IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 1, 2011 Session

JOHN MICHAEL BANE v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-26409 W. Mark Ward, Judge

No. W2009-01653-CCA-R3-PD - Filed July 21, 2011

In 1990 a Shelby County jury convicted, the Petitioner, John Michael Bane, of felony murder

and imposed a sentence of death. On appeal, the Tennessee Supreme Court affirmed the

conviction but remanded the case for resentencing. State v. Bane, 853 S.W.2d 483 (Tenn.

1993). After a new sentencing hearing, the jury again imposed a sentence of death, and the

Tennessee Supreme Court affirmed the jury’s imposition of this sentence. State v. Bane, 57

S.W.3d 411 (Tenn. 2001). The Petitioner filed a petition for post-conviction relief, which

the post-conviction court denied after a hearing. The Petitioner now appeals, contending

that: (1) he received ineffective assistance of counsel at his original trial and at his

resentencing hearing; (2) the trial court erred when it instructed the jury; and (3) the death

penalty is unconstitutional. After a thorough review of the record and applicable authorities,

we affirm the post-conviction court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and ALAN E. GLENN, JJ., joined.

Ann C. Short Bowers, Knoxville, Tennessee, and Marty B. McAfee, Memphis, Tennessee,

for the Appellant, John Michael Bane.

Robert E. Cooper, Jr., Attorney General and Reporter; Frank Borger-Gilligan, Assistant

Attorney General; William L. Gibbons, District Attorney General; John Campbell, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts

A. Procedural History
In 1990, a Shelby County jury convicted the Petitioner of felony murder in the

perpetration of a robbery in the death of Royce D. Frazier. The jury originally imposed a

sentence of death finding that the following two aggravating circumstances outweighed any

mitigating evidence: (1) that the murder was especially heinous, atrocious, or cruel; and (2)

that the murder was committed during the perpetration of a felony. See T.C.A. § 39-2-

203(i)(5), (7) (1982). On direct appeal, the Tennessee Supreme Court affirmed the

conviction but set aside the death penalty and remanded the case for a new sentencing

hearing in light of State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). See State v. Bane,

853 S.W.2d 483, 483 (Tenn. 1993).

A new sentencing hearing was held where the jury again imposed a sentence of death.

The jury found that the following two aggravating circumstances outweighed any mitigating

evidence: (1) that the murder was especially heinous, atrocious, or cruel; and (2) that it was

committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or

prosecution of the defendant or another. See T.C.A. § 39-2-203(i)(5), (6) (1982). On appeal,

the Tennessee Supreme Court affirmed the sentence of death. See State v. Bane, 57 S.W.3d

411 (Tenn. 2001).

The Petitioner subsequently filed a petition seeking post-conviction relief. Following

an evidentiary hearing, the post-conviction court denied the Petitioner’s request for postconviction relief.

B. Facts From Guilt Phase

In the opinion in which the Tennessee Supreme Court concluded that the evidence

against the Petitioner was sufficient to sustain his conviction, but that the case must be

remanded for resentencing, the Court recited the facts against the Petitioner as follows:

[The Petitioner] was convicted of the first-degree felony murder of Royce D.

Frazier on 17 November 1988. Frazier was a widower in his early 60’s who

lived alone in the Frayser area of Memphis. A prime witness at the trial was

Thomas Lovett, the 16-year-old son of Donna Lovett, a co-defendant who was

tried separately. [The Petitioner] and Donna Lovett were living together in

Ripley, Tennessee. Shortly before the homicide Thomas Lovett, who had been

living with his father in Memphis, came to live with his mother and [the

Petitioner]. The boy testified that on Wednesday night, November 16, 1988,

the [Petitioner] and Ms. Lovett had been experimenting with putting Visine in

beer. They told his older brother Br[ian] to drink it, and when it put him to

sleep [the Petitioner] said, “All right, it worked.” On Thursday, November 17,

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1988, Thomas, his brother Br[ian], his mother and the [the Petitioner] drove

to Memphis to get the younger boy’s school records so he could enroll in

school in Ripley. They kept driving by a house in the Frayser area where the

[Petitioner] said they were going to borrow some money from a friend. After

driving by the house several times they finally saw a car at the house and

determined that someone was home. [The Petitioner] dropped Ms. Lovett off

at the corner, then took Br[ian] and Thomas to the home of Br[ian]’s girlfriend

where he left them. He later came back and picked up the two boys. The three

of them returned to Frayser to the house trailer residence. [The Petitioner] and

Br[ian] left Thomas there. They took [the Petitioner’s] car and returned to

Ripley. When Thomas awoke the next morning all three of the others were

there. He, [the Petitioner] and Br[ian] went shopping and [the Petitioner]

bought various articles of clothing for the three of them. [The Petitioner] told

Thomas he had borrowed six or seven hundred dollars. After they finished

shopping they went to a laundry and washed clothes. While they were driving

about they crossed a bridge, [the Petitioner] asked Thomas to hand him a paper

sack from the back passenger area where he was sitting. He handed the sack

to [the Petitioner] and he threw it out of the car, “but it missed the bridge.”

They backed up and retrieved the items which had fallen from the bag, threw

it over the bridge rail and then drove off. He thought the bag contained trash

but saw that it contained “a telephone and some balled-up paper and stuff like

that.” That night [the Petitioner], Br[ian] and Thomas went out driving. A

little later they dropped [the Petitioner] off at a bar. Br[ian] and Thomas

continued to drive around for awhile. Subsequently the two young men

returned and picked up [the Petitioner] and a female who he did not know. At

[the Petitioner’s] request they dropped him and the woman off at a motel and

they went home.

Br[ian] Lovett was classified as an accomplice by the trial judge. It was

his testimony that on 14 November 1988, he was living with his mother and

[the Petitioner] and was present when a discussion took place about obtaining

some money. His mother mentioned the name of a man named Royce Frazier.

[The Petitioner] said if they robbed the man they would have to kill him

because he knew my mother and would be able to turn her in. He testified he

had met Mr. Frazier at a café called the “Log Cabin” where his mother had

worked and Frazier was a regular customer. His mother remarked that Frazier

would be getting back in town soon and would have money when he got back

in town. He testified that during the discussion about killing Mr. Frazier he

mentioned that they could choke him. On November 16, when [the Petitioner],

his mother, his brother and he were returning from Memphis his mother put

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about three-fourths of a bottle of Visine in a beer and he chugged it down. He

did fall asleep. On the next day, 17 November 1988, the four of them drove

to Memphis to get his brother’s school records. They went out to Frayser

where they drove by . . . Frazier’s house to see if his car was there or not in

order to determine if he was at home. They stopped at a 7-11 store where they

called his father’s house and determined he was at home. They drove by

Frazier’s residence again and saw that he was there. They went to his father’s

house where they picked up some of Tommy’s clothes then returned to

Frayser. They dropped Ms. Lovett off on the corner close to the Frazier

residence and [the Petitioner] took him and his brother over to his girlfriend’s

house. He knew that his mother was supposed to be getting [Frazier] to sleep

so [the Petitioner] could go back and enter the house to get the money. [The

Petitioner] called about 8:30 and said the plans were just getting under way

and he was coming over to pick up him and his brother to take them back to

Ripley. The three of them returned to Ripley where they left his brother. He

and [the Petitioner] returned to Frayser. When they reached Frazier’s house

the front porch light flickered and they pulled up in the driveway. This was a

signal from his mother for [the Petitioner] to come in. [The Petitioner] started

walking toward the house then returned to the car. They pulled out of the

driveway, drove around the block a couple of times and parked on the street

corner near Frazier’s house. They waited for about five (5) minutes and then

the light flickered on and off again. [The Petitioner] got out of the car and

walked into the house. He said it seemed as if he waited at least two (2) hours

and he was getting scared because he knew what was going on and knew his

mother was in the house. He was scared for her. He got out of the car and

walked halfway up the driveway to the house when a dog barked in the back

yard. This frightened him and he returned to the car. In approximately 10

minutes his mother and [the Petitioner] came running out of the house toward

the car. He got out of the front seat and opened the door on the passenger side

to get in the back. It frightened his mother because she didn’t know that he

was in the car. They were carrying a shotgun, a stereo, a bunch of telephones,

a pack of cigarettes, a lighter, a white shirt, and a camera in a black case. They

put all of these items in the back passenger compartment and drove off headed

back to Ripley. As they were driving along [the Petitioner] commented, “I did

such a good job, I deserve a beer.” They stopped at a convenience store to get

a beer and then continued their journey. They stopped again at a bridge where

he was told to throw some telephones, the cigarettes, the lighter and a few

other things from the bridge. They drove further when his mother realized she

had [Frazier’s] wallet. They pulled over to the side of the road, put the wallet

in a paper sack, poured brake fluid on it and set it on fire and burned the

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wallet. On the way back to Ripley, [the Petitioner] told him that when he went

into Frazier’s house [Frazier] was in the bathroom and he stood in the living

room waiting for him to come out. When [Frazier] came out, “He said that he

hit [Frazier] with all he had and all he did was fall down and get right back up.

And he had told me, that he had tried, that he had his hands in [Frazier’s] pants

cutting his nuts and that he put a cord around [Frazier’s] neck and that my

mother had put a plastic bag over [Frazier’s] head, and that they had put him

in a bathtub full of water.” [The Petitioner] told him he got $726 from

[Frazier]. He knew [the Petitioner] had a knife that night because he had given

it to [the Petitioner] while he was taking him and his little brother over to his

girlfriends. When they arrived at the trailer Tommy was asleep. He tried to

go to sleep and dozed off. About 2:30 he was awakened by his mother. She

was crying and he referred to her as hysterical. Eventually she returned to bed.

When he awakened in the morning his mother, [the Petitioner] and his brother

had already had breakfast and were preparing to go to the laundromat. He

remained at the trailer and at some time threw away the jacket [the Petitioner]

had worn the night before because it had blood on it. When the others returned

he, [the Petitioner] and Tommy went to a country and western store in

Dyersburg where [the Petitioner] bought boots and clothing for the two boys

and for himself. The total bill was $228 which he paid in cash. That night he,

[the Petitioner] and Tommy went out driving. He and [the Petitioner] noticed

that there was a paper sack in the car containing a phone and also a cord which

he said [the Petitioner] had used to strangle [Frazier]. They did not want

Tommy to know what they were doing so they put garbage in the top of the

paper sack which they intended to throw off a bridge while he drove across it.

Bryant threw it out and missed. They turned around, drove back, got out and

threw it over the bridge. They told his brother it was trash. They took [the

Petitioner] to a place called “The Loafers Lounge” where they waited while

[the Petitioner] was inside. When he returned about an hour later he had

Joanie with him. Bryant and Tommy then took the Petitioner] and Joanie to

a motel. He and Tommy went to Dyersburg where they got something to eat

and played some video games. They then went home. His mother asked

where [the Petitioner] was and he told her he had dropped him and Joanie off

at a motel. His mother appeared hurt and angry at [the Petitioner]. He took

her to the motel and showed her where [the Petitioner] and Joanie were. He

watched her while she made two calls from a pay phone in front of the motel.

She called the Memphis police and also Sheriff Durham. The sheriff came to

the motel where he talked with his mother. Sheriff Durham then told him to

follow them back to the sheriff’s station.

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There was other evidence in the record that personnel in the Memphis

Police Department received a telephone call from a woman at approximately

2:30 a.m. on the morning of November 19, 1988. As a result officers initiated

an investigation at 3320 Madewell, Frayser, the residence of Royce Frazier, to

determine if he was dead. The police found Mr. Frazier’s dead body in the

bathtub. The tub was almost full of water. There was a clear plastic bag over

his head and what appeared to be an electrical cord around his neck. There

was a gag in his mouth which was tied behind his head. A bathroom type

plunger with a rubber suction on it was over his head.

Sheriff Wilford Durham testified that he arrested Donna Lovett in front

of the Walker Motor Court in Ripley where she was talking on the telephone

to a representative of the Memphis Police Department. After talking to the

Memphis officer he also arrested the [Petitioner] who was found in Room 22

of the Walker Motor Court with a young lady named Joanie Sanderson.

Dr. Richard Harruff testified that he performed the autopsy on the body

of Royce Frazier. When he first saw the body on November 19, 1988 he

observed injuries to the head and neck. There was an electric cord tied around

his neck, a plastic bag over his head and a gag in his mouth. His findings

indicated that Mr. Frazier had died of ligature strangulation with other

possibilities of asphyxia. Asphyxia is a general term which means a

mechanism of dying in which the oxygen is cut off from the body tissues, by

cessation of blood flow which cuts off the supply of oxygen and blood to the

brain. This could have been caused by the electric cord around his neck,

suffocation from the plastic bag over his head, or choking on his tongue which

was shoved back in his throat by the tight gag in his mouth. There were

bruises on the neck and the skin underlying the cord and other bruising about

both eyes. There was bruising and lacerations to the left cheek and left upper

lip. There were two areas of bruising on the right scalp area of the head.

There were other bruises about the forearms and wrists.

Items of evidence found in [the Petitioner’s] automobile included a .12

gauge shotgun, an AM/FM stereo radio, a camera, and a leather vest, all of

which were the property of the deceased.

Bane, 853 S.W.2d at 484-87. Based upon this evidence, the jury convicted the Petitioner of

first degree felony murder, and the Tennessee Supreme Court affirmed the sufficiency of the

evidence supporting his conviction. Id. at 487, 490. In light of the Middlebrooks opinion,

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filed shortly before the Supreme Court received the Petitioner’s direct appeal, the Supreme

Court remanded the case for a new sentencing hearing. Id. at 489.

C. Facts From Resentencing Hearing

Upon remand, the trial court held a resentencing hearing. The Tennessee Supreme

Court summarized the facts presented therein as follows:

On November 19, 1988, police found the body of the victim, Royce D.

Frazier, age 60, lying in a bathtub full of water in his home near Memphis,

Tennessee. Frazier had been gagged; a plastic bag had been placed over his

head; and an electric cord was tied around his neck. A plunger had been

placed over his face apparently to keep his head submerged. Frazier’s house

had been ransacked: several lamps and ashtrays had been overturned and

numerous items were scattered in disarray.

Brian Lovett, who was 16 at the time of the offense, testified that his

mother, Donna Lovett, and the [Petitioner], John Michael Bane, had discussed

a plan to rob the victim several days before he was killed. The plan was for

Donna Lovett to visit Frazier, who she knew, and render him unconscious by

putting Visine eye drops in his beer. [The Petitioner] would then enter

Frazier’s home and carry out the robbery with Donna Lovett. According to

Brian Lovett, [the Petitioner] said that Frazier would have to be killed because

he “knew [Lovett] and would tell on her.” Brian Lovett said that he and [the

Petitioner] discussed choking or stabbing the victim.

On the day after the robbery plan discussion, Donna Lovett and the

[Petitioner] experimented by giving Brian Lovett a beer containing eye drops

to see whether it would render him unconscious. Brian Lovett testified that it

caused him to fall asleep within five minutes of drinking the beer. Thomas

Lovett, Brian’s younger brother, also testified that he recalled Brian drinking

a beer containing eye drops.

Sometime in the late afternoon of November 17, 1988, [the Petitioner],

accompanied by Donna Lovett and her two sons, Brian and Thomas Lovett,

drove his car past Frazier’s home several times, but no one appeared to be

home. [The Petitioner] explained that he was going to borrow money from the

occupant. When they saw Frazier’s car at the home, Donna Lovett got out of

the car and went into the house alone. [The Petitioner] then left and drove

Brian and Thomas to Brian’s girlfriend’s home. A short time later, [the

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Petitioner] picked up the boys and took them to the Lovetts’ trailer in Ripley,

Tennessee. Thereafter, [the Petitioner], along with Brian Lovett, returned to

Frazier’s home. When Donna Lovett signaled by “flickering” the porch light

on two occasions, [the Petitioner] entered Frazier’s home, leaving Brian Lovett

in the car.

According to Brian Lovett’s testimony, approximately thirty minutes

later [the Petitioner] and Donna Lovett ran to the car carrying several items of

Frazier’s property. [The Petitioner] had blood on his gloves and Donna Lovett

was crying and upset. While driving from the scene, [The Petitioner] told

Brian that he had beaten the victim several times because he kept getting up

and that he had “cut [the victim’s] nuts off.” [The Petitioner] also said that he

had taken $726 and that he “had done such a good job he deserved a beer.”

[The Petitioner] was arrested two days later when Donna Lovett reported the

events of November 17, 1988 to the police.FN1

FN1 The evidence indicated that Donna Lovett reported the

events to authorities after she learned that the defendant was at

a motel with another woman on the day after the offense.

Brian Lovett testified that his sister committed suicide several months

before the killing of the victim and that he himself attempted suicide on two

occasions before November 17, 1988. He admitted that he had been treated

at Charter Lakeside and Memphis Mental Health Institute and that he had a

history of using cocaine, speed, marijuana, and alcohol. Lovett also admitted

that he had made conflicting statements about the murder. In one statement,

he had told authorities that he had looked in Frazier’s window and saw [the

Petitioner] holding a knife to the victim’s groin while Donna Lovett placed a

bag over the victim’s head. He did not recall why he had made the statement

and conceded that he had never left [the Petitioner’s] car. Lovett testified that

he had been arrested for theft after [the Petitioner] was convicted and that he

had been placed in the same prison cell as the defendant. He conceded that he

signed a statement that he had lied at trial because he feared the [Petitioner].

Dr.Jerry Francisco, Shelby County Medical Examiner, testified that the

cause of the victim’s death was ligature strangulation with asphyxia. The

combination of the cloth gag, plastic bag, and electrical cord had cut off the

supply of blood to the victim’s brain and the supply of oxygen to his lungs.

The victim’s tongue had been pushed into the back of his mouth from the cloth

gag. Dr. Francisco stated that the victim could have been rendered

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unconscious in seconds or minutes, depending on the severity and force of the

ligature strangulation, but that the victim’s death required several minutes. Dr.

Francisco testified that the victim had extensive bruising around his eyes, head,

neck, arms, and hip; a tear and scrape below his left knee; and abrasions

around his neck. There was no evidence of injury to the victim’s groin area or

scrotum. Dr. Francisco testified that fluid found in the victim’s lungs are

consistent with a finding that the victim had been alive when placed in the

water.

The [Petitioner] called several witnesses to testify on his behalf. Brian

Lovett identified the handwriting of Donna Lovett in two letters that she had

written to [the Petitioner] after the murder. One of the letters indicated that

Brian Lovett had lied at trial and was coerced by the prosecution. Donna

Lovett also wrote that only she and [the Petitioner] knew what happened in

Frazier’s home.

Wilma McNeil, the [Petitioner’s] aunt, testified that [the Petitioner] had

been “very close” to his mother, who died of cancer in April of 1988. McNeil

testified that [the Petitioner] had grown up working on a farm. She stated that

she loved [the Petitioner] and asked the jury to spare his life. Maybelle

Cunningham, also an aunt of the [Petitioner], testified that both of [the

Petitioner’s] parents were deceased. Cunningham testified that [the Petitioner]

had two sons, ages 14 and 10.

Marvin Ramey testified that [the Petitioner] had worked on his farm

when he was young and was a good worker. Ramey testified that his wife

looked after [the Petitioner] and that he had never caused any trouble.

Teresa Goforth, a co-worker of [the Petitioner] and Donna Lovett at

J.P.W. Enterprises, testified that [the Petitioner] was a good, hard worker. She

testified that [the Petitioner] and Donna Lovett were dating and that Lovett

was extremely jealous. About one week before the murder, Donna Lovett told

Goforth that “if she couldn’t have [the Petitioner], no one would and that she

would see him locked away so far he would never get out.”

Alicia Shadell Gray, Bane’s cousin, likewise testified that Donna Lovett

was very possessive and jealous. Three weeks before the murder, Gray heard

Lovett say, “If I can’t have [the Petitioner], no woman will have [the

Petitioner], and I’ll see us both behind bars.” Donna Lovett attempted suicide

later that day at Gray’s home by overdosing on pills, and [the Petitioner] took

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her to the emergency room. Gray testified that after [the Petitioner] was

convicted, Brian Lovett told her that his mother had agreed to plead guilty in

exchange for a sentence of 35 years and that he did not want to see “an

innocent man” go to prison. He said he planned to write an affidavit stating

that [the Petitioner] had no part in the offense.

Diane Bane testified that she met [the Petitioner] while he was in prison

and fell in love with him after talking regularly to him on the telephone. She

married [the Petitioner] in March of 1995 and travels 200 miles round trip

every Saturday to visit him. Her former husband died in August of 1994, and

she had three sons from that marriage.

Bane, 57 S.W.3d at 416-18. Based upon the evidence presented at resentencing, the jury

found the evidence supported two aggravating circumstances: (1) that the murder was

“especially atrocious or cruel in that it involved torture and depravity of mind”; and (2) that

the murder was “committed for the purpose of avoiding, interfering with or preventing a

lawful arrest or prosecution of the defendant or another.” See T.C.A. § 39-2-203(i)(5)-(6)

(1982); Bane, 57 S.W.3d at 418-19. After further finding that the aggravating circumstances

outweighed the evidence of mitigating circumstances, the jury imposed a sentence of death.

Id. at 419.

D. Post-Conviction Facts

The Petitioner then filed a petition for post-conviction relief, alleging among other

things that he received the ineffective assistance of counsel during his trial and during his

resentencing hearing. The post-conviction court held a hearing on the petition, and the

record from that proceeding indicates that the Petitioner was represented during his trial and

on direct appeal by two attorneys, Brett Stein and Craig Hall. At the resentencing hearing

and the appeal of the trial court’s denial of his request for resentencing, the Petitioner was

represented by Charles Kelly, Sr., and Joseph Ozment. Each of these four attorneys, along

with several other witnesses, testified at the Petitioner’s post-conviction hearing.

Lieutenant Sheffield and Sheriff Durham, two police officers involved in the

investigation of Frazier’s death, testified at the post-conviction hearing that they received a

call during the night from Donna Lovett about Frazier’s death. Sheriff Durham testified that,

when Lovett initially called, she told the sheriff that the Petitioner was at Walker Motor

Court Motel with another woman. Sheriff Durham said he informed her that the Petitioner

was not committing a crime, after which Donna Lovett informed him that she and the

Petitioner had robbed and killed a man at his residence in Frayser. Sheriff Durham instructed

Donna Lovett to come to the jail, and, when she failed to arrive, Sheriff Durham drove to

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Walker Motor Court where he saw her talking on a pay phone. Donna Lovett spoke into the

telephone, saying that Sheriff Durham had arrived and then handed the phone to the sheriff.

The sheriff took the phone and learned that an officer from the Memphis Police Department

was on the other end of the phone line, and the officer and the sheriff discussed Lovett’s

allegations. They agreed that Memphis police officers would go to the house where the

alleged murder had taken place and that Sheriff Durham would have an officer remain at the

motel where the Petitioner was staying.

Sheriff Durham testified that, when Memphis police officers arrived at the house in

Frayser described by Lovett, they discovered the body of a man later identified as Royce D.

Frazier. The body was in the exact condition described by Lovett. The Memphis police

officers then contacted Sheriff Durham and confirmed the homicide. Sheriff Durham took

Lovett to jail, and he then returned to the motel and retrieved a pass key to the Petitioner’s

room from the manager. Because Lovett had informed Sheriff Durham that the Petitioner

had a shotgun and had said he “was not going back to the penitentiary,” Sheriff Durham

knocked cautiously on the door of the Petitioner’s motel room. When the Petitioner did not

respond, the sheriff used the pass key to enter the room where he found the Petitioner and a

woman asleep in bed. Sheriff Durham placed handcuffs on the Petitioner and took him into

custody.

During the initial telephone calls, Donna Lovett described to the sheriff and the

lieutenant the vehicle that she and the Petitioner had used during the homicide and told them

where the vehicle was located. She informed them both that items taken from the victim’s

home, including a gun, were in the vehicle. Officers from the Sheriff’s Department located

the vehicle parked in a trailer park as described by Donna Lovett, and the sheriff recalled

seeing a “long gun” inside the vehicle. Sheriff Durham testified that the two Memphis

investigators obtained the Petitioner’s consent to search the vehicle and then had the vehicle

transported to a garage in Memphis where they conducted an inventory search of the vehicle.

Sheriff Durham stated that, although they did not remove any items from the vehicle, he

recalled seeing a “long gun” inside the vehicle.

As part of the investigation, Lieutenant Sheffield took written statements from

Thomas and Brian Lovett, Donna Lovett’s sons. In his first statement, Brian Lovett

maintained that he did not see what had occurred inside Frazier’s residence but had learned

of it through the Petitioner and Donna Lovett. Brian Lovett subsequently gave a second

written statement in which he disclosed that he looked through one of Frazier’s windows and

observed what had occurred, a fact he did not disclose in his original statement.

Lietenant Sheffield could not recall whether he had spoken to the Petitioner’s trial

counsel or any other attorney regarding this case, except for the prosecutor.

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Brett Stein, who represented the Petitioner at trial, testified that he had been licensed

to practice law in Tennessee since 1963 and that his practice primarily consisted of criminal

defense. When Stein was appointed to represent the Petitioner in 1989, he represented two

or three other defendants in trials where the State was seeking the death penalty. Stein

recalled that, in 1989, the training in death penalty cases was not as significant as it is

currently, and he stated that the standards for representing a defendant in a death penalty case

have changed since that time.

Stein testified that his file on the Petitioner’s case was destroyed in a fire and that he

did not independently recall the number of times he met with the Petitioner. He, however,

stated that he met with the Petitioner as often as he believed was necessary in order to

prepare the case for trial. He further stated that he had a “good” relationship with the

Petitioner, whom he described as cooperative and lucid and as assisting Stein in developing

issues for trial.

According to Stein, the Petitioner maintained that he was not present when Frazier

was killed and was not involved in his death. Stein noted that the Petitioner never gave a

statement of admission to the police. Accordingly, Stein prepared and presented the defense

theory that the State could not prove its case beyond a reasonable doubt. He did not attempt

to establish that someone else killed the victim.

Stein conceded he did not seek funds to hire an investigator, a mitigation expert, or

a pathologist. He instead interviewed all the witnesses, including persons the State listed as

witnesses whom the State intended to call at trial. Stein also subpoenaed several of these

witnesses.

Stein recalled that he filed a motion to suppress the evidence about the items from

Frazier’s home that officers found in the trunk of a vehicle that police located at a trailer park

where the Petitioner was staying with Donna Lovett. The items found in the car were

confirmed to have been taken from Frazier’s house. He recalled that the trial court held an

evidentiary hearing on the motion but that the motion was ultimately denied. Stein agreed

he did not raise in the motion to suppress the issue of the legality of the initial seizure of the

vehicle and did not inquire into whether the vehicle was in operating condition or had been

recently serviced. Further, he stated that the State never proved at trial that the vehicle

belonged to the Petitioner. The State did, however, assert at trial that the car belonged to the

Petitioner and that the evidence found inside the car tied the Petitioner to the crime scene.

Stein testified that Brian Lovett’s credibility was a key issue at trial, in part because

Brian Lovett admitted to participating in the planning of the homicide. While Stein assumed

that the State had made a “deal” with Brian Lovett, the prosecutor never told him that the

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State had granted Brian Lovett immunity in exchange for his testimony at trial. Stein

categorized such evidence as exculpatory and stated that the prosecutor would have provided

the information if such a deal existed. Stein assumed that the State also gave Donna Lovett

a “deal”; however, the prosecutor never stated that the State had entered into an agreement

with her.

Stein testified that, when he cross-examined Brian Lovett, he focused upon Brian

Lovett’s inconsistent statements to the police and his admitted participation in the homicide.

Stein said he received as part of discovery Brian Lovett’s mental history, which included

records indicating that he had been hospitalized a few weeks before this incident because he

was suicidal. Stein did not recall whether Brian Lovett had a history of using cocaine,

marijuana, or alcohol and he agreed that a history of drug use would have been relevant to

Lovett’s credibility. Stein agreed he did not hire a psychologist to review Brian Lovett’s

mental health records and did not recall speaking to Laura Quinn, Brian Lovett’s girlfriend

at the time of the murder. Stein did not recall receiving information regarding an incident

in which Brian Lovett was involved in an altercation with the victim before the homicide.

Stein said that the trial court instructed the jury that Brian was an accomplice, and so Stein

argued to the jury that, because Brian Lovett was an accomplice, the jury could not convict

the Petitioner based upon Lovett’s testimony alone. He further argued that the State had

offered insufficient evidence to corroborate Brian Lovett’s testimony.

Stein testified that he did not request fingerprint analysis or DNA testing on cigarette

butts, beer cans, and other physical evidence collected at the scene of the homicide. Rather,

Stein argued that the State could not connect any of the physical evidence collected from the

scene to the Petitioner. Stein said he also did not meet with the coroner before trial, as he did

not believe that the cause of Frazier’s death was at issue. He did, however, review the

medical examiner’s report and visited the scene of the homicide.

Stein testified that the Petitioner had prior convictions, which the State could have

questioned him about had he testified at trial. Stein further testified that in questioning

mitigation witnesses during the penalty phase, he had to exercise caution to avoid opening

the door to the admission of the Petitioner’s prior record, which included convictions for

crimes of violence.

Craig Hall testified that he was co-counsel during the Petitioner’s trial, with his

primary duty being to assist Stein during the trial. At the time of his appointment, Mr. Hall

had practiced law for sixteen years, and approximately eighty percent of his practice

consisted of criminal defense. Hall had tried multiple second degree murder cases, but the

Petitioner’s case was his first capital defense case. Hall said he participated in interviewing

witnesses and that he also made the closing argument in the penalty phase of trial. Hall

-13-
discussed with Stein the trial strategy, whom to call as witnesses, and how to approach the

State’s witnesses. Hall further stated that, in part because the Petitioner maintained his

innocence throughout Hall’s representation, the theory of the defense was that the Petitioner

was not involved in the homicide.

Charles Kelly, Sr., testified he was retained to represent the Petitioner at the

resentencing hearing. At the time of the post-conviction hearing, Kelly had been practicing

law for thirty-seven years and had represented clients in twenty-five to thirty murder cases.

The post-conviction court allowed Kelly to testify as an expert in the community standards

for capital defense representation. In that regard, Kelly testified that in the late 1980s, more

procedural safeguards and death penalty training for attorneys came into existence. At the

time of the guilt phase of the Petitioner’s trial, the American Bar Association guidelines

mandated that an investigator be hired and that the State provide funds and a mechanism to

obtain an investigator. Kelly stated that, in his view, an attorney’s failure to retain an

investigator in a capital case violated the standards of competent representation.

Kelly opined that Brian Lovett’stestimony was of greatsignificance to the Petitioner’s

conviction and that the Petitioner’s trial counsel could have done a better job crossexamining him. Kelly thought that the Petitioner’s trial counsel could have pursued valid

impeachment avenues regarding Brian Lovett’s mental health history, history of drug use,

prior acts of violence, and any agreement Lovett had made with the State. Kelly did not,

however, recall seeing a written immunity agreement between Brian Lovett and the State.

Kelly also took issue with the fact that the Petitioner’s trial counsel did not file a motion to

suppress specifically challenging the initial seizure of the Petitioner’s vehicle. Kelly did not

believe that anyone inspected the car at the time of the Petitioner’s trial to determine whether

it was operational.

About his own representation of the Petitioner, Kelly testified that in order to prepare

for the resentencing hearing he reviewed the transcript from the guilt phase of the trial. Kelly

filed motions for appointment of co-counsel and for funds to hire an investigator, eventually

hiring Ronald Lax as the investigator. At the time of the Petitioner’s resentencing in 1997,

Donna Lovett was on work release, and, while the prosecutor had written a letter on her

behalf to the parole board, Donna Lovett was not cooperating with the prosecution. In fact,

she had written letters to the Petitioner, which Kelly used during the resentencing hearing to

impeach Brian Lovett’s testimony and to establish that he had lied in court. Kelly also

attacked the inconsistencies in Brian’s statements, his mental health problems, and his drug

problems.

During the resentencing hearing, Kelly also attempted to call into question the medical

examiner’s testimony about the victim’s cause of death. He said that, at trial, the medical

-14-
examiner did not provide an accurate depiction of the victim’s cause of death because the

autopsy showed no water in the victim’s lungs. This, he argued, contradicted the State’s

theory that the Petitioner and Donna Lovett used a toilet plunger to hold the victim

underwater repeatedly or for a period of time sufficient to drown the victim. Kelly stated that

retaining a pathologist to testify that the victim did not drown could have made a difference

in the guilt phase and that such evidence could also have been used to attack the heinous,

atrocious, or cruel aggravating factor and would be of the most importance during the penalty

phase.

To prepare to call the medical examiner’s testimony into question during the

resentencing hearing, Kelly consulted with Dr. Kris Sperry, a pathologist in Atlanta, Georgia.

Kelly recalled that, during the resentencing hearing, the medial examiner testified that there

was no water in the victim’s lungs but that the victim had a small amount of phlegm or liquid

in his bronchial tubes, which could have established drowning. Kelly explained that he was

unable to present Dr. Sperry’s testimony because the doctor had to return to Atlanta, and

Kelly did not believe that Dr. Sperry’s testimony would be effective given the medical

examiner’s adamant testimony that the victim drowned. Kelly further recalled that, during

the medical examiner’s testimony, one of the jurors, who was a physician, “nodd[ed] his

head.”

Kelly discussed with the Petitioner which witnesses to call for mitigation evidence.

Kelly wanted to present proof about the Petitioner’s mother’s alcohol use because studies

have suggested that alcoholism is hereditary. Therefore, when a person with that trait

becomes intoxicated, the issue is whether the intoxication is voluntary or involuntary. The

Petitioner refused to allow him to present such evidence.

Kelly did, however, present the testimony of the following people to attempt to

persuade the jury not to sentence the Petitioner to death: Wilma McNeil, the Petitioner’s

aunt; Marvin Ramey, the Petitioner’s former employer; and Teresa Goforth, a former coworker. Kelly stated that these witnesses were discovered through a combination of

interviews with the Petitioner and his wife, a review of the trial counsel’s file, and an

investigation by Ronald Lax.

Kelly testified that, during both the penalty phase of the first trial and at re-sentencing,

the trial court gave an improper jury instruction regarding the burden of proof for aggravating

and mitigating factors and the weighing of such factors. Kelly stated that there was no

objection to these instructions, and the issue was not raised in the motion for new trial or on

appeal. Kelly added that, before the resentencing hearing, he unsuccessfully attempted to

settle the case for a life sentence.

-15-
Joseph Ozment testified he was appointed as second chair to represent the Petitioner

at resentencing. Ozment, who had practiced primarily criminal defense law since 1992, said

he was certified to represent defendants in capital cases and had been involved in capital case

defense since 1994 or 1995. Ozment opined that the failure to hire an investigator in any

capital murder case was unacceptable under the applicable standards because an investigator

has expertise in locating people and taking statements. Further, an investigator can assist in

creating a social history for the entire family of the accused, which is needed for mitigation

purposes.

Ozment testified ethical considerations also exist if a witness changed his or her story

because, in this event, the attorney who interviewed that witness may become a witness for

trial purposes. Ozment testified that the State is required to list its witnesses on the back of

the indictment. When and if counsel filed a motion for a witness list, the State generally

responds that its witnesses are listed on the back of the indictment and that they have an

open-file policy allowing defense counsel to discover those witnesses.

Ozment recalled that he and Kelly utilized the services of Dr. Sperry, a pathologist

from Atlanta, Georgia. The trial court denied their request to allow Dr. Sperry to be present

during the testimony of the State’s medical examiner. Thus, he said the defense was forced

to address the issue of whether the victim was drowned during the cross-examination of the

medical examiner.

Ozment stated that Brian Lovett’s testimony was critical to the State’s case in both the

guilt and penalty phases. While Brian was never charged with a crime, even though he was

involved in the victim’s death, Ozment was not aware of any promises of immunity made by

the State to Brian. Ozment, however, attempted to utilize the perception that the State was

treating Brian favorably during the resentencing hearing. Ozment and Kelly also used

Brian’s mental health history and history of drug and alcohol abuse to impeach histestimony.

Ozment recalled that Brian testified at both the original trial and at the resentencing

hearing that he had told Laura Quinn, his then girlfriend, about the plan to rob and kill the

victim. Quinn, however, denied that Brian ever told her of the plan. Ozment stated that,

although he did not call Quinn as a witness at the resentencing hearing because he felt Brian

had been sufficiently impeached, she would have been a good witness to call at the guilt

phase. Ozment stated he did not call Quinn in part because he believed that the introduction

of too much residual doubt evidence after the Petitioner had already been found guilty could

inflame the jury.

Laura Quinn Dolan testified that she dated Brian Lovett in 1988 when she was

seventeen years old. Dolan was unsure whether she saw Brian on November 17, 1988, the

-16-
day the victim was killed. She recalled an occasion when Brian and Thomas came to her

house and Brian told her that he was going with Ms. Lovett and the Petitioner to Frayser.

Dolan maintained that Brian never told her that either he, Ms. Lovett, or the Petitioner

planned to rob or kill the victim.

Dolan testified that she learned of the homicide when Brian called her and stated that

his mother’s boyfriend had murdered someone. Dolan did not recall what day the murder

occurred or what day Brian and Thomas went to her house. She was also unsure of the dates

in 1997 when she spoke to an investigator. Dolan recalled that Brian had told her that he was

afraid that the Petitioner would send someone to hurt him.

Ronald Lax testified he was a private investigator for Inquisitor, Inc., who was

retained with regard to the Petitioner’s resentencing hearing. Lax’s job was to develop

evidence of the Petitioner’s innocence to be used as mitigating evidence during his

resentencing hearing. Dr. Einstein in Nashville was in charge of investigating the remaining

mitigating evidence.

Lax testified he reviewed documentation provided by counsel consisting of trial

transcripts and statements of witnesses. Lax cross-referenced Brian Lovett’s statements to

the police with his testimony at trial and found five to ten inconsistencies in his testimony.

Lax recalled that Brian testified that he told Dolan of the plan to rob and kill the victim but

that Dolan denied Brian told her of the plan. He recalled Dolan did not testify during the

guilt phase or at the resentencing hearing.

Lax said he also interviewed Kay Lowry, the owner of the Log Cabin Restaurant from

1976 to February 1988. Lowry stated that she caught Brian Lovett stealing from her on one

occasion. During his interview with Lowry, Lax developed information regarding an

incident at the Log Cabin Restaurant during which a younger man, who accompanied Donna

Lovett, got into an altercation with the victim and struck the victim. The incident occurred

weeks or months prior to the victim’s murder.

Lax testified he also interviewed Gary Whitney, who stated that the victim would

frequent the Log Cabin Restaurant, drink quite a bit of alcohol, and “flash” money. Whitney

recalled an altercation between the victim and a young man. Whitney did not know the

identity of the young man and stated that the altercation occurred anywhere from three

months to one year prior to the victim’s death.

Thomas Henderson, the Assistant District Attorney General who prosecuted the

Petitioner, testified that, before the trial, District Attorney General Hugh Stanton offered Ms.

Lovett forty years of incarceration and the Petitioner sixty years of incarceration. Ms.

-17-
Lovett’s offer was later reduced to an offer of thirty-five years, which she accepted. The

offer made to Ms. Lovett was not contingent on her testifying against the Petitioner.

General Henderson testified that he spoke to Ms. Lovett after she entered her plea and

that she expressed loyalty toward the Petitioner. As a result, General Henderson decided not

to call her as a witness in the Petitioner’s initial trial. General Henderson visited Ms. Lovett

at the penitentiary sometime between the Petitioner’s initial trial and the resentencing

hearing. Ms. Lovett appeared cooperative and stated that she was willing to testify against

the Petitioner. General Henderson, however, decided not to call her as a witness as she had

previously written letters to the Petitioner expressing her loyalty to him.

General Henderson testified that the State had not made an agreement with Ms. Lovett

in exchange for her guilty plea. The general did not recall writing a letter to the parole board

on Ms. Lovett’s behalf. He stated that, if he did write such a letter, it was neither contingent

upon Ms. Lovett’s agreeing to testify nor was it at Brian Lovett’s request. General Henderson

denied, however, that Brian Lovett’s testimony was conditioned upon the letter.

General Henderson recalled that, at the time that the Petitioner was indicted, the grand

jury section of the District Attorney General’s office prepared the indictments without the

input of the prosecuting attorney. The grand jury had not indicted Brian Lovett when

General Henderson was assigned the Petitioner’s case. General Henderson testified that,

after he reviewed the case, he also did not seek an indictment against Brian Lovett. General

Henderson maintained that this decision was based not upon Ms. Lovett’s guilty plea but

upon his belief that Brian Lovett made a better witness than a defendant. Further, General

Henderson said that because of Brian Lovett was a juvenile when the murder occurred, he

would have been a sympathetic defendant. Further, Brian Lovett’s older sister committed

suicide, and he suffered from emotional issues as a result of her suicide. General Henderson

further explained:

And this particular incident his father, I think, had just kicked him out of the

house. He went to live with his mother who had thrown away her career and

her life for some prisoner she’d help escape, that being the [Petitioner], from

the penitentiary and then her and her new criminal boyfriend were talking

about killing and robbing people and I felt like he really never had much of a

chance.

General Henderson testified that he called Brian Lovett as a witness during the guilt

phase and that Brian Lovett admitted during direct examination that he had lied to the police.

General Henderson explained:

-18-
[When a witness has previously lied] can be an important issue, unless it is

explainable, or there are other factors to consider. The problem that [] Stein,

I think, was facing in the strategy point of view is cross-examining a seventeen

year old who had been victimized by his mother and the defendant. He made

a very sympathetic figure and you’ve got to be careful about jumping on

somebody like that in front of the jury when your client’s facing death.

General Henderson noted that Stein questioned Brian Lovett for almost one hundred pages

of the transcript and that much of Stein’s cross-examination addressed the inconsistent

statements.

General Henderson testified that, during the years between the Petitioner’s initial trial

and his resentencing hearing, Brian Lovett was arrested and housed in the same area as the

Petitioner. Brian Lovett contacted General Henderson and expressed his fear of the

Petitioner and stated that the Petitioner had convinced him to sign an affidavit claiming that

his testimony at the Petitioner’s trial had been fabricated. Brian Lovett later provided

General Henderson with a statement in which he maintained that he was coerced into signing

the affidavit and affirmed that his original testimony at trial was true. General Henderson

recalled that the affidavit was addressed at the resentencing hearing.

After the hearing, the post-conviction court entered a ninety-nine-page order

dismissing the Petitioner’s petition for post-conviction relief. It is from this judgment that

the Petitioner now appeals.

II. Analysis

The Petitioner contends that the trial court erred when it dismissed his petition for

post-conviction relief. He asserts that he is entitled to post-conviction relief because he

received the ineffective assistance of counsel during his original trial and at his resentencing

hearing, as will be detailed below. He also asserts that he should be granted post-conviction

relief because the trial court erred when it instructed the jury at the original trial and at the

resentencing hearing. Finally, the Petitioner contends he should be granted post-conviction

relief because the death penalty is unconstitutional.

In order to obtain post-conviction relief, a petitioner must show that his or her

conviction or sentence is void or voidable because of the abridgment of a constitutional right.

T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations in

the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-

110(f) (2006). Upon our review, the trial judge’s findings of fact are given the effect and

weight of a jury verdict, and this Court is “bound by the trial judge’s findings of fact unless

-19-
we conclude that the evidence contained in the record preponderates against the judgment

entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,

this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the

credibility of witnesses, the weight and value to be given their testimony and the factual

issues raised by the evidence are to be resolved by the trial court judge, not the appellate

courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,

578-79 (Tenn. 1997). A post-conviction court’s conclusions of law, however, are subject to

a purely de novo review by this Court, with no presumption of correctness. Fields v. State,

40 S.W.3d 450, 457 (Tenn. 2001).

A. Originally Alleged Grounds For Post-Conviction Relief

In the first section of the Petitioner’s brief, before the “argument” section, the

Petitioner states, “Petitioner Bane is pursuing multiple claims in support of post-conviction

relief. His claims and the corresponding rulings by the post-conviction court are as follows:

. . . .” The Petitioner’s brief then lists, in bullet point form, one sentence describing each of

the allegations he made in his post-conviction petition. Each bullet point is followed by the

post-conviction court’s corresponding findings denying post-conviction relief based upon

that allegation. The only citation to the record contained in this section of the Petitioner’s

brief is to the post-conviction court’s written ruling. In this section, the Petitioner offers no

other citations to the record, no citation to any legal authority, and no argument to support

that he is entitled to relief based upon these allegations. In the following section, the

“argument” section, the Petitioner expounds only upon his counsels’ failure to file a motion

to suppress, issues related to the court’s instructions to the jury, and to the constitutionality

of his sentence. We could properly deem the issues not properly briefed waived by the

Petitioner. See Tenn. Ct. Crim. App. R. 10(b) (“[i]ssues which are not supported by

argument, citation to authorities, or appropriate references to the record will be treated as

waived in this court.”).

At risk in this case, however, is this Petitioner’s life. The gravity of that is not lost

upon this Court. While we find the Petitioner’s brief in this case wholly inadequate on the

majority of these issues, we will nonetheless review the merits of each of the allegations

raised in bullet point form after the facts section of the Petitioner’s brief:

• Trial counsel conducted inadequate pretrial investigation.

• Trial counsel failed to secure the services of an investigator.

-20-
• Trial counsel failed to challenge the warrantless seizure and search of

Petitioner Bane’s vehicle that supplied the only evidence that

corroborated the state’s key witness.

• Trial counsel failed to inspect and analyze the state’s physical evidence,

which impaired the development of valuable information.

• Trial counsel failed to investigate and uncover alibi evidence.

• Trial counsel failed to request and receive the state’s witness list prior

to trial, which would have facilitated defense investigation.

• Trial counsel failed to present direct evidence of the cause of death

through a pathologist available to prove drowning was not the cause of

death.

• Trial counsel at resentencing failed to object and request a mistrial

when the state elicited testimony that Petitioner Bane had previously

been sentenced to death.

• Trial counsel failed to request the mandatory jury instruction on the

state’s burden of proof beyond a reasonable doubt, pursuant to T.P.I.

2.02, failed to object to the omission fo the instruction, and failed to

raise the omitted instruction in the motion for new trial or on appeal.

• Trial counsel failed to object to the jury instructions relative to the

appropriate verdict forms, requiring unanimity to give effect to any

mitigation offered, shifting the burden, and lessening the state’s burden

to proving the aggravating factors and failed to raise the issue on

appeal.

• Trial counsel at resentencing trial failed to object to the jury

instructions relative to the appropriate verdict forms and lessening the

state’s burden and failed to raise the inappropriate jury instruction in a

motion for new trial and on appeal.

• Trial counsel failed to apprise the jury of the appropriate weighing

approach in considering the state’s burden for the elements of the

offense and the correct burden for aggravating factors and mitigating

circumstances.

-21-
• Trial counsel failed to ensure that all specific mitigating circumstances

were included in the jury instructions.

• The trial court failed to properly instruct the jury relative to the correct

burden of proof for the conviction of the charged offense.

• The trial court, in the original 1990 trial, failed to properly instruct the

jury regarding appropriate verdict forms for a death verdict.

• The trial court, in the resentencing trial in 1997, failed to properly

instruct the jury regarding the appropriate verdict forms for a life

sentence.

• The trial court failed to apply the appropriate heightened standard of

due process.

• Petitioner Bane’s sentencing was unconstitutionally based upon

aggravating factors that were not presented to a grand jury and included

in the indictment.

1. Ineffective Assistance Of Counsel

In order to properly address each of the issues raised in the Petitioner’s brief, we have

summarized and restated many of his argumentsregarding the ineffectiveness of his counsel.

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following

two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the [petitioner] by the Sixth

Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable. Unless a [petitioner] makes both showings, it cannot be said

that the conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.

-22-
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419

(Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of

competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail

on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s

representation fell below an objective standard of reasonableness.” House v. State, 44

S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

When evaluating an ineffective assistance of counsel claim, the reviewing court

should judge the attorney’s performance within the context of the case as a whole, taking into

account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753

S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the

questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be

highly deferential and “should indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.

Finally, we note that a defendant in a criminal case is not entitled to perfect representation,

only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.

Crim. App. 1996). In other words, “in considering claims of ineffective assistance of

counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally

compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,

466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective

merely because a different procedure or strategy might have produced a different result.

Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). The fact that a

particular strategy or tactic failed or hurt the defense does not, standing alone, establish

unreasonable representation. House, 44 S.W.3d at 515 (citing Goad v. State, 938 S.W.2d

363, 369 (Tenn. 1996)). However, deference to matters of strategy and tactical choices

applies only if the choices are informed ones based upon adequate preparation. House, 44

S.W.3d at 515.

If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90

S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,

665 (Tenn. 1994). Should the petitioner fail to establish either deficient performance or

prejudice, he is not entitled to relief. Strickland, 466 U.S. at 697; Goad, 938 S.W.2d at 370.

-23-
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

a. Assistance of Trial Counsel

The Petitioner asserts that his trial counsel were ineffective for failing to: (i) conduct

adequate pretrial investigation; (ii) secure the services of an investigator; (iii) challenge the

warrantless seizure and search of the Petitioner’s vehicle that yielded the only evidence that

corroborated the State’s key witness’stestimony; (iv) inspect and analyze the State’s physical

evidence; (v) investigate and uncover alibi evidence; (vi) request and receive the State’s

witness list prior to trial; (vii) present direct evidence of the cause of death through a

pathologist available to prove drowning was not the cause of death; and (viii) request certain

jury instructions.

i. Pretrial Investigation

As previously stated, the Petitioner mentions that his trial counsel conducted an

inadequate investigation. The only explanation he offers of this claim is to quote the postconviction court’s ruling on this issue:

Even if counsel should have located witness Laura Quinn [Dolan], there is not

a reasonable probability that her testimony would have changed the outcome

of the trial. Kay Lowry’s testimony that she caught Brian Lovett stealing has

marginal value. Gary Whitney’s testimony that a young man accompanying

Donna Lovett was involved in a physical altercation with Mr. Frazier [the

victim] has little value and is speculative. Petitioner Bane’s 1990 trial counsel

may have been remiss in failing to present some of the mitigation offered at

resentencing in 1997; however, because a jury again imposed the death

penalty, Petitioner Bane was not prejudiced at his initial sentencing hearing.

Based upon the Petitioner’s quotation from the post-conviction court’sfindings, we infer that

he is arguing on appeal that his trial counsel was ineffective for failing to present as

witnesses: Laura Quinn Dolan; Kay Lowry; and Gary Whitney.

To succeed on a claim of ineffective assistance of counsel for failure to call a witness

at trial, a petitioner should present that witness at the post-conviction hearing. Black v. State,

794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). “As a general rule, this is the only way the

petitioner can establish that . . . the failure to have a known witness present or call the

witness to the stand resulted in the denial of critical evidence which inured to the prejudice

of the petitioner.” Id.

-24-
Once a petitioner presents a witness at a post-conviction hearing whom he claims

should have been called at trial, the post-conviction court must determine whether the

testimony would have been (1) admissible at trial and (2) material to the defense. Pylant v.

State, 263 S.W.3d 854, 869 (Tenn. 2008). The post-conviction court is justified in finding

that trial counsel was not deficient in failing to call a witness at trial if the post-conviction

court determines that the witness’s testimony would have been inadmissible at trial or that,

even if admissible, would not have materially aided the petitioner’s defense at trial. Id. If

the proffered testimony is both admissible and material, the post-conviction court must assess

the credibility of the witness. Id. at 869-70.

Laura Quinn Dolan

The record shows that the Petitioner presented Laura Quinn Dolan as a witness at the

post-conviction hearing. Dolan, who had not been called as a witness at the Petitioner’s trial

or resentencing hearing, testified she was dating Brian Lovett in 1988 at the time of the

victim’s murder. She recalled an occasion around this time when Brian and Thomas Lovett

came to her house and Brian told her that he was going with Ms. Lovett and the Petitioner

to Frayser. Dolan maintained that Brian never told her that he, Ms. Lovett, or the Petitioner

planned to rob or kill the victim. Dolan learned of the homicide when Brian called her and

stated that his mother’s boyfriend had murdered someone. Dolan did not recall what day the

murder occurred or what day Brian and Thomas went to her house. She was also unsure of

the dates in 1997 when she spoke to an investigator.

To confirm Dolan’s testimony, the Petitioner also presented testimony from

Investigator Ronald Lax who was retained to assist in investigating the Petitioner’s case

before his 1997 resentencing hearing. Investigator Lax testified that he interviewed Dolan

as part of his 1997 investigation. He recounted that Dolan’s post-conviction testimony

denying that Brian told her of the plan to rob and kill the victim contradicted Brian’s

testimony that he told Dolan of the plan. Investigator Lax’s report, which he prepared after

the 1997 interview with Dolan, stated that Dolan “could not remember a lot of details

regarding relevant information pertaining to the incident.” The report further stated that

“although this occurred in November, [Dolan] seemed to recall it taking place in the

summer.” Additionally, the report provided that, although Dolan indicated that she could

recall both Brian and Thomas Lovett coming to her house on the day of the murder, she was

unsure of the time they arrived, initially saying it was 7:00 p.m. and 10:00 p.m. and later

saying it was closer to 5:00 p.m. The report said Dolan was unable to recall who brought

Brian and Thomas Lovett to her house.

According to Investigator Lax’s report, Dolan stated that Brian Lovett did not tell her

the plan to kill the victim before the murder but she said that, the day after the murder, Brian

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told her that the Petitioner had killed the victim. Dolan stated to Investigator Lax that Brian

Lovett had told her in the past that Ms. Lovett was involved in a relationship with the victim

and that the victim owed Ms. Lovett money. The report indicated, “It seemed like the

impression [Dolan] got from Brian was that his mother was trying to collect the money and

that [the Petitioner] may have been present because [the victim] had been abusive to [Ms.

Lovett] in the past.” Dolan provided the investigators with additional details that

corroborated much of Brian’s testimony, such as that Brian told her he was in the vehicle

parked at the victim’s house and that he was afraid for his mother so he walked up the

driveway, heard a dog barking, and returned to the vehicle because he was scared. Dolan

informed investigators that Brian stated that he was afraid of the Petitioner and believed that

the Petitioner had people watching him.

In denying relief, the post-conviction court found the Petitioner’s trial counsel were

not ineffective for failing to locate, interview, or call as a witness Dolan. The court noted

that Dolan had “considerable difficulty” recalling the details of the events in question during

both Dolan’s statement to investigators and in her testimony at the post-conviction hearing.

The post-conviction court further noted that the details about which Dolan was certain

seemed to corroborate much of Brian Lovett’s testimony at trial. Therefore, the court

concluded, “[T]here simply is not a reasonable probability that the presentation of this

testimony would have changed the outcome of [the] [P]etitioner’s trial.”

The evidence presented by Dolan would have clearly been admissible, which is the

first prong of the post-conviction court’s inquiry. See Pylant, 263 S.W.3d at 869. The

question then is whether the evidence would have been material to the Petitioner’s defense.

See id. As the post-conviction court noted, the details offered by Dolan, about which she was

certain, largely corroborated Brian Lovett’s trial testimony. She testified that, after the

murder, Brian Lovett told her that the Petitioner had murdered the victim. The details she

recalled Brian telling her, such as that he exited the car to check on his mother’s welfare

during the crime but returned to the car when a dog barked, largely comported with Brian’s

testimony. Dolan was uncertain about much of the rest of her testimony, including the date

of the events, who brought Brian and Thomas Lovett to her house, and what time they

arrived. We do not perceive how Dolan’s testimony would have aided the Petitioner’s

defense. On the contrary, it would confirm much of Brian Lovett’s testimony. Even were

we to conclude that Dolan’s testimony was material, the trial court made a determination that

the uncertainty of Dolan’s testimony called her credibility into question. This credibility

determination rests soundly with the post-conviction court, and we will not disturb it on

appeal. The Petitioner is not entitled to relief with regard to this issue.

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Kay Lowry

The Petitioner similarly makes no argument in his brief about why his trial counsels

should have called Kay Lowry and instead quotes only from the post-conviction court’s

ruling. The Petitioner’s post-conviction counsels did not call Lowry to testify at the postconviction hearing, but Investigator Lax testified that he interviewed Lowry, who was the

owner of the Log Cabin Restaurant from 1976 to February 1988. Lowry stated to him that

she had caught Brian Lovett stealing from her on one occasion.

As previously stated, to succeed on a claim of ineffective assistance of counsel for

failure to call a witness at trial, a petitioner should present that witness at the post-conviction

hearing. See Black, 794 S.W.2d at 757. “As a general rule, this is the only way the petitioner

can establish that . . . the failure to have a known witness present or call the witness to the

stand resulted in the denial of critical evidence which inured to the prejudice of the

petitioner.” Id. While the Petitioner in the case under submission did not present Lowry’s

testimony, he did offer the testimony of Investigator Lax, who relayed the substance of

Lowry’s potential testimony. We therefore turn to decide whether the evidence was

admissible at trial and material to the defense. See Pylant, 263 S.W.3d at 869.

The post-conviction court found that Lowry’stestimony had marginal if any probative

value, meaning it would not have been admissible at trial or material to the defense. We

agree. Lowry’s potential testimony that she caught Brian Lovett stealing from her would

have been inadmissible as a specific instance of misconduct. See Tenn. R. Evid. 608(b)

(“Specific instances of conduct of a witness for the purpose of attacking or supporting the

witness’s character for truthfulness, other than convictions of crime as provided in Rule 609,

may not be proved by extrinsic evidence.”). And, because of the lack of probative value of

such testimony, trial counsel would have been prohibited under Rule 608 of the Tennessee

Rules of Evidence from cross-examining Brian Lovett regarding the incident. See id.

Moreover, at trial, Brian Lovett had already admitted to dishonesty in that he lied to the

police about the homicide and admitted to his participation in the offense. This admission

makes Lowry’s purported testimony less significant to the defense. The Petitioner is not

entitled to relief on this issue.

Gary Whitney

Again drawing from the Petitioner’s quotation of the post-conviction court’s ruling,

we turn to address whether the post-conviction court erred when it ruled that the Petitioner’s

trial counsel were not ineffective by failing to call Gary Whitney as a witness. Whitney did

not testify at the post-conviction hearing. Investigator Lax, however, testified he interviewed

Whitney, an employee of the Log Cabin Restaurant, who stated that the victim frequented

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the restaurant and, while doing so, drank quite a bit of alcohol and “flash[ed]” money. The

investigator said Whitney recalled an altercation that occurred between three months and one

year before the victim’s death between the victim and a young man, whom Whitney could

not identify. The “young man” was in the company of Ms. Lovett at the time of the

altercation.

The post-conviction court found that such testimony had little, if any, value, was

speculative, and would have been inadmissible at trial. See Tenn. R. Evid. 402, 403. We

conclude the post-conviction court did not err in this regard. First, Whitney was not

presented as a witness at the post-conviction hearing and it is not clear what exactly his

testimony would have been. Further, we agree with the post-conviction court that this

testimony, as presented through Investigator Lax, would not have been admissible at trial.

The Petitioner is not entitled to relief on this issue.

ii. Failure to Hire an Investigator

On this issue, the Petitioner’s brief reads:

• Trial counsel failed to secure the services of an investigator

Post-Conviction Court: Even if counsel should have hired an

investigator for the 1990 trial, Petitioner Bane was not

prejudiced by counsel’s inaction. [Counsel’s] decision not to

question Brian Lovett about his prior suicide attempts was a

strategic choice. The state provided open-file discovery and if

there was any favorable treatment for Donna and Brian Lovett,

[trial counsel] would have been provided that information by the

state.

From what we can ascertain from the record, the Petitioner alleged during the course of the

post-conviction proceedings that if his trial counsels had retained an investigator they would

have discovered the agreements that the State had entered into with Ms. Lovett and Brian

Lovett, evidence that could have been used to impeach those two State’s witnesses on the

basis of bias.

The Petitioner’s trial counsel testified at the post-conviction hearing that, rather than

hire an investigator, he himself conducted the investigation and interviewed witnesses. He

subpoenaed witnesses whose testimony at trial would establish that the Petitioner did not

need money and that Ms. Lovett was jealous and vengeful. Trial counsel testified that he

relied upon the State’s open-file discovery policy and that, if the State had entered into an

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agreement with one of the witnesses, it would have provided him with the details of the

agreement. Further, he filed various motions requesting disclosure of impeaching

information and evidence of any consideration or promises of consideration given to or made

on behalf of the State’s witnesses.

The Petitioner’s trial counsel agreed that he had a copy of Brian Lovett’s mental

health records, which indicated that Lovett had been hospitalized for attempted suicide. Trial

counsel could not recall why he did not cross-examine Lovett about these mental health

records. General Henderson, however, testified and explained that shortly before this

murder, Brian Lovett’ssister had committed suicide, which caused Lovett to suffer mentally.

Lovett’s father then kicked Lovett out of his home, and Lovett went to live with his mother,

who had abandoned her career to live with the Petitioner after helping him escape from

prison. Lovett participated in discussions between his mother and the Petitioner during

which the two discussed killing and robbing someone. The general stated:

The problem that [trial counsel], I think, was facing in the strategy point of

view is cross-examining a seventeen year old who had been victimized by his

mother and the [Petitioner]. He made a very sympathetic figure and you’ve got

to be careful about jumping on somebody like that in front of the jury when

your client’s facing death.

General Henderson noted that the record of Stein’s cross-examination of Brian Lovett was

almost one hundred pages of the transcript and that much of Stein’s cross-examination

addressed the inconsistent statements.

Also, General Henderson testified that he did not enter into any agreement with Ms.

Lovett or Brian Lovett. The general explained that he did not prosecute Brian Lovett because

he did not believe that he could obtain a conviction, due in part to Brian Lovett’s age. The

general said he also believed that Brian Lovett was a better witness for the State than a

defendant. Further, he said that Ms. Lovett’s plea was not contingent upon her testimony or

testimony from Brian Lovett.

Counsel has a duty to investigate and prepare a case, and this duty derives from

counsel’s basic function “to make the adversarial testing process work in the particular case.”

Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). There is, however, no rule requiring

defense counsel to retain experts or investigators in every capital case. See e.g., Andre Bland

v. State, No. W2007-00020-CCA-R3-PD, 2009 WL 910197, at *41 (Tenn. Crim. App., at

Jackson, Apr. 3, 2009) (holding that trial counsel was not ineffective in failing to retain a

mitigation expert), perm. app. denied (Tenn. Aug. 17, 2009); see also Tyrone Chalmers v.

State, No. W2006-00424-CCA-R3-PD, 2008 WL 2521224, at *28 (Tenn. Crim. App., at

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Jackson, June 25, 2008) (holding that trial counsel was not ineffective in failing to retain an

investigator), perm. app. denied (Tenn. Dec. 22, 2008). We recognize that, especially in

cases where the defendant faces the penalty of death, it is a much better practice for counsel

to hire an investigator to assist in investigating the case.

We conclude that in this case, while it may have been better practice for the

Petitioner’s counsel to hire an investigator, the failure to do so did not result in any prejudice

to the Petitioner. First, and perhaps most importantly, the Petitioner has not proven by clear

and convincing evidence that there was in fact any agreement between the State and Ms.

Lovett or Brian Lovett. Therefore, he has not proven that, had his trial counsel hired an

investigator, the investigator would have found any evidence of such an agreement. Second,

he has offered no other evidence that an investigator could have uncovered before trial that

would have benefitted him during his trial.

With regard to trial counsel’s failure to cross-examine Brian Lovett about his mental

health history, which we will discuss here based upon the Petitioner’s quotation from the

post-conviction court’s findings, we conclude that trial counsel was not ineffective in this

regard. It is true that trial counsel did not specifically recall his reasoning for this failure, but

a viable explanation for counsel’s decision is apparent from the record. Brian Lovett’s

mental health records from Memphis Mental Health Institute were entered as an exhibit at

the post-conviction hearing. The records revealed two suicide attempts, one in June 1986

and one in October 1988. Both attempts occurred as a result of his thoughts of his sister’s

suicide. Brian admitted to health officials that he had tried marijuana, LSD, and cocaine in

the past but denied recent usage. The records describe Brian’s memory for recent and remote

as “good” and his retention and recall as “fair.” During the trial, the State attempted to

question Brian Lovett on direct examination regarding the information in the medical

records, and the Petitioner’s counsel objected because he believed that such information

would provoke sympathy for Brian and thereby prejudice his client. Both General Henderson

and trial counsel informed the trial court that the doctors indicated that the suicidal

tendencies were not delusional, in the sense that they did not include fabricated fantasies,

which would impinge his credibility.

At the post-conviction hearing, General Henderson explained that Brian Lovett was

a sympathetic witness. His mental health problems were derived from his sister’s suicide,

his father’s neglect, and his mother’s new relationship with the Petitioner, whom she helped

escape from prison. Were the Petitioner’s trial counsel to cross-examine Brian Lovett about

his mental history, much of that evidence, a great deal of which the jury did not hear, would

have been admissible. Trial counsel focused his cross-examination of Lovett on Lovett’s

inconsistent statements and his admission of dishonesty. We agree with the post-conviction

court that trial counsel’s decision to refrain from cross-examining Brian Lovett about his

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mental health history was a strategic decision. The Petitioner is, therefore, not entitled to

post-conviction relief on this issue.

iii. Challenge to Warrantless Search

About this issue, the Petitioner’s brief reads:

• Trial counsel failed to challenge the warrantless seizure and search of

Petitioner Bane’s vehicle that supplied the only evidence that

corroborated the state’s key witness.

Post-Conviction Court: Trial Counsel were ineffective in failing

to adequately raise and challenge the warrantless seizure and

search; however, given the controlling case law at the time, a

challenge would not have been successful and the outcome of

the trial would not have been different.

The Petitioner briefs this issue extensively later in the argument section of his brief. We will,

therefore, refrain from addressing it here, in the bullet point listing of his post-conviction

issues. We will, however, discuss it in depth below.

iv. Failure to Inspect and Analyze the Physical Evidence

The Petitioner states in his brief:

• Trial counsel failed to inspect and analyze the state’s physical evidence,

which impaired the development of valuable information.

Post-Conviction Court: Counsel was not ineffective in failing to

request that clothing and other items be submitted to fingerprint

and DNA analysis. Counsel’s strategy to point out the lack of

physical evidence connecting Petitioner Bane to the offense will

not be faulted. Petitioner Bane has not demonstrated prejudice.

From what we glean from the record, the Petitioner argued below that trial counsel was

ineffective in failing to submit the State’s physical evidence, including a plunger found in

the victim’s bathroom, items recovered from the Petitioner’s vehicle, and cigarette butts and

beer cans found at the scene, for fingerprint and DNA analysis.

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Judicial scrutiny of trial counsel’s performance is highly deferential, and “[a] fair

assessment of attorney performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466

U.S. at 689. We defer to counsel’s trial strategy and tactical choices if they are informed

ones based upon adequate preparation. Hellard, 629 S.W.2d at 9. The fact that a particular

strategy or tactical decision failed does not by itself establish ineffective assistance of

counsel. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).

During trial, crime scene officers testified that they were unable to recover

fingerprints from several items seized from the scene of the victim’s death. The Petitioner’s

trial counsel testified that his trial strategy was to show that, because the State presented no

fingerprint or DNA evidence placing the Petitioner at the crime scene, the State failed to

meet its burden of proving that the Petitioner had committed this murder. Consistent with

this strategy, counsel cross-examined the officers at trial about the lack of fingerprints and

fibers tying the Petitioner to the scene and also about the officers’ failure to request that any

items be tested for DNA. Trial counsel testified that he did not seek the independent testing

of any items because he believed it was more important to emphasize the lack of physical

evidence. At the post-conviction hearing, the Petitioner offered no evidence to establish

what independent fingerprint and/or DNA testing would have revealed.

We conclude first that the post-conviction court did not err when it found that the

Petitioner’s trial counsel’s performance was not deficient in this regard. Trial counsel had

an informed strategy that was reasonably supported, that the State lacked evidence against

the Petitioner, which would have been greatly hampered had fingerprint and DNA testing

revealed that the Petitioner had, in fact, been present at the crime scene. Further, even were

we to conclude otherwise, the Petitioner has not proven by clear and convincing evidence

that he was prejudiced. He offered no evidence showing what, if anything, further

fingerprint or DNA testing would have revealed. See Black, 794 S.W.2d at 757-58. Thus,

the Petitioner is not entitled to relief on this issue.

v. Failure to Investigate and Present Evidence of an Alibi Defense

The Petitioner’s brief states:

• Trial counsel failed to investigate and uncover alibi evidence.

Post-Conviction Court: It appears that trial counsel did

investigate a potential alibi defense and found that the defense

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could not be supported. Petitioner Bane also has failed to

present proof relating to potential alibi witnesses.

The Petitioner failed to present proof about any potential alibi witness at the postconviction proceeding. To satisfy the prejudice requirement of Strickland when alleging that

counsel was ineffective for failing to offer testimony from a favorable witness, the

post-conviction petitioner must “(1) produce the witness at his post-conviction hearing; (2)

show that through reasonable investigation, trial counsel could have located the witness; and

(3) elicit both favorable and material testimony from the witness.” Denton v. State, 945

S.W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing Black, 794 S.W.2d at 757). The

Petitioner has not proven by clear and convincing evidence that he was prejudiced by his trial

counsel’s alleged failure to investigate an alibi witness. The Petitioner is not entitled to relief

on this issue.

vi. Failure to Obtain the State’s Witness List

The Petitioner’s brief states

• Trial counsel failed to request and receive the state’s witness list prior

to trial, which would have facilitated defense investigation.

Post-Conviction Court: Trial counsel testified that the state had

open file discovery, that he received a witness list from the state,

and that he interviewed several witnesses.

It is unclear to this Court what the Petitioner contends on appeal. There is no

evidence to dispute trial counsel’s testimony that he received a copy of the witness list from

the State, which he used to locate and interview several witnesses. The Petitioner has not

proven by clear and convincing evidence that trial counsel was not in possession of the list.

He has also not proven how he was prejudiced by any actions of trial counsel in this regard.

vii. Failure to Present Testimony from a Pathologist

The Petitioner’s brief next states:

• Trial counsel failed to present direct evidence of the cause of death

through a pathologist available to prove drowning was not the cause of

death.

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Post-Conviction Court: [Trial Counsel] testified with regard to

the 1990 trial that he found no reason to dispute the cause of

death based on their defense. Even if counsel’s performance

was deficient, Petitioner Bane has failed to show prejudice in

terms of culpability. Regarding prejudice to the penalty phase

and the HAC aggravating circumstances, the jury still would

have heard the other circumstances surrounding the death. As

for resentencing, counsel was not deficient in failing to call Dr.

Sperry to testify. Counsel determined it was unnecessary to do

so, and no evidence suggests Dr. Sperry’s testimony would have

differed from that of Dr. Francisco.

1

As previously noted, trial counsel’s strategy was to argue that, due to the State’s lack of

physical evidence and Brian Lovett’s lack of credibility, his client was innocent. Trial

counsel determined that challenging the victim’s cause of death was not necessary in order

to pursue this strategy. We agree. The Petitioner, who maintained his innocence, would not

have reason to challenge the cause of the victim’s death, which he argues was asphyxiation

rather than drowning. That evidence may have only been relevant to challenge Brian

Lovett’s trial testimony. Lovett testified at trial, however, that he had not seen the murder.

He said the Petitioner told him that “he put a cord around [Frazier’s] neck and that my

mother had put a plastic bag over [Frazier’s] head, and that they had put him in a bathtub full

of water.” Brian Lovett did not state whether the victim had been strangled or drowned.

This evidence, therefore, would also not have been helpful in cross-examining Lovett. We

conclude that the Petitioner’s trial counsel was not ineffective for failing to challenge the

victim’s cause of death.

Further, the Petitioner has also not proven how he was prejudiced by any alleged

failure in this regard. We note first that, at trial, the State medical examiner, Dr. Harruff, did

not testify that drowning was the cause of the victim’s death but rather that a ligature

strangulation with asphyxia was the cause of death. When the trial court asked Dr. Harruff

if the victim had water in his lungs, Dr. Harruff responded that he found edema fluid in the

victim’s lungs but that it did not mean that the victim inhaled water from the bathtub.

According to Dr. Harruff, “the finding of edema fluid in his lungs, or the water in his lungs,

could have come from his own body fluids and not necessarily inhaled.”

While we note that the Petitioner’s quotation from the post-conviction court’s finding includes a 1

finding about the Petitioner’s counsel’s representation at his resentencing hearing, we refrain from

addressing that issue. The Petitioner states the issue only in terms of “[trial counsel[’s]” failure. It appears,

therefore, that his trial counsel’s performance is the only issue he is maintaining on appeal.

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Before resentencing, the Petitioner’s resentencing counsel hired an independent

pathologist, Dr. Sperry, to determine the victim’s cause of death. During the resentencing

hearing, the medical examiner testified that there was no water in the victim’s lungs but that

the victim had a small amount of phlegm or liquid in his bronchial tubes, which could have

established drowning. Resentencing counsel did not present Dr. Sperry’s testimony in part

because he did not believe that Dr. Sperry’s testimony would be effective given the medical

examiner’s adamant testimony that the victim drowned. Because no definitive proof about

whether the victim died from asphyxiation or drowning has been presented, either cause of

death remains plausible.

Ultimately, however, the jury’s verdict of guilt was not contingent upon a

determination that the victim, who was found dead in a water-filled bathtub, died from

drowning as opposed to asphyxiation. The Petitioner maintained that he had not murdered

the victim and was not present during the murder. Any evidence, therefore, about the cause

of death would not have necessarily swayed the jury to believe that the Petitioner was, or was

not, present. The Petitioner is not entitled to relief on this issue.

viii. Jury Instructions

The Petitioner offers several issues regarding the deficiencies in his trial counsels’

performance with regard to the jury instructions given at his trial sentencing. He briefs many

of those issues more in depth later in the argument section of his brief, and we will, therefore,

address them below.

b. Assistance of Counsel at Resentencing

The Petitioner presents two issues with regard to the assistance of counsel at

resentencing. He asserts they were ineffective for failing to object and request a mistrial

when a witness during resentencing testified that the Petitioner had previously been

sentenced to death and that they were ineffective for failing to object to the jury instructions.

i. Testimony that Petitioner Bane had Previously Been Sentenced to Death

The Petitioner’s brief states:

• Trial counsel at resentencing failed to object and request a mistrial

when the state elicited testimony that Petitioner Bane had previously

been sentenced to death.

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Post-Conviction Court: Petitioner Bane’s priorsentence was not

revealed until cross-examination of Brian Lovett at resentencing

based on certain letters written by Donna Lovett. Counsel’s

strategy will not be second-guessed, and the letters could have

cast doubt on the 1990 guilty verdict. Even if counsel was

ineffective, there is not a reasonable probability that Petitioner

Bane would not have received the death penalty.

Our review of the post conviction court’s findings indicates that, during resentencing, the

State introduced testimony from Brian Lovett. During the Petitioner’s cross-examination of

Lovett, his resentencing counsel introduced letters written by Donna Lovett to Brian Lovett

and to the Petitioner in which she implicated Brian Lovett in the murder and indicated that

the Petitioner was not the actual killer. As the post-conviction court indicated:

The letter introduced implied that Brian Lovett was the person who murdered

the victim and seemed to indicate that Donna Lovett was “surprised” by Brian

Lovett’s statements to police and prior trial testimony. In the letters Donna

Lovett claims she lied to police and seems to indicate Brian Lovett was

likewise untruthful. In one letter to [the Petitioner,] Lovett states, “by telling

those lies about sitting around the trailer and planning a murder, he, [Brian

Lovett], closed up the case on both of us.” She goes on to state, “I told him

and Tommy to tell the truth. . . . Well, he didn’t, and you and I are the only

ones that knows it.” Later Lovett writes, “Now, I truly never thought you’d

get the death penalty because you and I were the only ones who really knew

what . . . went on . . . in that house.”

The post-conviction court recognized that it may have been better for his resentencing

counsel to request that the letters be introduced in some redacted form, but it said it would

not second-guess counsel’s strategy. The court found the letters clearly exonerated the

Petitioner and implicated Donna Lovett’s own son. The court further found that, even if

counsel were ineffective for failing to request that the letters be redacted, the Petitioner had

not proven prejudice.

We conclude that the evidence does not preponderate against the post-conviction

court’s findings. The jury in this case was aware that there had been a previous proceeding.

They were instructed, however, to consider only the proof presented during the resentencing

hearing. The United States Supreme Court has held that introduction of prior evidence of

a death sentence was not constitutional error when the evidence did not “affirmatively

[mislead] the jury regarding its role in the sentencing process so as to diminish its sense of

responsibility.” Romano v. Oklahoma, 512 U.S. 1, 10 (1994). The Tennessee Supreme

-36-
Court has previously stated that “it is clearly improper, as a general rule, to inform a jury at

a resentencing hearing that at a prior trial Defendant was sentenced to death.” State v. Miller,

771 S.W.2d 401, 404 (Tenn. 1989). However, this “general” bar against the sentencing jury

hearing evidence of a prior sentence of death is subject to qualification. State v. Rimmer, 250

S.W.3d 12, 32 (Tenn. 2008). “Generally, proof that a defendant in a resentencing hearing

has previously been sentenced to die is improper; whether it is reversible error depends on

the specific manner in which the evidence was presented.” Id.

Considering the aforementioned authorities, we conclude that the Petitioner’s

resentencing counsel were not ineffective for failing to have the reference to the Petitioner’s

prior death sentence redacted from the letters. Counsel’s aim was to show that Brian Lovett

was lying when he implicated the Petitioner, and the letters Donna Lovett wrote to Brian

Lovett and the Petitioner so indicated. While, in hindsight, it may have been better to redact

the references to the Petitioner’s prior sentence of death, we do not find that counsels’

actions fell below an objective standard of reasonableness. In any event, we conclude the

Petitioner has not proven prejudice. As the United States Supreme Court has noted, “it is

virtually impossible to shield jurors from every . . . influence that might theoretically affect

their vote.” Smith v. Phillips, 455 U.S. 209, 217 (1982). The jury was instructed to consider

only the evidence presented at the resentencing hearing, and they are presumed to have

followed that instruction. State v. Ivy, 188 S.W.3d 132, 144 (Tenn. 2006) (“Since the jury

is presumed to follow jury instructions absent evidence to the contrary, we conclude that

these instructions protected against the possibility of prejudice.”). The evidence supporting

the aggravating circumstances was overwhelming. The Petitioner is, therefore, not entitled

to relief on this issue.

ii. Jury Instructions

The Petitioner raises several issues regarding the deficiencies in his counsels’

performance with regard to the jury instructions given at his resentencing hearing. He briefs

many of those issues more in depth later in the argument section of his brief, and we will,

therefore, address them below.

2. Constitutionality of the Petitioner’s Sentence

The Petitioner’s brief states that his sentencing was unconstitutionally based upon

aggravating factors that were not presented to a grand jury and included in the indictment.

We will also address that issue more in depth below.

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B. Grounds for Post-Conviction Relief Alleged on Appeal

In the argument section of the Petitioner’s brief, he alleges five grounds for relief: (1)

the post-conviction court erred when it gave deference to trial counsel’s trial strategy and

tactical choices because trial counsel admittedly did not review the file before testifying at

the post-conviction hearing; (2) the Petitioner’s trial was fundamentally unfair; (3) trial

counsel’s failure to challenge the warrantless seizure and search of Petitioner Bane’s vehicle

constitutes ineffective assistance of counsel; (4) the failure by trial counsel and resentencing

counsel to ensure that the juries were fully and correctly instructed constituted ineffective

assistance of counsel; and (5) the Tennessee death penalty scheme is unconstitutional.

1. Trial Counsel’s Lack of Preparation for Post-Conviction Testimony

The Petitioner contends that, because trial counsel did not adequately prepare for his

testimony at the Petitioner’s post-conviction hearing, the post-conviction court erred when

it gave deference to trial counsel’s strategic decisions. He asserts that this, in combination

with the accidental destruction of counsel’s file on the Petitioner’s trial and the fact that the

post-conviction judge had not presided over the Petitioner’s trial, thwarted his efforts to

prove the facts that demonstrated counsel’s performance was ineffective. The Petitioner

points to the following exchange between the post-conviction court and trial counsel:

THE COURT: And, [trial counsel], how can you come to my courtroom on a

post-conviction case and you don’t remember anything about the case?

[Trial counsel]: Well --

THE COURT: I mean, did you do any preparation for your testimony today?

[Trial counsel]: Well, I really didn’t, Your Honor other than the record. I

didn’t have a chance to read the record.

THE COURT: Did you even read the report of the appellate opinion in the

case? Basically, you came here to testify with the intent of just saying “I don’t

remember anything,” without making any effort to get ready for thistestimony.

Is that correct?

[Trial counsel]: Well, that is correct. I usually would depend on [the Assistant

District Attorney General]. He would usually go over it with me.

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THE COURT: Well, you understand that we’re going to have an academic

exercise in futility today because of your lack of preparation?

[Trial counsel]: Well, I apologize, Your Honor. You know, usually I meet

with [the Assistant District Attorney General]. But –

[Assistant District Attorney General]: He doesn’t have a file. It’s a situation

where I don’t know what he did because his file is burned up. I’ve got – all

I’ve got is the actual, you know, other than reviewing the transcript, I’ve got

the court opinions. But I can’t – I don’t know what his file had in it.

THE COURT: All right. I’m going to give [the Petitioner’s post-conviction

counsel] a little more leeway than we normally would, otherwise we’re just

wasting our time.

In support of his assertion that trial counsel’s inability to recall what occurred before and

during his trial, the Petitioner cites to the American Bar Association Guidelines that govern

attorneys representing defendants facing the penalty of death. See ABA Guidelines for the

Appointment and Performance of Defense Counsel in Death Penalty Cases 10.13.

The State responds first that the Petitioner fails to identify precisely where the postconviction court applied this standard, why the standard was incorrectly used, and how it

affected the outcome of the post-conviction court’s analysis. Further, the State asserts that

the post-conviction court offered this deference to trial counsel’s strategic decisions in only

two instances: (1) trial counsel’s failure to cross-examine Brian Lovett regarding his mental

health record; and (2) failure to test certain items of evidence for additional fingerprints or

DNA evidence. The State asserts that neither of these findings by the post-conviction court

was erroneous.

We understand the Petitioner’s and the post-conviction court’s frustration with trial

counsel’s failure to review the record and refresh his memory before testifying at the postconviction hearing. We further understand that it is harder for a court to determine whether

an attorney representing a defendant had a viable trial strategy, which should not be secondguessed in hindsight, if the attorney cannot remember his own strategy at the time of the postconviction hearing.

That being said, we do not find that relief is required under the set of facts presently

before us. The post-conviction court herein only deferred to trial counsel’s strategy on two

issues, and we conclude that it erred in neither of those instances. As we previously stated,

while trial counsel did not recall why he did not use Brian Lovett’s mental health history

-39-
during his cross-examination of Lovett, General Henderson offered a reasonable and

understandable explanation about why the Petitioner’s trial counsel would not have wanted

to cross-examine Brian Lovett about his mental health history. The general explained that

Brian Lovett was a sympathetic witness. His mental health problems were derived from his

sister’s suicide, his father’s neglect, and his mother’s new relationship with the Petitioner,

whom she helped escape from prison. Were the Petitioner’s trial counsel to cross-examine

Brian Lovett about his mental history, much of that evidence, a great deal of which the jury

did not hear, would have been admissible. Trial counsel focused his cross-examination of

Lovett on Lovett’s inconsistent statements and his admission of dishonesty.

The second strategic decision of counsel to which the post-conviction court deferred

was trial counsel’s failure to request that evidence found by police be tested for fingerprints

and DNA. By all accounts, the Petitioner maintained that he was not at the scene of the

murder when the victim was killed and that he did not participate in the planning or

execution of the murder. The evidence that was tested by the State came back negative for

the Petitioner’s DNA and fingerprints. Based upon this and the Petitioner’s proclamations

of innocence, trial counsel did not request testing of the other evidence. His trial strategy

was to assert the Petitioner was innocent and that the State could not prove beyond a

reasonable doubt otherwise. As we stated above, we think this was a reasonable strategy

under the circumstances. We further conclude that the post-conviction court did not err when

it offered deference to trial counsel’s strategy in this regard. The Petitioner is not entitled to

relief on this issue.

2. Fundamental Fairness

The Petitioner asserts that, while the post-conviction court examined each of the

Petitioner’s claims of ineffective assistance of counsel individually, it failed to look at the

effect trial counsel’s performance had on the fundamental fairness of his trial. He asserts that

while each individual instance in which counsel’s performance was deficient may not have,

in itself, prejudiced him, the cumulative effect of those deficiencies rendered his trial

fundamentally unfair. The Petitioner notes that trial counsel spent only sixty-eight hours on

his case total, which, he asserts, was not sufficient. The Petitioner cites to a recent opinion

by this Court, in which we stated that “[w]hen an attorney has made a series of errors that

prevents the proper presentation of a defense, it is appropriate to consider the cumulative

impact of the errors in assessing prejudice.” Timothy Terell McKinney v. State, No. W2006-

02132-CCA-R3-PD, 2010 WL 796939, at *37 (Tenn. Crim. App., at Jackson, Mar. 9, 2010),

perm. app. denied (Tenn. Aug. 25, 2010).

The State counters that the Petitioner has waived our review of any claim of

“cumulative deficiencies” because he failed to raise the issue in his petition for post-

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conviction relief or at his post-conviction hearing. See T.C.A. § 40-30-106(a) (holding that

a ground for post-conviction relief is waived “if the petitioner personally or through an

attorney failed to present it for determination in any proceeding before a court of competent

jurisdiction in which the ground could have been presented”). The Petitioner submitted a

reply brief in which he maintained his claim is not one of “cumulative deficiencies” but that

he is requesting that this Court examine the holding in Strickland that “the ultimate focus of

inquiry must be on the fundamental fairness of the proceedings whose result is being

challenged,” such that “[i]n every case the court should be concerned with whether . . . the

result of the particular proceeding is unreliable because of a breakdown in the adversarial

process that our system counts on to produce just results.” Strickland, 466 U.S. at 696. “The

benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied

on as having produced a just result.” Id. at 686.

In McKinney, the case to which the Petitioner cites in support of this contention, this

Court discussed the cumulative effect of a trial counsel’s errors where one of counsel’s errors

was a failure to investigate the case. The facts in McKinney proved that counsel knew of or

should have known of contradicting identifications by witnesses, including two of the

prosecution’s key witnesses. In McKinney, the petitioner’s post conviction counsel provided

numerous exhibits illustrating that the investigators informed trial counsel of numerous

conflicting statements of witnesses. The testimony at McKinney’s original trial evidences

that trial counsel essentially ignored the conflicting statements by failing to cross-examine

the two key witnesses thoroughly and by failing to present the testimony of additional

witnesses who were present at the time of the shooting. Trial counsel had within their

control admissible evidence which would have permitted the defense to emphasize flaws in

the prosecution’s case. By failing to cross-examine the witness effectively about his

conflicting statements regarding the identification he provided of the shooter, trial counsel

left the jury with essentially unrequited and untested testimony. Trial counsel’s failure to use

the witness’s prior statements as well as his failure to use the conflicting identifications of

other witnesses failed to subject the prosecution’s case adequately to the adversarial process.

Based upon these facts, and the fact that the evidence against McKinney was not

overwhelming, we stated:

When an attorney has made a series of errors that prevents the proper

presentation of a defense, it is appropriate to consider the cumulative impact

of the errors in assessing prejudice. See Harris by and through Rhymster v.

Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (citations omitted). While it

remains the burden of the Petitioner to “prove prejudice,” see Strickland, 466

U.S. at 693, the Petitioner is not required to demonstrate how the result would

have been different. Rather, a defendant must show that there is a reasonable

-41-
probability that absent the deficiencies of counsel the outcome of the trial

would have been different. A reasonable probability does not mean a

certainty, or even a more likely than not different outcome. Strickland, 466

U.S. at 694. It does not mean that no rational juror could constitutionally find

the Petitioner guilty. The reviewing court does not ask as to whether the

defendant is innocent of the crime. The question remains whether the

defendant was deprived of a reasonable chance of acquittal due to his

counsel’s performance.

The inconsistent testimony and statements of [the two key witnesses]

could easily have raised questions in the minds of the jurors regarding their

credibility and their ability to identify the Petitioner as the shooter. Questions

of credibility of witnesses are not aptly reviewed in hindsight by an appellate

court. Conflicting statements may appear insignificant upon a cold record

after the fact. The same statements, however, may very well prove significant

when observed first hand by a jury. As such, it is the jury, not the appellate

court, whose province it is to evaluate the witnesses credibility and to decide

the defendant’s guilt. See Matthews v. Abramajtys, 319 F.3d 780, 790 (6th

Cir. 2003). The actual resolution of the conflicting evidence, the credibility

of witnesses, and the plausibility of competing explanations is the task to be

performed by a rational jury. Counsel in the present case failed to present such

a case to the jury with their failure to cross-examine competently the witnesses

identifying the Petitioner as the shooter. The jury in the present case was

deprived of the right to hear testimony that could have supplied a “reasonable

doubt.” Counsel’sfailure to present readily available evidence challenging the

eyewitness identification sufficiently undermines confidence in the outcome

of this case to establish prejudice. See, e.g., Avery v. Prelensnik, 548 F.3d 434,

439 (6th Cir. 2008) (counsel’s failure to investigate testimony of potential alibi

witnesses prejudiced defendant’s trial); Higgins v. Renico, 470 F.3d 624, 635

(6th Cir. 2006) (counsel’s failure to cross-examine key identification witness

undermined confidence in outcome of case). Counsel’s failure to conduct an

adequate pretrial investigation, counsel’sfailure to prepare for trial adequately,

and counsel’s failure to use the information available at the time of trial

suffices for a showing of prejudice. Counsel’s deficient actions throughout

their representation of the Petitioner collectively establish a prejudice of such

magnitude that we can reach no conclusion other than that the errors

cumulatively prejudiced the Petitioner’s right to a fair proceeding and

undermined confidence in the outcome of the trial. We conclude that a

reasonable probability exists that absent the deficiencies of counsel, the

outcome of the trial would have been different.

-42-
2010 WL 796939, at *37.

After a thorough examination of McKinney, we find that its facts are distinguishable

from the facts presented by the case presently before us. As we have previously stated, trial

counsel should have hired an investigator to investigate the case more thoroughly. There is

no evidence, however, that such investigation would have led to information that benefitted

the Petitioner. As previously stated, the Petitioner proclaimed his innocence. Trial counsel

relied upon this proclamation in creating and executing his trial strategy. Further, trial

counsel chose not to cross-examine Brian Lovett on his mental health history for fear it

would evoke sympathy toward him from the jury. Unlike the trial counsel in McKinney, trial

counsels’ performance in this case was in most instances not deficient and trial counsel

presented a viable theory of defense based upon their client’s assertions of innocence. We

do not think that any deficient actions by trial counsel collectively establish a prejudice of

such magnitude that the errors cumulatively prejudiced the Petitioner’s right to a fair

proceeding and undermined confidence in the outcome of the trial. In fact, after our

thorough review of the evidence presented at the Petitioner’s trial, we are convinced that his

trial was, in fact, fair. He is not entitled to relief on this issue.

3. Motion to Suppress

The Petitioner contends that trial counsel was ineffective in failing to file a motion to

suppress the evidence seized during the warrantless seizure and search of the Petitioner’s

vehicle. He asserts that, had his trial counsel filed such a motion, the motion would have

been granted and the evidence against him suppressed. The Petitioner concedes that his trial

counsel filed a motion to suppress the evidence seized from his vehicle based upon the fact

that the Petitioner did not consent to the search of his vehicle. The trial court denied this

motion finding that the Petitioner voluntarily consented to the search. The Petitioner

contends, however, that trial counsel also should have challenged the “initial warrantless

entry onto the private premises to ‘seize’ Petitioner Bane’s vehicle and the subsequentsearch

of the vehicle.” He asserts that the legality of the warrantless “seizure” of the vehicle from

private property has not been previously determined. The State counters that the postconviction court correctly determined that the Petitioner did not prove by clear and

convincing evidence that he was prejudiced by counsel’s failure because the evidence proved

that Donna Lovett consented to the initial seizure of the Petitioner’s vehicle and that her

consent waived the Petitioner’s protection against an unreasonable search and seizure of his

vehicle.

The post-conviction court dedicated twenty-three pages of its order denying the

Petitioner post-conviction relief to an in-depth and thorough analysis of this issue. The postconviction court ultimately found that trial counsel was deficient in failing to present the

-43-
suppression arguments raised by the Petitioner but that the Petitioner had not proven

prejudice.

We will not disturb the post-conviction court’s finding that trial counsel was

ineffective for failing to file a motion to suppress based upon the legality of the initial seizure

of the Petitioner’s vehicle. We will turn, therefore, to address whether the post-conviction

court correctly concluded that the Petitioner did not prove that trial counsel’s failure

prejudiced him. On appeal, the Petitioner does not claim that the officers lacked probable

cause to search the automobile but instead contends that there were no exigent circumstances

justifying the search because his vehicle was found parked in the driveway of his private

residence after the Petitioner was placed in custody. Further, because he interprets the law

at the time of his trial to have required exigent circumstances to justify a warrantless search

of his vehicle, he asserts that a motion to suppress based on these grounds would have been

granted. Thus, he contends, trial counsel’s failure to file such a motion prejudiced him and

entitles him to post-conviction relief.

Both the federal and state constitutions protect against unreasonable searches and

seizures. The Fourth Amendment to the United States Constitution provides that “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” Article I, section 7 of the Tennessee

Constitution also guarantees “[t]hat the people shall be secure in their persons, houses, papers

and possessions, from unreasonable searches and seizures.” A search or a seizure without

a warrant is presumptively unreasonable. United States v. Jeffers, 342 U.S. 48, 51 (1951);

Fuqua v. Armour, 543 S.W.2d 64, 66 (Tenn. 1976).

The “automobile exception” to the warrant requirement permits an officer to search

an automobile if the officer has probable cause to believe that the automobile contains

contraband. Carroll v. United States, 267 U.S. 132, 149 (1925). The rationale for the

automobile exception is twofold. California v. Carney, 471 U.S. 386, 392-93 (1985). First,

due to the inherent mobility of automobiles, it is often impractical for officers to obtain

search warrants. Id. at 393. Second, individuals have a reduced expectation of privacy in

their automobiles. Id. An officer who has probable cause to believe that the automobile

contains contraband may either seize the automobile and then obtain a warrant or

immediately search the automobile. Chambers v. Maroney, 399 U.S. 42, 52 (1970)

(emphasis added). “Given probable cause to search, either course is reasonable under the

Fourth Amendment.” Id.

Since the time of the Petitioner’s trial, the United States Supreme Court and the

Tennessee Supreme Court have clarified that neither the United States nor Tennessee

constitutions requires a separate finding of an exigency in addition to a finding of probable

-44-
cause in order for the automobile exception to apply. Maryland v. Dyson, 527 U.S. 465,

466-67 (1999); State v. Saine, 297 S.W.3d 199, 207 (Tenn. 2009). Earlier cases, however,

indicated that the application of the automobile exception had two requirements: probable

cause and exigent circumstances. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 463

(1971); Fuqua, 543 S.W.2d at 67. In Fuqua v. Armour, one case cited by the Petitioner, the

Tennessee Supreme Court likened the exigent circumstances necessary to support a

warrantless search of a vehicle as similar to a vehicle moving “on the public highway which

makes it impracticable to obtain a search warrant and does not apply to authorize a search

or seizure of a vehicle without a warrant after the vehicle has completed its journey and is

at rest on private premises.” Fuqua, 543 S.W.2d at 66.

In State v. Byerley, 635 S.W.2d 511, 515 (Tenn. 1982), the Court revisited its holding

in Fuqua. The Court observed that “[t]o claim that Fuqua stands for the proposition that

exigent circumstances can never occur in relation to a car parked on private property is

erroneous,” noting that the vehicle in question in Fuqua “had been parked in the same place

in a driveway for three weeks, and at a time when the defendant was in custody.” Byerley,

635 S.W.2d at 515. The Court further held that “the fact that a car is parked on private

grounds . . . does not automatically foreclose the occurrence of some exigency permitting a

warrantless search.” Id. at 515.

2

Approximately three years after Byerley, and before the Petitioner’s 1990 trial, the

United States Supreme Court in California v. Carney, 471 U.S. 386, 391 (1985), held that

“even in cases where an automobile was not immediately mobile, the lesser expectation of

privacy resulting from its use as a readily mobile vehicle justified application of the vehicle

exception.” The Court further held that “the pervasive schemes of regulation [of vehicles],

which necessarily lead to reduced expectations of privacy, and the exigencies attendant to

ready mobility justify searches without prior recourse to the authority of a magistrate so long

as the overriding standard of probable cause is met.” Carney, 471 U.S. at 391. The Court

found that the agents had sufficient probable cause to search the vehicle. Id. However, in

upholding the search, the Court did not mention any of the factors bearing upon exigency

such as whether the owner of the vehicle was in custody or whether another person might

have removed the vehicle or the contraband. See State v. Leveye, 796 S.W.2d 948, 952

(Tenn. 1990) (a case discussing Carney that was issued September 24, 1990, which was after

the Petitioner’s trial). Justice Stevens dissented and interpreted the majority opinion as

follows: “In the absence of any evidence of exigency in the circumstances of this case, the

In a case decided after the Petitioner’s trial, this Court examined the Byerley holding and 2

determined the fact that a vehicle is parked on private property does not preclude a finding of exigency. See

also State v. Jason Paul Sherwood, No. M2005-01883-CCA-R3-CD, 2007 WL 189376, *10 (Tenn. Crim.

App., at Nashville, Jan. 26, 2007), no Tenn. R. App. P. 11 application filed.

-45-
Court relies on the inherent mobility of the motor home to create a conclusive presumption

of exigency.” Carney, 471 U.S. at 404 (J. Stevens dissenting). At the time of the Petitioner’s

trial, some federal circuit courts had concurred with the dissent’s interpretation of the

majority opinion. See e.g., United States v. Vasquez, 858 F.2d 1387, 1391 (9th Cir. 1988);

United States v. Paulino, 850 F.2d 93, 94-95 (2nd Cir. 1988); United States v. Rivera, 825

F.2d 152, 158 (7th Cir. 1987).

Thus, at the time of the Petitioner’s trial, there was a question as to whether a separate

finding of exigency was a requirement for application of the vehicle exception to the warrant

requirement in light of the holding in Carney. Regardless, Tennessee law was clear that even

if exigency was a separate requirement, the existence of exigent circumstances did not

depend upon whether the vehicle was seized while on public property or while parked on

private property. Rather, the existence of exigency was to be determined on a case by case

basis.

In the present case the police seized the vehicle while it was on private property. They

entered the property with the consent of Donna Lovett. For the first time in this appeal, the

Petitioner contends that the State did not prove that Donna Lovett offered her consent. He

has waived that issue by his failure to make this objection during his original trial or his first

appeal and by his failure to raise this issue to the post-conviction court during the postconviction proceedings. See Tenn. R. App. P. 10(b).

Having found that the police were lawfully present at the location of the vehicle, we

turn to address whether they properly seized the Petitioner’s vehicle. The parties agree that

the police had probable cause to search the vehicle. If the motion to suppress the initial

seizure of the vehicle had been filed, it is possible, considering that the law at the time was

unclear whether exigent circumstances were necessary to supportsuch a seizure, that the trial

court would have denied the motion based upon the police having probable cause alone.

That being said, we will still examine whether there were also exigent circumstances that

supported the law enforcement officer’s seizure of the Petitioner’s vehicle.

We conclude that there were, in fact, exigent circumstances to justify the seizure and

search of the vehicle by the Lauderdale County Sheriff's Department. Donna Lovett

informed officers that items stolen from the victim’s residence and at least one weapon were

in the trunk of the Petitioner’s vehicle. Information regarding the homicide was partially

corroborated by the Memphis authorities. Law enforcement had legitimate concerns about

the potential for destruction of the evidence in the vehicle. The vehicle was parked next to

the trailer where the Petitioner lived with Donna Lovett and her two teenage sons. Brian

Lovett was not in custody, and the full extent of his participation in the offense was not then

known. Brian and Thomas Lovett were living at the trailer where the vehicle was parked,

-46-
and Brian had been known to drive the vehicle. If the vehicle was left unsecured, Brian and

Thomas Lovett may have been motivated to dispose of the evidence in an effort to assist

either the Petitioner or their mother. Moreover, a danger existed that either Brian or Thomas

Lovett, both of whom had access to the vehicle, could inadvertently destroy or contaminate

the evidence. Thus, even if trial counsel had sought suppression of the items recovered from

the vehicle arguing lack of exigent circumstancessupporting the initialseizure of the vehicle,

we conclude that the trial court would not have granted the motion.

We further conclude that, had the Petitioner’s counsel appealed the denial of this

motion, it would have been upheld on appeal. A few months after the Petitioner’s trial, the

Tennessee Supreme Court released its opinion in Leveye, 796 S.W.2d at 948, in which the

Court adopted the interpretation set forth in Carney and held that the inherent mobility of

vehicles creates a conclusive presumption of exigency provided the officers have probable

cause to believe that the vehicle contains contraband. Leveye, 796 S.W.2d at 952-53 (citing

Carney, 471 U.S. at 392-93). The Leveye Court observed that “[d]istinctions may be made

by the [United States Supreme] Court in future cases between vehicles parked in public

places and elsewhere, or return to some particularized restriction on mobility.” Leveye, 796

S.W.2d at 952. Neither Carney nor Leveye, however, made such a distinction. Therefore,

even if appellate review was sought regarding the suppression motion, the search and seizure

of the Petitioner’s vehicle would have been upheld given the holding in Leveye.

In order to succeed in establishing ineffective assistance of counsel in trial counsel's

failure to file a motion to suppress, the Petitioner must satisfy both prongs of the Strickland

test, showing that trial counsel’s failure to file the motion to suppress was deficient and that

the deficient performance prejudiced the defense. See Vaughn v. State, 202 S.W.3d 106,

120-21 (Tenn. 2006). The Petitioner has failed to establish that, even if trial counsel had

sought suppression of the items found in the trunk of the vehicle based upon the initial search

and seizure of the vehicle by the Lauderdale County Sheriff’s Department, the motion would

have been granted. Accordingly, the Petitioner is not entitled to relief with regard to this

issue.

4. Jury Instructions

The Petitioner takes issue with the instructions offered to the jury in several instances,

for some of which he faults trial counsel, for some of which he faults resentencing counsel,

and for some of which he faults the trial court. The Petitioner takes issue with the jury

instructions from his 1990 trial and his 1997 resentencing hearing.

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a. 1990 Trial

i. Burden of Proof Instruction

The Petitioner contends that at his 1990 trial the trial court failed to correctly instruct

the jury about the burden of proof, and his trial counsel failed to object to the trial court’s

instruction on the burden of proof. The State asserts that the Petitioner waived this issue by

failing to offer more than a cursory argument to support his assertion. The post-conviction

court found that the burden of proof instruction given in the 1990 trial complied with

constitutional mandates and denied the Petitioner relief.

In his brief, the Petitioner contends that the appropriate charge for his jury would have

been:

[T]he [S]tate has the burden of proving the guilt of the defendant beyond a

reasonable doubt, and this burden never shifts but remains on the [S]tate

throughout the trial of the case. The defendant is not required to prove his

innocence.

T.P.I. Crim. 2.02.

The evidence included in the record proves that the trial court instructed the jury as

follows after it was empaneled:

In this case, ladies and gentlemen, you enter upon this investigation

with the presumption that the defendant is not guilty of any crime, and this

presumption stands as a witness for him until it is rebutted and overturned by

competent and credible proof. It is therefore incumbent upon the State before

you can convict the defendant to establish to your satisfaction beyond a

reasonable doubt that the crime charged in the indictment has been committed,

the same was committed within the County of Shelby, the State of Tennessee,

before the finding of the indictment, and that the defendant at bar committed

the crime in such a manner that would make him guilty under the law

heretofore defined and explained to you, which the Court will later do.

Reasonable doubt is that doubt that is engendered by an investigation

of all of the proof in the case and an inability after such investigation to let the

mind rest easily upon the certainty of guilt. Reasonable doubt does not mean

a doubt that may arise from mere possibility because absolute certainty of guilt

is not demanded by the law to convict of any criminal charge but moral

-48-
certainty is required, and this certainty is required as to every proposition of

proof that is requisite to constitute the offense.

The trial court gave the jury this same instruction as part of its jury charge after the parties

offered closing arguments.

“The beyond a reasonable doubt standard is a requirement of due process, but the

Constitution neither prohibits trial courts from defining reasonable doubt nor requires them

to do so as a matter of course.” Victor v. Nebraska, 51 U.S. 1, 5 (1994). Furthermore, “so

long as the court instructs the jury on the necessity that the defendant’s guilt be proved

beyond a reasonable doubt, . . . [t]he Constitution does not require that any particular form

of words be used in advising the jury of the government’s burden of proof.” Id. (citations

omitted). In the case under submission, we conclude that the trial court “sufficiently

described the degree of doubt necessary for acquittal and the degree of proof necessary for

conviction.” See Pettyjohn v. State, 885 S.W.2d 364, 365 (Tenn. Crim. App. 1994).

Accordingly, trial counsel was not ineffective in failing to request the pattern jury instruction,

in failing to object to the trial court’s instruction, or in failing to raise the issue on direct

appeal.

Further, the Petitioner is not entitled to relief based upon the instruction offered to the

jury by the trial court because he did not present it for review in his direct appeal. “A ground

for relief is waived if the petitioner personally or through an attorney failed to present it for

determination in any proceeding before a court of competent jurisdiction in which the ground

could have been presented.” T.C.A. § 40-30-106(g). This issue could have been presented

on direct appeal. Thus, the Petitioner is not entitled to post-conviction relief on this issue.

ii. 1990 Jury Verdict Form

The Petitioner contends trial counsel was ineffective during the penalty phase of the

1990 trial for failing to object to the trial court’s instruction as to the proper verdict form for

death and for failing to appeal the issue. He also contends that he is entitled to postconviction relief based solely upon the trial court’s allegedly improper instructions. The

Tennessee Supreme Court, however, reversed the 1990 jury’s imposition of the death penalty

and remanded the case to the trial court for re-sentencing based upon other grounds. See

Bane, 57 S.W.3d at 418. This issue, therefore, is not properly before us. The Petitioner also

raises this same issue with regard to his 1997 resentencing, and we will address it below.

-49-
b. 1997 Resentencing Hearing

After the Petitioner appealed his 1990 convictions and sentencing, the Tennessee

Supreme Court remanded the case for the Petitioner to be resentenced. This resentencing

occurred in 1997, and the Petitioner contends his resentencing counsel failed to: (1) object

to the jury instructions relative to the appropriate verdict forms and lessening the state’s

burden and failed to raise this issue in the motion for new trial or on appeal; and (2) ensure

that all mitigating circumstances were included in the jury instructions.

i. 1997 Jury Verdict Form

The Petitioner argues that resentencing counsel was ineffective in failing to challenge

the trial court’s instruction as to the proper verdict form for a verdict of life in prison and in

failing to raise the issue on direct appeal. The pertinent portion of the trial court’s instruction

reads as follows:

There is no requirement of jury unanimity as to any particular

mitigating circumstance, or that you agree on the same mitigating

circumstance.

. . . .

If you unanimously determine that no statutory aggravating

circumstance has been proven by the State beyond a reasonable doubt, or if

you unanimously determine that a statutory aggravating circumstance or

circumstances have been proved by the State beyond a reasonable doubt but

that said statutory aggravating circumstance or circumstances do not outweigh

one or more mitigating circumstances, the sentence shall be life imprisonment.

The Petitioner avers that the instruction lessened the State’s burden by requiring that

the jury find that the State failed to prove the aggravating factors unanimously. The

Petitioner, however, concedes that the trial court properly instructed the jury using the pattern

charge that existed at the time of the commission of the offense. The Petitioner states,

“Notwithstanding what the pattern instructions approved at the time [of the Petitioner’strial],

Petitioner Bane does not waiver in his belief that it is unacceptably prejudicial to instruct as

was done at the original trial and at the resentencing trial.” We conclude that the jury was

properly instructed. The Petitioner is not entitled to relief on this issue.

-50-
ii. Instruction of Specific Mitigating Factors

Finally, the Petitioner claims that re-sentencing counsel was ineffective in failing to

ensure that all non-statutory mitigating factors were instructed to the jury. The issue is

waived due to the Petitioner’s failure to offer any argument or citations to case law

supporting his claim. See Tenn. Ct. Crim. App. R. 10(b). Moreover, the trial court was not

required to charge the jury on specific, non-statutory mitigating circumstances at the time of

this offense. See State v. Cauthern, 967 S.W.2d 726, 747 (Tenn. 1998). Thus, the Petitioner

is not entitled to relief on this issue.

5. Constitutionality of the Death Penalty

Finally, the Petitioner raises numerous issues regarding the constitutionality of the

death penalty. We agree with the State that these claims should have been raised in prior

proceedings. Accordingly, the Petitioner’s claims are waived. See T.C.A. § 40-30-106(g).

Regardless of waiver, the Petitioner is not entitled to relief.

The Petitioner alleges that the Tennessee death penalty sentencing statute and the

imposition of the sentence of death in this state violate Amendments 5, 6, 8, and 14 of the

United States Constitution, as well as Article I, sections 8, 9, 16, and 17; Article II, section

2; and Article XI, section 8 of the Tennessee Constitution. He complains that Tennessee’s

death scheme fails to meaningfully narrow the class of eligible defendants. This argument

has previously been addressed and rejected. See State v. Vann, 976 S.W.2d 93, 117-18

(Tenn. 1998); State v. Keen, 926 S.W.2d 727, 742 (Tenn. 1994).

The Petitioner alleges that the appellate review process in death penalty cases is

constitutionally inadequate. He contends that the appellate review process is not

constitutionally meaningful because the appellate courts cannot reweigh proof due to the

absence of written findings concerning mitigating circumstances, because the information

relied upon by the appellate courts for comparative review is inadequate and incomplete, and

because the appellate courts’ methodology of review is flawed. This argument has been

specifically rejected by our Supreme Court on numerous occasions. See State v. Cazes, 875

S.W.2d 253, 270-71 (Tenn. 1994); see also State v. Harris, 839 S.W.2d 54, 77 (Tenn. 1992).

The Tennessee Supreme Court has recently held that, “[w]hile important as an additional

safeguard against arbitrary or capricious sentencing, comparative proportionality review is

not constitutionally required.” State v. Bland, 958 S.W.2d 651, 663 (Tenn. 1997).

The Petitioner complains that unlimited discretion is vested in the prosecutor as to

whether to seek the death penalty. This argument has been rejected. See State v. Hines, 919

S.W.2d 573, 582 (Tenn. 1995). The Petitioner contends that the unlimited discretion of the

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thirty-one elected District Attorneys General violates principles set out in Bush v. Gore, 531

U.S. 98 (2000). This Court has previously considered and rejected this claim. See David

Keen v. State, No. W2004-02159-CCA-R3-PD, 2006 WL 1540258, at *69 (Tenn. Crim.

App., at Jackson, June 5, 2006), perm. app. denied (Tenn. 2006).

The Petitioner argues that the death sentence is unconstitutional because it infringes

upon his fundamental right to life. This complaint is contrary to settled precedent as

reflected in Cauthern v. State, 145 S.W.3d 571, 629 (Tenn. 2004).

The Petitioner asserts that his sentence of death violates the Due Process Clause,

Article I, section 8 of the Tennessee Constitution and the Fourteenth Amendment to the

United States Constitution. He argues that his indictment was flawed because the

aggravating circumstances that made him eligible for the death penalty were not submitted

to the grand jury and not returned in the indictment. The Tennessee Supreme Court has

consistently rejected this argument by holding that aggravating circumstances need not be

pled in the indictment. State v. Reid, 164 S.W.3d 286, 312 (Tenn. 2005); State v. Berry, 141

S.W.3d 549, 562 (Tenn. 2004); State v. Holton, 126 S.W.3d 845, 863 (Tenn. 2004).

Finally, the Petitioner complains that Tennessee’s imposition of the death penalty

violates United States treaties and the federal constitution’s Supremacy Clause. The

Petitioner contends that the Supremacy Clause is violated when his rights under treaties and

customary international law to which the United States is bound are disregarded. Arguments

that the death penalty is unconstitutional under international laws and treaties have

systematically been rejected by the courts. See State v. Odom, 137 S.W.3d 572, 600 (Tenn.

2004); Chalmers, 2008 WL 2521224, at *45-46.

III. Conclusion

For the foregoing reasons, we conclude that the Petitioner is not entitled to postconviction relief. Accordingly, we affirm the judgment of the post-conviction court.

_______________________________

ROBERT W. WEDEMEYER, JUDGE

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