wea kle y . A c c or din g ly , to pr e va il o n th is claim, the petitioner must establish that he was prejudice d by trial counsel’ s not ascertaining a nd

cros s-e x ami ning Ke n Jon e s’ s tr ue re a so n f

or be ing a t th e mot e l, thu s d e privi ng the jur or s o f this kn ow le dg e in a dd iti on to m iss ing the op po rt un ity to c ro ss- e xami ne Ve rn e dith Wh ite . We wi ll

re vie w this arg ume nt a lon g wi th the re la te d c la im, ma de a t or a l arg ume nt, that tria l c ou ns e l c ou ld ha ve c re a te d r e sid ua l do ub t by pr op e rl y de a lin g wi th K e n Jon e s.

I n 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 mig ht have g otten the key s to the victim’s car w ithout confronting her, surmising “be cause of the wa rmth on the day

a t is su e , [th e vic tim ] wa s w e ari ng on ly a ve ry lig ht w e ig ht s umm e r s hif t” a ndthat he r m a id’ s c oa t, wher e she ke pt her ke y s and wa llet, “was most li kely hang ing on the clea ning c art, whic h g ave [the petitioner] easyacc ess.” The petitioner ar g ues that the stateme nts of J ones and White that they neither sa w nor he ard a ny thing “ that wa s co n n ec ted with the crime” ar e “unbe lievable.” The victim’s schedule to c lean the r ooms, the petitioner asserts, was such that she w ould not have

rea ched r oom 21, wher e she w as killed, until “noon,” re sulting in J ones and White at lea st seeing her. Th e pe tit ion e r n ote s th a t, at th e 19 86 tr ia l, Jone s sa id he didno t kn ow wh e the r the vic tim wa s ma le

or fe ma le , y e t he tol d M a xey Ki ttr e ll, a no the r w itn e ss, that “a wom an h a d b e e n s ta bb e d” a ndtol d Whit e that “the re w as a de ad woman in ther e. ” T his testimony , acc ording to the petitioner’s arg umen t , d em o n strates “ knowledg e that no one but the pe rpetrator could have known.” The p e t i t i o n e r p o i n t s t o o t h e r

d i s c r e p a n c i e s , i n c l u d i n g J o n e s ’ s t e s t i m o n y t h a tt h e “ r a n d o m l y

s e l e c t e d k e y” which he pic ked up “just happe ned to open the loc k on room 21, the m urder room”; and the fac t that Whit e testified that she and Jones were at the motel from 9:00 am until the emer g ency call, which

wa s ma de a t 2: 36 p. m., le a ve s tw o h ou rs of Jone s a ndWhit e ’s a c tiv iti e s “ un a c c ou nte d f or .” Th is tim e pe ri od , ac c or din g to the pe tit ion e r’ s the ory , all ow e d J on e s to driv e Whit e to Dic ks on a nd“ to clea nse himself and his van of the victim’s blood.” The pe titioner surmises that J ones then re turned to the mot e l to d e te r mi n e w h e th e r th e mo te l o w n e r s h a d c o me b a c k a n d f o u n d th e b ody , and discovere d that this had not occurr ed. F inally , acc ording to this arg ument, “by belatedly announcing that a woman ha d been sta bbed to death, J ones succ essfully remove d himself as a s u s p ect a nd there by , with the help of his frie nd the sheriff
, was able to ke ep himself from being investigated by the def ense a nd by

the prosec ution.”

The post-c onviction court conc luded that the petitioner would not have be nefitted fr om the

c la im tha t K e n Jon e s h a d k ill e d th e vic tim :

Petitioner insist s that his trial counsel should have attempted to cast suspicion upo n Ke n J ones as a possible perpe trator of

the

c ri me a ndthat coun sel wa s in e ff e c tiv e in a llo wi ng Mr . Jon e s to

“ p e r j u r e ” h i m s e l f

i n h i d i n g h i s tru e r e a s o n f o r b e i n g a tt h e h o t e l. Whil e counse l h ad b ro u g ht out that there ha d been another stra ng er in the are a of the CeBon Mote l that morning, the y did not develop any rea son for the jury to consider that someone other than Petitioner-30- c omm itt e d th e of

fe ns e . Pe tit ion e r a sse rt s that his tr ia l c ou ns e l sh ou ld ha ve su g g e ste d th a t pe rh aps , M s. Jenkins ha d thw art e d M r. Jone s[’ s] pla nn e d s e xua l li a iso n w ith Ms. Whit e a ndthat th is w a s a mot ive to kill h er . He f

urther sug g ests that their theory might explain the twenty dollar bill under Ms. J enkins ’s watch band [si c] and the

car eful insertion of the knife into he r vag ina. Trial c ounsel knew of the ac t u al rea son for Mr. Jones[’s] prese nce at the motel, having learned it from the she riff. O f cour se, they could have investigated further and learned the details of t he enc ounter but the Court does not find that the informa tion would have bee n particula rl yuseful. To pr e se nt suc h a farf

e tc he d the ory wi th n o s up po rt ing e vid e nc e wo uld

cause a loss of cr edibilityby the def ense at trial. Admittedly
, if trial

c ou ns e l ha d le arn e d th e e xac t de ta ils of the mov e me nts of

Mr . Jon e s, Ms. Whit e a nd

the pe rs on (s ) i n th e ma

ro on or br ow n c ar, the y

c ou ld have “ muddied the wate r” conce rning the details of the discovery of the bo dy . T his wo uldha ve be e n in su ff ic ie nt, ho we ve r, to c a st

reas o n ab l e doubt on the g uilt of Petit ioner g iven the fa ct that Petitio n er wa s shown by

the proof to ha ve take n the dec ease d’s ca r key s, presumably

from her billfold (in which she hab i t u al l y kept them), and stolen he r ca

r. To ac cept Petitioner’s ar gu m en t that he didn’t kill t he dec ease d but merely t o o k her c ar ke y s from her body (which w as wra

pped in a blanket) and stole he r ca r would re quire the
tr i a l j u r y t o d e p ar tf

r o ms p e c u l a t i o n a n d e n t e r i n t o f a n t a s y.
Missing in the petitioner’s theory
, which the post-c onviction court desc ribed a s “fa rfe tched,” is any motive or rea son why J ones would want to kill t he victim, except the petitioner’s sug g estion,

rec ounted in the post-conviction’s f indings, that the vic tim wa s killed be cause she had “ thwarte d” the se xua l lia iso n be tw e e n Jone s a ndWhit e . In e ff e c t, t he pe tit ion e r a

rg ue s th a t f

if ty -o ne -y e ar- old Ke n J ones, ac companied by his twenty -one- y ear -old g irlfriend, V erne dith W hite, f o l l o w i n g the ir normal Sunday morning routine and chec king into the same motel w here they had be en t o gether ap p ro x imately

100 times before and we re know n by the staff , including the victim, stabbed the vic tim to d e a th, wi th Jone s d ri vin g Whit e to ano the r l oc a tio n, c le a nin g blo odfr om h ims e lf a ndhis

ve hic le , a ndthe n r e turnin g to the sc e ne to re po rt the c ri me a nd wa it fo r la w e nf or c e me nt of

fi c e rs to

arrive. We ag ree wit h t h e post -convic tion court that, g iven the streng th of proof a g ainst the petitioner, making the arg ument that Ken J ones was the actua l killer would have be en “f arf etche d” and could ha ve re sulted in a loss of cre dibilit y for the de fense

. As our supre me court expl ained in State v. McKinney , 74 S.W .3d 2 9 1 (Tenn. 2002)
,

“ ‘[r ]es idu a l do ub t e vid e nc e ,’ in g e ne ra l, m a y c on sis t of

pr oo f a dmi tte d d uring the se nte nc ing ph a se that indicates the de fenda nt did not commit the offe nse, notwithstanding the jury ' s verdict f ollowing the g uilt phase.” I d. at 307 (c iting State v. Ha rtman, 42 S.W.3d 44, 55-56 (Tenn. 2001)) . Residual evidenc e may

be that which r elates “ ‘to the circ umstances of th e cr i m e o r t h e ag g ravating or-31-

mitigating circ umstances, including evidenc e whi ch may mitigate [the def

endant’ s] culpabilit y .’” Hartman, 42 S.W .3d at 56 (quoting State v. Tea g ue, 897 S.W.2d 248, 256 (Tenn. 1995)).

We p re vio us ly

ha ve se t ou t th e e vid e nc e that the pe tit ion e r ar g ue s cou ld ha ve be e n u se d to

e sta bli sh re sid ua l do ub t, c on sis tin g pr ima ri ly of c on tr a sti ng te sti mon y fr om the jury pr oc e e din g s in 19 86 a nd19 89 a ndtha

t of Ver ne dith Wh ite a t th e po st- c on vic tio n h e ari ng . A sk e d at th e po stconviction hea

ring about the s i gn i fi ca nce of this testim ony , one of pe titioner’s trial counse l respon d ed t o p o st-conviction counse l: “To be hone st with y ou at this point and tim e I don’t

re me mbe r p utt ing a ll o f the se tim e pe ri od s tog e the r a s y ou are , a s y ou ha ve do ne ri g ht no w. ” Th us , most of t h e i n fo rm ation relied upon by post-conviction counse l was bef ore the jury

but was not utiliz ed, as post-c onviction counsel has done, to make it appea r t hat Ken Jones might have been the perpe trator. The p et i t i o n er arg ues that, had V erne dith W hite testified in 1986 or 1989, her “ey ewitness information .

. . very well could have cr eate d rea sonable doubt in the minds of the jurors

a ndc ha ng e d th e ou tc ome of the tr ia l.” We r e sp e c tf

ull y dis a g re e wi th this a sse rt ion be c a us e Whit e said t h at J o n es was not in the motel room long enoug h to have killed the victim. Thus, Whit e’s testimonywould not help the petitioner unless the jurors believed her as to the various times of the events so as to make it appear that J ones could ha ve bee n the killer, but disbelieved he r whe n she

s a i d t h a tJ o n e s c o u l d n o t

h a v e k i l l e d t h e v i c t i m

. W h i l e J o n e s w a s n o ttru t h f u l i n h i s tr i a l t e s t i m o n y, and its acc eptanc e by

trial counsel pr evente d Whit e fr om being identified as a witness, t heir true purpose f or being at the hotel would appea r to be irr eleva nt to the guilt, innocenc e, or punishment of the pe titioner. Thus, we c oncur w ith the post-conviction court’s de termination that the petitioner was not harmed by

the fa ct that trial counse l neither discove red Ken J ones’s true purpose f or being at the motel nor that Vernedith Whit e was with him. See S tate v. Austin, 87 S.W .3d 447, 459 (Tenn. 2002) (while trial court e rre d in excluding from e v i d en ce v i ce squa d report which may have identified ot her persons wit h motive to kill the vi ctim, the “essence ” of the report was put bef ore the jury during cross-e x amination of a witness, so the err or wa s harmless). We c onclude, f urther, that the pe tit ion e r wo uld no t hav e c re a te d re sid ua l doub t by arg uin g that Ke n J on e s h a d kill e d th e vic tim

.

2. F ailure to Object

to Sheriff

Weakley’s P artic ipation in Voir Dire

Th e pe tit ion e r a

rg ue s h e wa s p re

jud ic e d b y

the fa c ts that Sh e ri ff

Wea kle y wa s in vo lve d in the voir dire a nd, beca

use he pa rticipated in the investigation, testified at the trial, and “ [s] urely

. .

. possessed an opinion as t o [t he petitioner’ s] guilt before the trial and the re [was] a g reat potential for the she riff to ha nd-pick juror s sy mpathetic to the prose cution.” Additionally , the petitio n er arg ues that “a

jury could easily associate with the credibility of t he sheriff who testified a g ainst [t he petitioner].” Thus, acc ording to the petit ioner, he “wa s denied due proce ss and a tria l by a fa ir jury .” The State re sponds that, as to this arg ument, the petitioner include d no ci t at i o n s to the rec ord require d by

Rule 10(b) of this court, which would demonstrate the deg ree of participation by Sheriff Weakley in the jury

selec tion pr ocess. Additionally
, the State arg ues that this issue has bee n waived beca use no proof

was pre sented a s to it during the he aring on the post-conviction petition. We ag ree with the State’s ar g uments and conc lude that this claim has bee n waived.-32- 3. F ailure to Discove r Im peachm ent Evidence

The pe titioner contends tha t t ria l c o u n s e l w e r eine ffe ctive by failing to discover impea chment evidenc e that State’s witness Da niel Bla ir, on the day that he had g iven the petitioner a ride, wa s on felo n yprobation for

theft of livestock; that State’s w itness Victoria Hine s Daniel F urlong was a n alcoholic a nd had bee n drinking the day she supposedly

saw blo o d o n t h e petiti oner’ s shirt; that State’s witness Ernest Daniel also was an alcoholic and had not te stified completely truthfully about Fur long’ s drinking; a nd that Melanie Chandle r would have contra dicted her mother’s testimony

that the pe tit ion e r c arrie d a

kn if e wh ic h h e ha d b e e n s e e n s ha rp e nin g . We wi ll c on sid e r the se c la ims

.

As to Daniel B lair, trial counse l acknowle dg ed that they did not investi gat e h is criminal h i s t o r y. T h e p e t i t i o n e r s u b m i t s t h a tt h e c o m b i n a t i o n o f t h e i m p e a c h m e n te v i d e n c e o f B l a i r ’ s f e l o n y, coupled with discre diting his testimony that he saw blood on the petitioner’s shirt on the day of the murder, w ould have a ffe cted his cr edibility . The State arg ues that Bla ir’s being on probation made him more cre dible beca

use, in admitting that he had been in T ennesse e, he admitted also that he had vio la te d h is p ro ba tio n. Th e po st- c on vic tio n c ou rt fo un d that effe c tiv e ly

imp e a c hin g thi s w itn e ss

wo uldha ve be e n u nli ke ly . We a g re e the pe tit ion e r’ s c la im i s sp e c ulativ e that Blai r s uc c e ssf ull y could have b ee n i m p eached with this additional information and c onclude, a ccor dingly , that the

rec ord supports the post-convic tion court’s dete rmination.

The pe titioner also contends that trial c ounsel wer e inef fec tive in fa iling to discover that Victoria H ines Danie l Furlong was an alcoholic and had been drinki ng on the day she t estified at the p e t i t i o n e r ’ s t r i a l

. A t t h e p o s t

- c o n v i c t i o n p r o c e e d i n g , s h e c o n tr a d i c t e d m u c h o f h e r p r i o r t e s t i m o n y,
as we have pr eviously

set out. The post-convic tion court reje cted F urlon g’s en t i re testimonyas “incr edible and w orthless.” The rec ord supports this determination.

Additionally , the petitioner contends that counsel were ine ffe ctive for failing to discover that Ernest Da niel, Victo ria F urlong ’s husband a t the time of the petitioner’ s trial, was not truthful

re g ard ing the a mou nt an d exte nt of his wi fe ’s drinking . T he po st- c on vic tio n c ou rt fo un d D a nie l to be in c on te mpt

of c ou rt a t th e po st- c on vic tio n p ro c e e din g be c aus e he hadbe e n d ri nking pr ior to testify ing. T he court found the only fac t that it could determine with re spect to Dan i el ’s and Fur lon g’s t es t i m o ny

was that they

eac h lied under oath at either the trial or the post-c onviction hearing. Given this fac t, the court de termined that intervie wing either of these w itnesses would not have be nefitted c ounsel in impeaching them at trial. The r ecor d supports this conclusion.

Cou ns e l tes tif

ie d tha t the y did no t in te rv ie w M e la nie Cha nd le r o r V ir g ini a Cha nd le r p ri or

to trial. Melanie Cha ndler testified at the hearing that her mother had a nimosit y toward the petitioner and dra nk heavily

. Melanie Chandler admit ted t hat s he was not on good te rms with her mother. T he post-conviction court noted that Chandler “ g lance [d] aff ect i onately ” at the pe titioner during the hearing, ma

king it obvious that she still had fee lings for him. I n conclusion, the c ourt found that the imp e a c hme nt v a lue of

Me la nie Cha nd le r’ s te sti mon y wa s “ marg ina l, at be st. ” We c on c ur wi th this assessment. Ac cording ly , as to this claim, we ag ree with the conclusion of t he post -convic tion court that the petitioner failed to establish prejudice

.-33- 4. Lack of

Experience and Resource s of Cou nsel

The petitioner contends both that his c ounsel wer e too inexperience d to try a ca pital case and failed to re prese nt him z ealously beca use the c ompensation provided a ppointed attorney s was too low . T he c ou rt

de te rm ine d th a t th e se arg ume nts we re wi tho ut m e ri t, andthe re c or d s up po rt s th is

c on c l u s i o n

. W e h a v e p r e v i o u s l y h e l d t h a t i n e xp e r i e n c e o f c o u n s e l a l o n e d o e s n o t e q u a te to ineffe ctive assistanc e of c ounsel. Anthony J

. Robinson v. State, No. 02C01-9707-CR-00275, 1998 WL 538566, at *2 (Tenn. Crim. App. Aug

. 26, 1998). Additionally , the ar g ument that the State’s compensa tion of appointed counse l contributed to the ineffe ctiveness of counse l has bee n reje cted b y this cour t. Se e H e n r y

E u g e n e H o d g e s v

. St a te , N o

. M 1 9 9 9

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, a t * * 2 1

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. O c t. 2 0
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, p e r m. to ap p e a l d e n ie d ( T e n n . Mar. 26, 2001).

C. Ine ffec ti ve As sis ta nc e of C ouns e l at 19 89 Re se nt e nc ing

As to this pr oc e e din g , th e pe tit ion e r a rg ue s th a t c ou ns e l w e re ine ff e c tive in fai li ng to inv e sti g a te his ba c kg ro un d a nd pr e se nt e ff e c tiv e mit ig a tio n pr oo f; faili ng to c ha lle ng e the he ino us , a tr oc iou s, a ndc ru e l a g g ra va tin g c ir c ums ta nc e ; a ndfaili ng to g ive a c losin g arg ume nt. We w ill

c on sid e r the se c la ims

. 1. Mitigation P roof

a. F am ily Bac kgr ound/ P r oo f of Ab use

I n its opinion aff

irming the 1989 re sentenc ing of the petitioner, our supr eme c ourt set out the mitigation evidenc e pre sented in his behalf :

I n mi t i g a t i o n , t h e d e f

e n d a n t p r e s e n t e d p r o o f t h a t , w h i l e in prison on this conviction, he had pre sent ed n o serious disciplinary problems and pose d no threa t to the prison population. The de fenda nt also p rese nted proof of a troubled c hildhood. His father ha d abandone d the fa milywhen the de fend an t wa s y oung . His mother had an a lcohol problem. I n his te ens the defe ndant bec ame involved in s nif fi ng g a so lin e a ndg lu e and beg a n to abu se a lc oh ol anddr ug s. He a lso ex hibited self-de structive beha vior. Dr. Pamela Auble, a clinical psy cholog ist, testified that the defe ndant was suf fering f rom a par anoid personality disorder and dy sthy mia, or chr onic depr ession. Ac co rd i n g t o Dr

. Au b l e, t h e d ef en d an two u l d s u p p re s s h i s fe el i n gs

un til the y " bo ile d u p" un de r s tr e ss. I n h e r o pin ion , the de fe nd a nt, who had r eturne d from turbulent visi ts with his parents and g irlfriend shortly befor e he c ommitt ed the murde r, wa s under stre ss when he killed the victim. Dr. Ann Marie Cha rvat, a sociolog ist, also testified-34- about the dama g ing e ffe ct of the c ircumstance s o f h i s childhood on the de fe nd a nt.

Hines, 919 S.W.2 d at 5 7 7. The supre me court char acte rized the petitioner’s mitigation proof as “extensive.” I d. at 584.

The petitioner arg ues that counsel should ha ve called his f amily members to te stify

reg arding the phy sical, sexual, and emotional abuse he suff ere d

. C o u n s el did not call family members a s wi tne sse s a t r e se nte nc ing , p re se nti ng mit ig a tio n p ro of of the pe tit ion e r’ s a

bu se thr ou g h tw o e xpe rt s. The pe titioner further

contends that additional experts should have been employ ed, and a dditional pr oo f r e g ard ing his tr e a tme nt at G re e n Ri ve r B oy s Ca mp s ho ul d hav e be e n p re se nte d. Th e po stconviction court noted that the detailed mitigation evidenc e pre sented a t the post-conviction hea ring was prep ar e d b y

tw o a tt o r n e y s , th r e e in v e s ti g a to r s , a n d s e v e r a l m e d ic a l e xp e r ts o v e r a th r e e-y ear period, stating that that period of time was “ far in excess of the time which would ha ve bee n allowed to prepa re f or eve n a ca

pital trial.” The court found the additional mitigation proof of the petitioner’s family backg round and a

buse, pre sented a t the post-conviction hea ring , was essentially the same a s that prese nted at the r esente ncing , simplymore in-de pth. Accor dingly , the cour t determined that

e ve n wi th the a dd iti on a l mit ig a tio n pr oo f, the a g g ra vatin g c ir c ums ta nc e s w ou ld h a ve c on tin ue d to

ou tw e ig h th e mit ig a tin g c ir c ums ta nc e s.

Th is c ou rt ha s st a te d th a t “ [a]n inv e sti g a tio n s o in a de qu a te a s to fail t o f ormul a te a n ‘ a c c ur a te life prof ile’ o f t h e d ef

en dant may

be the ba sis for post-conviction re lief. Ye t the extent of investigation required is larg ely depende nt upon information supplied by the def endant.” Bates v. State, 973 S.W .2d 615, 633 (Tenn. Crim. App. 1997) (citing J ackson v. Her ring , 42 F.3d 1350, 1367 (11th Cir. 1995); Bur g er v. K emp, 483 U.S

. 776, 795, 107 S. Ct. 3114, 97 L . Ed. 2d 638 (1987))

.

I n Goad v. State, 938 S.W.2d 363 (Tenn. 1996), our supreme court set out the rele vant fa ctors to consider whe n det er m i n i n g if prejudice had re sulted from a tria l attorney ’s fa ilure to prese nt mitigating evidenc e during the pena lty phase of a capital trial. There
, the court found that counsel’s failure to investigate, explore, and pre pare the proposed miti g ating evidenc e was not “‘the result of

rea sonable prof

essional judg ment’ and ‘ fel l o utside the wide rang e of pr ofessionally competent assistance .’” I d. at 371. I f counsel’s perf ormanc e is de ficient, the court must next determine if the petitioner has discha

rg ed th e dutyof proving that prejudice resulted f rom counsel’ s perf

ormanc e. I d. The c ourt explained how this determination is made:

[I f the] a lleg ed pre

judice under

Strickland involves counsel' s failure to p re se nt m iti g a tin g e vid e nc e in the pe na lty ph a se of a c apit a l tria l,

sever al fac tors are signific ant. Fir st, courts have analy zed the nature and extent of the mitiga ting e vidence that was a vailable but not pr e se nte d. Se c on d, c ou rt s h a ve con si der e d w he the r s ub sta nti a lly simil ar mitig ating evidenc e wa s prese nted to the j u ry in either the gu i l t or pena lty

phase of the proc eeding s. Finally , the courts have considere d whether

there was such strong evidenc e of a g g ravatingAs s u ppl eme n t al a u t h or i t y , t h e pet i t i on er r el i es on W i g g i n s v

. Smi t h
, 539 U

. S. 510, 516, 123 S. Ct

. 2527, 2532, 2

1 5 6 L. E d

. 2 d 4 7 1 (2 0 0 3 ), w here the p et i t i o ner had so ught p o st

- co nvi ct i o n rel i ef f rom hi s cap i t al co nvi ct i o n, al l egi ng t hat t ri al co unsel “ had rendered co nst i t ut i o nal l y d e fec tive ass i st ance b y f ai l i ng t o i nvest i gat e and present m i t i gat i ng

e v id e n c e o f his d ysfu n c tio n a l b a c k g ro u n d .” T ria l co u n se l utili z e d the d e fen se tha t an o the r p e rs o n ha d kille d the vic tim and di d not pre s ent ev i dence t hey had s howi ng t he pet i t i oner ’ s “ l i mi t ed i nt el l ect ual capaci t i es and c hi l dl i ke emo t i onal
sta te

. . . an d the a b se n c e o f ag g re ssiv e p a tter n s in h is b e h a v io r, h is c a p a c ity fo r em p a thy, a n d h is d e sire to fun c tio n in
t h e w or l d[

. ] ” I d. Co u n s e l e l e c t e d n ot t o us e speci f i c i n for ma t i on t h a t t h e pe t i t i on e r a n d h i s s i bl i n g s w e r e l e f t “ h om e al on e f or da y s , for ci n g t h em t o be g for f ood an d t o e at pa i n t c h i ps a n d g ar bag e, ” an d t h at h e h ad bee n “ g an g

- r ape d” on

mor e t h an on e occ as i on

. I d.
, 539 U

. S. at 516- 17, 123 S. C t

. at 2533. T h e c ou r t det er mi n ed t h at t r i al c ou n s el ’ s de ci s i on

no t t o ut i l i ze b ackgro und i nf o rma t i o n was o ne whi ch “di d no t ref l ect reasonab l e p rof ess i o nal judgm ent ” and tha t t he
p e tit io n e r h a d b e e n p re ju d ic e d a s a r e su lt, th e re b e ing a r e a so n a b le p ro b a b ili ty th a t th e j u ry w o u ld ha v e re tur n e d w ith

a d iff e re n t se n te n c e , h a d the y k n o w n this in fo rm a tio n . Id ., 5 3 9 U .S . at 5 3 4 , 1 2 3 S . C t. a t 2 5 4 1 -4 2 . In th e p re se n t ap p e a l, tria l co u n se l p re se n te d s u b sta n tial e v id e n c e a t th e s e n te n c ing h e a rin g , a ltho u g h n o t to th e e x te n t t h a t wa s d o n e a t t h e p o stconvi ct i on he ar i ng

. W e f i nd t hat W i gg i ns i s not appl i cabl e.

-35- fa ct o rs t h at t h e m i t i gat i n g ev i d en ce wo u l d n o th av e a ff ec t ed th e j u ry 's determination.

I d. (citations omitted).

I n th e pr e se nt a

pp e a l, the po st- c on vic tio n co urt fou nd that c ou ns e l w e re no t de fi c ie nt i n th e ir repr esentation of the petitioner, saying that “[i] n view of the overw helming stre ng th of the ag g ravating f

actor s in Petit ioner’s c ase . . . the mitigating fac tors would not have a ffe cted the jury ’s determination. The jury

would be required by logic and common sense to find that the ag g ravating circ umstances outwe ighe d the ef fec t of the m i t i gating fac tors bey ond a re asonable doubt.” Acc ording ly , under the principles enunc iated in Goad, the post-conviction court found that the petitioner wa s not prejudiced by the fa ct that co u n s el at the sentenc ing he aring had not pre sented mitigating evidenc e in the deta il that was done at the post-convic tion hearing . We conclude that the

rec ord supports this determination. 2

b. Se r ot oni n De fens e
The pe ti t i oner c ontends that rese ntencing counsel we re ine ffe ctive for failing to present

e vid e nc e of

his se ro ton in d e fi c ie nc y . A s to thi s c laim
, the po st- c on vic tio n c ou rt de te rm ine d th a t, ba se d u po n th e te sti mon y of the wi tne sse s at the he ari ng , the se ro ton in e vid e nc e wa s n ot r e a so na bly available to the petitioner’s resentenc ing counsel, si nce it wa s not known to them and could not have been disc overe d by

the exercise of

rea sonable dilig ence

.

Dr . Ro ssb y

a c kn ow le dg e d th a t he did no t wor k on de ve lop ing thi s issu e in a c ri min a l c a se until approx imately 1992, three y ear s afte r the petitioner’s re sentenc ing trial. Further, he said that he did not actua lly

testify on t h e i s s ue of se rotonin until 1999, t en y ear s after the petitioner’s

re se nte nc ing tr ia l, a nd he kn e w of no on e wh o ha d te sti fi e d on thi s iss ue prior to that. A s th e po stconviction court s t at ed: “Petit ioner’s c ounsel at re -sentenc ing c ould not reasona bly have be en

e xpe c te d to se arc h f

or e xpe rt s o n a

su bje c t w hic h the y didno t kn ow e xiste d. ” Th e re c or d s up po rt s this conclusion.-36- c. Heinous, Atrocious, and Cruel Aggravating Circum stance

The pe titioner arg ues that counse l were ineffe ctive at r esente ncin g b ecause they did not challeng e the testimony

of Dr. Charles Harlan reg arding the l eng th of t ime the victim was consc ious and could ha ve lived or e x perie nced pain f o l l o wi n g t he stabbing . At rese ntencing , the petitioner offe red the testimony

of Dr. Chris Sperry

who disag ree d with Dr. Ha rlan’s te stimonyreg arding the victi m ’s co n s ci o usness and a mount of time she could have survived following the wound to the heart. Dr. Sperry

opined that the victim would have be en consc ious onlyfiftee n to t h irty seconds following the stab wound to the heart, as opposed to Dr. Ha rlan’s te stimonythat 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- c o n v ic ti o ncourt found c ounsel wer e def icient in failing to investiga te and introduc e tes t i m o n y to refute Dr. Ha

rlan’s c onclusions, determining , howeve r, that the pe titioner was not prejudice d by

the lack of such testimony

. The court found that the jury would have be en much more persua ded by

the t estimony of t he pathologist who performed the autopsy , as opposed to one w ho drew conclusions from the a utopsy report and photog raphs. Ac cording ly , the court c oncluded that the testimony

of Dr. Sper

ry would not have r esulted i n re as o n ab l e doubt that the victim was

c on sc iou s d ur ing the app are ntl y fi na l w ou ndto th e vagina, bo th p a tho log ist s c on c lud ing that th is wound occur

red at or shortly afte r the time of death. Moreove r, the court de termined that e ven if the jury did have reasona

ble doubt in this reg ard a nd did not find this agg ravating f actor applied, the

rema ining two a g g ravating f actor s were still strong en o u gh to outweig h the mitigating fac tors as p re s en t ed at t h e p o s t -c o n v i ct i o n h ea ri n g.

As to this is sue, the State a lso arg ued that even i f t he victim wer e unconscious at the time the vag inal wound was inflicted, t he jury could have found t hat t he natur e and inf liction of that wound

c on sti tut e d d e pr a vit y

of min d a ndthat th e de pr a ve d s ta te of min d of the pe tit ion e r e xiste d a t th e tim e the fatal blows were inflicted upon the victim. Our supreme court has held that depra vity of mind of the mur de re r m a y

be inf e rr e d fr om a c ts c omm itt e d at or sh ortly a ft e r the tim e of

de a th. Se e Sta te v. Wil liams, 690 S.W.2d 517, 529-30 (Te nn. 1985). The c ourt explained that the nature of injuries
to a vic tim ma y c on sti tut e de pr a vit y

of min d u nd e r t

he ho ldi ng in Wi lli a ms:

The willful insertion of a

sharp instrument into the vag inal cavity of a dy ing w oman (or a

woman who ha d just died) sati s fies the

re qu ir e me nts of

Willi a ms, su pr a . I f co mmi tte d p ri or to d e a th, the se

a c t s c o n s t i t u t e t o r t u r e a n d t h e r e b y a l s o s u p p o r t a f i n d i n g o f d e p r a v i t y. I f th ey o cc u rre d close in time to the victim's de ath, they allow the draw ing of

an infe renc e of the depra ved state of mind of the murde rer at the time the fatal blows were inflicted on the victim.

Hines, 919 S.W.2d at 581. W e conc lude that the re cord supports the findings of the post-conviction
court a s to this i ssue.-37- d. C los ing Ar gum e nt

The pe titioner contends that his counsel were ineffe ctive in not making a closing arg ument

a t re se nte nc ing

. As to thi s c la im, a ll thr e e of the pe tit ion e r’ s r e se nte nc ing c ou ns e l te sti fi e d th a t th e ir decision to waive closing arg ument was ba sed on the fa ct that they did not want the State to prese nt

a re bu tta l a rg ume nt. Th e la w i s c le ar tha t th is c ou rt ma y no t se c on d- g ue ss the ta c tic a l a ndstr a te g ic

c ho ic e s ma de by

tr ia l c ou ns e l un le ss tho se c ho ic e s w e reun inf orme d b ecaus e of

ina de qu a te prepa ration. Hellar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982); see also Be ll v. Cone, 535 U .S. 685, 122 S. Ct . 1843, 152 L

. Ed. 2d 914 (2002); S tate v. Menn, 668 S.W .2d 671, 673 (Tenn. Crim. App. 1984). The post-conviction court conclude d that trial counsel ha d made a tactica l decision to waive closing arg ument to preve nt the State’s then being able to make a strong reb u t t al ar g ument. The

rec ord supports this conclusion.

e. Assistance of Counsel on Direct A ppeal

T h e p et i t i o n eral s o co n t en d s t h at h i s ap p el l at e co u n s el we re i n ef fe ct i v e i n fa i l i n g t o ch al l en ge the c on sti tut ion a lit y of th e jury ins truc tio ns a t hi s 1 98 6 tria l. H e didno t pr e se nt e vid e nc e of thi s i s s u e at t h e p ost-conviction hea ring , and the post-c onviction court did not addre ss it in i ts order. Moreove r, the pe titioner did not cite to the rec ord or to any leg al authority

in makin g this skeletal

arg ume nt. Ac c or din g ly , this iss ue is w a ive d. Te nn . R. Ap p. P. 2 7( a )( 7) ; T e nn . Ct . Crim. Ap p. R. 10(b).

D. Underre presentat ion of Wom en in the Cheatham County Jury Venire

The petiti o n e r

c o n te n d s th a t th e r e w a s a n u n d e rr e p r e s e n tati o n o f w o me n in th e Ch e a th am Countyjury

venire from which his pe tit jury was chosen. Be cause this iss ue wa s not presente d on d i re ct ap p ea l
, i th as b ee n wa i v ed

. T en n

. C o d e An n

. § 4 0 -3 0 -2 0 6 (g)

. P o s t -c o n v i ct i o n p ro ce ed i n gs

ma y no t be us e d a s a

su bs titute fo r an a

pp e a l to re vie w o r c or

re c t e rr ors of fact or law a lle g e dly committed b y

a c o u r t o f c o mp e te n t j u r is d ic ti o n

. St a te v

. M c Cl in to c k
, 7 3 2 S. W. 2 d 2 6 8
, 2 7 1

- 72 (Tenn. 1987) . Howeve r, the pe titioner prese nts this arg ument in the additi onal fashion that counsel

we re ine ff

e c tiv e in f

a ili ng to c ha ll enge the c omp os iti on of the jury a t tria l. A c c or din g ly , w e wi ll revie w this matter as a

claim of inef

fec tive assistance of counse l.

The c ourt noted that at the petitioner’s 1986 trial, three of the jurors wer e women, but there was only one fema le juror at the 1989 rese ntencing hearing. Re ly ing on State v. Strouth, 620 S.W.2d 467, 470 (T enn. 1981), the post-conviction court f ound that there was no unde rre prese ntation of women on the 1986 jury . As to the 1989 rese ntencing
, t h e court determined that women wer e sy stematically

excluded, but the petitioner had f ailed to show that he w as pre judiced by the fac t that

rese ntencing counsel did not seek to qua sh the venire

.

Def endants ar e entitled to a petit jury selec ted from a

repr esenta tive cross-se ction of the community . Tay lor v. L ouisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L . Ed. 2d 690 (1975). The Tay lor Cou rt he ld: “ the jury

wh e e ls, po ols of

na me s, pa ne ls, or

ve nir e s fr om w hic h ju ri e s a re dr a wn mus t-38-

no t sy ste ma tic a lly

e xclu de dis tin c tiv e g ro up s in the c ommun ity a ndthe re by

fail t o b e re a so na

bly repr esentative there of.” I d., 419 U.S. at 538, 95 S. Ct. at 702. I n Dure n v. Missouri, 439 U.S. 357, 99 S. Ct . 664, 58 L . Ed. 2d 579 (1979), the Supreme Court se t fo rt h a three -prong ed test for d e t e r m i n i n g w h e t h e r

a j u r y w a s p r o p e r l y s e l e c t e d f r o ma f a i r c r o s s

- s e c t i o n o f

t h e c o m m u n i t y:

(1 ) the g ro up a lle g e d to be e xclu de d is a “ dis tin c tiv e ” g ro up in
t h e c o m m u n i t y;

(2) the re prese ntation of this gr oup in venires from which juries

are select ed is not fair a nd rea sonable in re lation to the number of suc h persons in the c ommunity ; and

(3) this under-re prese ntation is due to sy stematic ex clusion of the g ro up in the jury -s e le c tio n p ro c e ss.

I d., 439 U.S. at 364, 99 S. Ct . at 668. B ased upon the report of Dr. James O’Reilly which provide d that the per centa g e of w omen in C h ea t ham County betwee n 1979 and 1990 wa s 50.6 to 50.7% of the po pu la tio n, bu t th e pe rc e nta g e of wo me n in the Che a tham Co un ty jury ve nir e fo r that sa me tim e period wa s betwee n 10 and 22%, the State conce ded that the f irst two prong s of t he Duren test had been satisfied. Howeve r, the State a rg ues that the pe titioner did not p ro v e the third prong of the Dure n t es t , t h at the under repr esenta tion resulted from sy stematic exclusion of women in the jury

se le c tio n p ro c e ss.

As to this iss ue , the po st- c on vic tio n c ou rt fo un d th a t th e pe tit ion e r h a d ma de a prima fa c ie showing of exclusion:

B y the nu merica l disp ari ty , Pe tit ion e r h a s e sta bli sh e d a prima fa c ie

case of sy stematic exclusion. The proof by the State that jurors we re selec ted from a

presumably

g ender balanc ed voter

list does not

o v e r c o m e t h e f

a c t o f t h e d r a m a t i c u n d e r

- r e p r e s e n t a t i o n o f w o m e n

. In fac t, the re is no proof whic h explains t he disparity . There can be no

ex p l an ati on other than tha t the proce ss, for whatever rea son, sy stematically

excluded women fr om Petiti oner’ s 1989 re- sente n cing trial.

The Court finds that women w ere sy s tematically excluded from the jury

panel whic h sentenc ed Petitioner t o death in the 1989 p ro ce ed i n g.

The S tate dis ag ree s with this conclusion, rely ing on State v. N elson, 603 S.W .2d 158 (Tenn. C ri m . App. 1980), whic h explained that “the courts have be en re luctant to find the existence of a prima fa cie c ase ba sed on statistics alone, instead r equiring proof of a substantial disparity

coupled wi th s y ste ma tic e xclus ion.” I d. a t 16 3 n .3 . T he Ne lso n c ou rt de te rm ine d th a t th e sy ste ma tic-39-

exclusion prong of

the test had been established by proof that the sta tisti cal disparity occur red not just occasionally

but in every

venire for a period of f

our y ear s, expl aining that “[s] uch evide nce ‘manife stlyindicates that the c ause of the underr epre sentation was sy stematic that is, inherent in the particula r jury -selec tion sy stem utiliz ed.’” I d. at 165 (quoting Dure n, 439 U.S. at 366, 99 S. Ct. at 66 9). Th us , th e cou rt

in N e lso n f

ou ndthat th e jury

se le c tio n p ro c e ss h a d n ot b e e n c arrie d o ut i n conformitywith the statutory require ments and explained the proper m ethod of selec ting the venire:

[U] tiliz ation of wholly

subjective c riteria in a selec tion process such

as Tenne ssee' s will invite a challeng e to the arr ay whene ver it appe ars to p ro du c e jury

ve nir e s th a t are no t re pr e se ntativ e of the c ommun ity at larg e. This problem c ould be avoided b y u t iliz ation of a r andom selec tion or "ke y

number" s y s t em, which is in use in many are as of Tenne ssee, a s well as most other states and the federa l sy stem. Use of a " key number" appli ed to county reg istration list s which ar e

re fl e c tiv e of

a c ross -s e c tio n o f the c ommun ity ma y oc c a sio na lly pr od uc e a ve nir e wh ic h a pp e ars to u nd e rr e pr e se nt s ome ide nti fi able g roup in the community . Howeve r, whe n an objec tive selec tion criterion of this nature i s u s ed
, such an unde rre prese ntation can be shown to be the result of mischance rathe r than th e d eli berate, sy stematic exclusion of any g roup.

I d. at 167 (c itations and footnote omitted).

We respec tf

u l l y d i s agr ee wi t h t h e p o s t -c o n v i ct i o n co u rt ’s fi nding tha t the underrepre sentation of wo me n c omp e ls the c on c lus ion that w ome n w e re sy ste ma tic a lly e xclu de d f

ro m the ve nir e . Wh ile the p e tit ion e r a

rg ue s o n a

pp e a l th a t “ the state of

fe r[e d] no pla

us ibl e e xpla natio n” fo r the dis pa ri ty

a nd , th e re fo re , h e is e nti tle d, a s matte r o f l a w, to p re va il, we di sagr e e wi th t his c la im. I n f

a c t, substantial proof is in the record as to how t he pane l of prospec tive jurors wa s selecte d; and neither the pe tit ion e r n or

the po st- c on vic tio n c ou rt ha s id e nti fi e d il le g a lit ie s o r de fi c ie nc ie s in the pr oc e ss. Rather, both simply

relied upon pe rce ntag es of women called to jury duty to conclude that women had bee n sy stematically

excluded. I n T ru es d ale v. Moore, 142 F.3d 749, 755 ( 4th Cir. 1998), the
court ex plained that a sta tisti cal disparity does not, by

itself, establish sy stematic exclusion of a g ro up fr om the jury

po ol:

Tru esdal e ha s n ot a dv a nc e d a ny dir e c t e vid e nc e of

" sy ste ma tic exclusion" of Af

rican Americans from the ve nire. Instead he seeks
to r e ly on the ba

re a sse rt ion of

su bs ta nti a l und errep re se ntatio n to prove tha t there w as a s t ru ctura l or sy stemic impediment to voter reg istrat i o n b y

Afric an Americans. We have consistently require d more to make o u t a violation of the " fair c ross-sec tion" g uara ntee. . . . To allow True sdale to s u b s t i tute evidenc e of substantial underr epre sentation for e vidence of sy stematic exclusion would go a long w ay

towards r eq u i ring perf ect statistical cor

responde nce-40- b e t w e e n r a c i a l p e r c e n t a g e s i n t h e v e n i r e a n d t h o s e i n t h e c o m m u n i t y. Such a rule would exalt racial proportionality over ne utral jury selec tion procedur e.

Acc ording ly , we c onclude tha t t h e p o s t-conviction court erre d in finding that women had been sy stematically

excluded from the ve nire.

Reg arding this iss ue as a

po s t -c o n v iction claim, the petitioner must prove tha t his counsel

wer e inef fec tive under Strickland be cause counsel did not chal l en g e the jury venire at trial and/or

rese ntencing . Attorney

Stack testified that he ha d no rea son to susp ec t that women we re underr epre sented in the jury venire in 1986, and, in fac t, three w omen wer e on the pe titioner’s 1986 jury . Moreove r, counse l testified that they did not use all of their pe remptory challeng es at the 1986
tr ia l. Ou r sup re me c ou rt ha s fou nd that the pr e se nc e of thr e e wo me n o n th e pe tit jury c on sti tut e s a “fa ir repr esenta tion of

women on the jury

and that is all that is require d by the Constitut ion of the United States.” Strouth, 620 S.W .2d at 470. The r ecor d supports the post-conviction court’s finding that the petitioner wa s not prejudiced be cause counsel did not cha lleng e the 1986 ve nire.

Wit h respe ct to the 1989 r es en t en ci ng , Attorney s Weems and Stack testified that they

con s id e r e d c h a ll e n g in g th e ju r y v e n ir e b u t kn e w to d o s o w o u ldc o s t a v a s t amo u n t o f

ti me

. T he State arg ues that couns el we re not de ficient “ to forg o the pre paration of a time-consuming jury

c ha lle ng e in fa vo r of de ve lop ing fu rthe r mit ig a tin g pr oo f, wh ic h c ou ld sp are [the ir ] c lie nt the de a th pe na lty . A ll d e fe ns e a tto rn e y s must us e the ir dis c re tio n to dec ide ho w b e st t o u se the tim e g ive n to the m to pr e pa

re the de fe ns e .” Th e Sta te arg ue s tha t suc h de c isi on s ar e str a te g ic in n a tur e a ndsh ou ld not be sec ond-g uessed by this court. As to this is sue, the post-c onvicti o n co u rt found that the petitioner had failed to establish that he was prejudice d by counsel’s de cision not to challeng e the

ve nir e . T e sti mon y

of the pe titio ner’ s 1 98 9 c ou ns e l w a s th a t th is w a s a str a te g ic de c isi on ma de in an ef fort to best utiliz e the time which the y had fo r t ri al p re p aration. Base d upon the testimony reg arding this iss u e, t h e re co rd supports the dete rmination of the post-convic tion court that the p e t i t i o n e r f a i l e d t o s h o w t h a t h e w a s p r e j u d i c e d b e c a u s e c o u n s e l d i d n o ts e e k t o q u a s h t h e 1 9 8 9 j u r y.
The pe titioner further

contends tha

t t h epost-conviction court erre d in ignoring his c laims that the g ra n d j u ry forepersons we re se lected se parately by the judg e and the two fore persons, ser ving from 1979 to 1990, both wer e male. We note that the only proof as to this claim consisted of short portions of the testimony

of De lores Moulton and L loy d Har ris. The petiti oner’ s counsel we re not q u es t i o n ed as t o t h e m at t er , an d we h av e b ee n u n ab l e t o l o ca t e i n t h e p et i t i o n er ’s n i n et y -s i x -p age proposed f

indings of f

act a nd conclusions of law , filed af ter completion of the hea

ring s, a re fer ence that a cla im had been pr esente d and the post-conviction court was to rule on the f orepe rson selec tion proce ss. Thus, we cannot conclude that this c laim w as prese nted to the post-convi ct i o n co urtA s t o t h i s i s s u e, we n ot e t h at ou r s u pr eme cou r t , i n St at e v

. B on du r an t , 4 S. W

. 3d 662, 675 (T enn. 19 9 9 ), 3 expl ai ni ng t he hol di ng s i n Rose v. M i t che l l
, 443 U

. S. 545
, 99 S. C t

. 2 99 3, 6 1 L. E d. 2 d 73 9 ( 19 79 )
, an d H ob by v. U ni t ed Stat es, 4 6 8 U

. S. 33 9
, 10 4 S. C t

. 30 9 3
, 82 L. E d

. 2d 26 0 (19 8 4 ), s ai d t hat t he m et ho d of sel ect i ng t he grand jury f o repe rs o n i s rel evant only as t o revi ewing t he co m p o si t i o n of the g ra n d j u ry a s a who l e, t he “ role o f t he grand jury f oreper s on i n T enn es s ee [ bei ng ] mi ni s t er i al an d adm i ni s t r at i ve. ”

-41- separ ately and not s imply as additi onal i nformation in support of the pe titioner’s jury claim which we ha ve re viewed. A ccor dingly , the claim is waive d. 3

E. A ppr e ndi v . N e w Je r se y a nd R ing v. Ar iz onaAr gum e nt s

Th e pe tit ion e r arg ue s that his de a th se nte nc e is inv a lid un de r the princ ipl e s se t fo rth in Appre ndi v. New Jersey , 530 U.S. 466, 120 S. C t. 2348, 147 L . Ed. 2d 435 (2 0 0 0 ), an d R i ng v. Arizon a , 53 6 U. S. 58 4, 12 2 S. Ct. 24 28
, 15 3 L

. Ed

. 2d 55 6 (2 00 2)
, makin g tw o basi c ar g ume nts : (1) the Tenne ssee Supreme Court substituted its judg ment for that of the jury when it determined that it was h ar m l es s error for the trial court to have instructed the jury with a forme r ver sion of the Tenne ssee Code w ith respec t to the (i)(5) a g g ravating c ircum s t ance ; and (2) A pprendi a nd Ring

re qu ir e the a g g ra va tin g c ir c ums ta nc e s to be se t forth i n th e ind ic tme nt, wh ic h w a s n ot d on e in h is

case

. The S tate responds that neither Apprendi nor Ring may be retroac tively

applied to the petitioner’ s

case on collater al re view, and neither decision extends to Tenne ssee’ s capital se ntencing proce dure

or re qu ir e s th a t a g g ra va tin g c ir c ums ta nc e s b e se t f orth i n th e ind ic tme nt.

This court has de clined to apply Appre ndi and Ring r etroa ctively to su pport a re quest for po st- c on vic tio n r e lie f. Se e , e .g ., Ste ph e n M ic ha e l We st v . St a te , N o. E2 00 1- 02 52 0- CCA -R 28 -P C (Tenn. Crim. App. Sept. 6, 2002), perm. to a ppeal denied (Tenn. Jan. 31, 2003); Gre g ory Thompson v. State, No. M2001-02256-CCA-28M-PD (Tenn. Crim. App. Oc t. 3, 2001), perm. to appe al denied (Tenn. May 28, 2002). I n so holding, this court ha s relied on f eder al ca ses, conc luding that Appr endi did not create a ne w constitutional right that is re troac tively applicable . See B urch v. Corcora n, 273 F.3d 577 ( 4th Cir. 2001), cert. denied, 535 U.S. 1104, 122 S. Ct. 2311, 152 L

. Ed. 2d 1065 (2002); Mc Coy v. Un ite d St a te s, 26 6 F .3 d 1 24 5 ( 11 th C ir . 2 00 1) , c e rt . deni ed, 53 6 U.S. 90 6, 12 2 S. Ct. 2362, 153 L

. E d

. 2 d 1 8 3 ( 2 0 0 2 ) ; I n r e Cl e mm o n s , 2 5 9 F

. 3 d 4 8 9 ( 6 th Ci r

. 2 0 0 1 ) ; U n it e d State s v. Moss, 252 F.3d 993, 997 (8th Cir. 2001), cert. de nied, 534 U.S. 1097, 122 S. Ct . 848, 151 L . Ed. 2d 725 (2002). Thus, we conclude Appre ndi and Ring should not be given retroa ctive application on collater al re view. Reg ardle ss, w e discern no violation of Apprendi a nd Ring. As f or the pe titioner’s arg ument that the ruling of the United St ates S upreme Court in Ring mea ns that the holding of our

su pr e me c ou rt

in D e lli ng e r i s n o lo ng e r v ia ble , o ur su pr e me c ou rt ha s con c lud e d othe rw ise . Stat e v. Holton, 126 S.W .3d 845, 863 (Tenn. 2004) (“Ring provides no re lief to the def endant a nd does not invalidate this Court’s holding in Delling er.” ).

Additionally , the petitioner a rg ues that, at the rese ntencing hearing, the court “ instructed the jury using the 1989 [version of T en n

. Code Ann. § 39-2- 203(i)(5) ], but then found the e rror harmless.” Further, a ccor ding to the pe titioner, “an a g g ravating f actor , found by

the 1989 re

se nte nc ing jury

that su pp orte d th e deat h pen alty wa s th a t ‘ [t]he mur de r w a s e sp e c ia lly he ino us , atroc ious or crue l in that [ sic] invol ved torture or serious phy sical injury [si c] be y ond that nece ssaryIn S t ate v. M i d d l eb ro o ks, 9 9 5 S .W .2d 5 5 0
, 5 6 9 (T en n. 1 9 9 9 ), o ur s up rem e co urt ex p l aine d t ha t t he “p hra se 4 “dep ravi t y of m i nd
, ” i n t he 1 9 8 2 vers i o n, was replaced wi t h t he p hras e “s eri o us p hy si cal ab use b eyond t hat necess ary t o pro d uce d eat h” i n t he 1 9 8 9 vers i o n. A t t he res ent enci ng heari ng, t he p o st

- co nvi ct i o n co urt pro p erl y i nst ruct ed t he jur y

u s i n g t h e 1982 v er s i on of T en n

. Code Ann

. § 39- 2- 203( i )
, wh i ch wa s i n ef fec t at t h e t i me of

t h e of fen s es

. Se e i d. a t 556

n .6

.
-42- to p ro du c e de a th. ’” Ad dit ion a lly
, in thi s re g ard
, he arg ue s that “ [t]he Te nn e sse e Sup re me Cou rt he ld that it was error for the trial court to have instructed the jury using the 1989 lang uag e, but then found the er ror ha rmles s

. . . [and] [i ]n so doi ng , the court substit uted its own judgme nt finding that the evidenc e supported a

finding of torture , and further found that had the jury been pr operly instructed it would have found depra vity .” As we w ill ex plain, we r espec tfully disag ree that the petitioner ha s

acc urate ly

described the jury

instructions or the hol ding of our supreme court in t he dire ct appe al of this matter.

First, contr ary to the petit ioner’s assertions, the j ury was inst ructe d using the 1982, not the 1989, v er s ion of this statute and found, as one of the a g g ravating c ircumstance s, that “the murde r

was e specia lly

heinous, at rocious, or c ruel in that it involved torture or de pravity of mind,” as

4 in s t ru c t e d b y

t h e 1 9 8 2 s t a t u t e , a n d n o tt h e l a n g u a g e o f t h e 1 9 8 9 s t a t u t e t h a t , i n s t e a d o f “ d e pr a vit y

o f m i n d
, ” i n v o l v e d “ s e r i o u s p h ys i c a l ab u s e b e yo n d t h a tn e c e s s ar y t o p r o d u c e d e a t h

. ” A c c o r d i n g l y, since the j u rywas not instructed using the 1989 ver sion of Tenn. Code Ann. § 39- 2-203(i), our

su pr e me c ou rt c ou ld n ot d e te rm ine , a s a rg ue d b y the pe tit ion e r, that it s u se wa s e rr or bu t ha rm le ss. Further, the pe titioner’s arg ument that this error in instructing the jury results in there be ing “ no way to determine w hether

the jurors re lied on the torture pr ong or the serious phy sical injury [si c] prong in making its dete rmination” is without merit. I n fac t, the jury could not have r elied on the “ serious phy sical abuse ” prong , for this phrase is found onl y in the 1989 version of the s tatute, which was not used in the re sentenc ing.

F urthe r, we dis a g re e wi th the pe tit ion e r’ s c la ims a s to ou r s up re me c ou rt ’s fi nd ing s as t o harmless e rror

in the direc t appea l of the re sentenc ing he aring . Alth o u gh h e ar g ues that the c ourt found “it wa s err or for

the trial court to have instructed the jury using the 1989 lang uag e, but then found the e rror harmless,” this portion of t he review, by our supreme court, wa s as to the ade quacy of the instruction for

“depr avity ,” which ha d been de fined by the t ri al court as meaning “mora l

corr uption; wicked or pe rver se ac t.” Hines, 919 S.W.2d at 587. Concluding “ that this ag g ravating circ umstance ha s been c onstitut ionally applied under

the circ um s t an ces of this case a nd is not

u n co n s t i t u t i o n al l y

v agu e, ” t h e c o u rt ex p l ai n ed t h at “e v en i f t h e in s tru ct i o n s gi v en b y t h e t ri al j u d ge

wer e unconstitutional

. . ., the failure to g ive a c onstitut ionally proper instruction on depra vity

was harmless e rror

bey ond a re asonable doubt.” I d. Thus, contra ry to the petitioner’s a

rg ument, instead of finding err or by the t rial court which was ha rmless, our supre me court determined that even if the

re se nte nc ing c ou rt ha d co mmi tte d er ro r in this re g ard , th e e rr or wo uldha ve be e n h arm le ss. Th us , the pe tit ion e r’ s arg ume nts that “ the a g g ra vatin g fa c tor that ma de [the pe tit ion e r] e lig ibl e fo r d e a th in this case wa s found by

a court and not the jury ” is without merit, f or it is based upon a misrea ding of the opinion of our supr eme c ourt in the direc t appea l of the re sentenc ing in this matter.-43-

F ina lly , the pe tit ion e r ar g ue s tha t bec a us e the a g g ra vatin g c ir c ums ta nc e s tha t re su lte d in his being elig ible for the de ath pena lty wer e not set forth in the indictment and re turned by the g rand jury

as require d by

Appre ndi, his sentence must be se t aside. Howe ver, A pprendi spec ifically noted the Fifth Ame ndment rig ht to indictment bya g rand jury has not been applied to the states under the due proce ss clause of

the Fourteenth Amendme nt. Apprendi, 530 U.S. at 77 n.3, 1 2 0 S. Ct . at 2355. Acc ording ly
, our st ate supreme court’s holdings that there is no constituti onal violation due to the failure to a lleg e the ag g ravating circ umstances in the indictment a re consistent with Apprendi. See Ho l t o n , 1 2 6 S

. W

. 3 d at8 6 3 ; State v. Carter , 114 S.W .3d 895, 910 n.4 (Tenn. 2003) ; State v. Dellinger, 7 9 S. W. 3 d

4 5 8
, 4 6 7 ( T e n n

. )
, cert. denied, 537 U.S. 1090, 123 S. Ct. 695, 154 L . Ed. 2d 635 (2002). Th is i ssu e is w ith ou t me ri t.

F . Constitutional Argume nts

The pe titioner arg ues t hat hi s sentenc e viol ates various provisions of the Constit utions of the Un ite d St a te s a ndthe Sta te of Te nn e ss ee and int e rn a tio na l la w. As the Sta te c or re c tly re sp on ds
, the s e ar g u me n ts h a v e e ith e r b e e n p r e v io u s ly d e te r mi n e d o n d ir e c t ap p e a l o r w e r e w a iv e d b ythe petitioner’s fa ilure to make the arg ument on direc t appea l. To the extent the petitioner arg ues that if an is sue was not raised by prior counsel, counsel provide d ineffe ctive assistanc e of c ounsel, the petitioner has f

ailed to ra ise any

constitutional claim with respec t to the death penalty that has not alre ady been r ejec ted by

the appe llate courts of this state. See, e.g ., State v. Stevens, 78 S.W .3d 817, 85 0- 52 (T e nn

. 20 02 ), c e rt

. de nie d, 53 7 U. S. 11 15
, 12 3 S. Ct. 87 3, 15 4 L . E d. 2d79 0 ( 20 03 ); Sta te v. Kee n, 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. Ne sbit, 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. Caug hron, 855 S.W.2d 526, 542 (Tenn. 1993) . Acc ording ly , an inef fec tive assistance of counse l claim on this iss ue must fail. The pe tit ion e r’ s c la ims on thi s is su e are wi tho ut m e ri t.

III . C ON CL USI ON

B a se d u po n th e fo re g oin g a uth oriti e s a ndre a so ni ng, we aff ir m th e or de r o f the po stconviction court deny ing the petition for post-conviction re lief.

___________________________________ ALAN E. GL

ENN, JUDGE