# FILED
February 5, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1998 SESSION

GARY JUNE CAUGHR ON, )

) Appellant, ) No. 03C01-9707-CC-00301

) ) Sevier County v. ) ) Honorable John K. Byers, Judge ) (By designation) STATE OF TENNESSEE, ) ) (Post-Co nviction - - Death Pe nalty) Appellee. ) For the Appellant : For the Appellee : Randall E. Reagan John Knox Walkup 2643 Kingston Pike Attorney General of Tennessee Knoxville, TN 37919 and Kenneth W. Rucker Assistant Attorney Gener al of Tennessee Gerald L. Gulley, Jr. 425 Fifth Avenue North 607 Market Street Nashville, TN 37243-0493 P.O Box 1708 Knoxville, TN 3790 Alfred C. Schumtzer District Attorney General and Steve Hawkins Assistant District A

ttorney General 125 Court Avenue Sevierville, TN 3

7862

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Gary June C aughron, appeals as of right from the Sevier County Circuit Cour

t’s denial of post-convic tion relief as to the guilt phase of his trial. He was convicted i n 1990 for the first degree murder of Ann Robertson Jones and received the death penalty. He was also convicted of first degree burglary and assault with the intent to commit r ape for which he receiv ed consecutive ten-year sentences. The convictions and sentences were affirmed on direct appeal to the Tennessee Supreme Court. State v. Caughron , 855 S.W.2d 526 (Tenn. 1993), cert. denied , 510 U.S. 979, 114 S. Ct. 475 (1993).

The petitioner filed his post-c onviction petition on M ay 18, 1994. Evidentiary hearings were held on November 13, 1996, February 10, 1997, and March 14, 1997, and the trial court s ubsequently entered its findings and conclusions th at granted the petitioner rel ief as to the ineffective assist ance of counsel claim at the penalty phase of the trial but denied the petition in all oth er respects. The petitioner contends that the trial cour t erred in denying hi m full relief, generally claiming the following: (1) the petitioner received the ineffective a ssistance of

counsel as guaranteed by the Six th and Fourteenth Amendments to the United States Constitution at the guilt phase of his trial; (2) the trial court erred i n failing togrant the petitioner funds to retain certain expert/investigative services; (3) the trial court erred in ruling that the original convic ting trial was not defective due to the sys tematic underrepresentation of women on Sevier County Circuit Court juries. In response, the state contends that the petitioner receiv ed the effective assistance of counsel at the guilt phase o f the trial, that the petitioner did not demonstrate a particularized need for an investigator or an e xpert to examine the jur y selection process and jury composi tions in Sevier County, and that the petitioner failed to3

establish that any underr epresentation of women in the v enire was a result of the systematic exclusion of women on Sevier County Circuit Court juries.

The supreme court’s direct appeal opinion provides the fo llowing synopsis of the evidence presented at the pet itioner’s trial:

In the early aftern oon o f July 11, 1987, Christy Jones Scott, the daughter of the victim, 42- yea r-old Ann Robertson Jones, discovered her mother’s partially clothed body lying facedo wn on a bed in her home in Pigeon Forge. Jones’s legs and arms had been bound and tied to the bed with strips of blue terry cloth and pieces of sheer, off-white material like that u sed for table cloths and curtains. There was a gag tied acro ss her mouth, and strips of the blue t erry cloth hadbee n wrapped tightly around her neck. According to the state’s fo rensic pathologist, D r. Cleland Blake, Jones had suffered several "blunt traumatic contusions" to her head. These injuries were consistent with those c aused by a blunt or rounde d object a nd would h ave rendered Jones unconsciousat some point. Her skull had been fractured and the cartilage in her nose di splac ed by the beating. She had bled extensively from her mouth and nose. There was a "patch" of "scrapi ng type of injuries caused by some k ind of slender linear object . . . like whipping marks" on the left back side of her ches t beneath her shoulder blades. On the right buttock were "three linear imprints, . . . superfici al bruisesthat fit perfectly with four fingers of a hand." Dr. Blake stated that these r epresented a "hard slap injur y to the buttock" inflicted while the victim was sti ll alive. The terry cloth stri ps around the victim’s neck had been pull ed so ti ghtly that the y had cut off the flow of blood to the vic tim ’s brain. The gag, bound so tightly that it cu t a deep gr oove into the corners of the victim’s mo uth, combined with the hemorrhag ing in the nas a l passages, had caused her to suffocate. Dr. Blake concluded that Jones ha

d died as

a result of a sphyxiation while unconscious. Examination of the crimescene revealed that the door to the bedroo m where the body was found had been forced open. A purse and its contents l ay strewn in the hal l. The phone lines to the house had been cut. Sometime within the following two or three weeks , Christy Jones Sco tt discovered a silver, turquoi se and coral ring w ith a thunderbird design lying on the ground besideher mother’s truck, w hich was still par

ked at her mother’s house. The key witness in th is case was April Marie Ward, who was 14 years old at the time of t he killing. Almost ev

erything that the jury learned about Ann Jones’s death, other than the description of the crime scenegi ven by inv estigator s, came from Ap ril’s test imony. Th at testim ony is summ arized bel ow.4 In early summer 1987, accordi ng to April, she a nd th e 27-year-old Defendant met and became roman ticallyinvolved. April Ward’s mother, Lettie Ma rie Cruze, worked at the Turquoise JewelryShop in Settler’s Village, a group of shops in Pigeon Forge. Ann Jones ran the Wild Hare Tee Shirt Shop in the same shopping center. Apr il and the Defenda nt, wh o was working on a nearby construction project, met on the cove red portico (commonly referr ed to as "the porch") o f Settler’ s Village a lmost eve ry day. One night, two or three weeks before the murder, Ann Jones made the Defendant Caughron, who ha d been drinking, leave her shop because he was acting i n a disorderly manner. Jones instructed him to stay away. This upset Caughron, who told April Ward that he would like to c atch Ann Jones "out one night" and "s li ce her throat." The Defendant sugg ested that April accompany Jones to her house after w ork and give him directionson how to get there. H e also asked Ap ril to watc h Jones as she closed her shop and see where she put her money, and to find out if Jo nes was married and had a telephone or pets. Because she knew that h er mot her would h ave disapproved of her relationship with the Defendantif she had known his true age, Ap ril had t old her mother that the Defendant w as 1 8. April then became upset w ith Ann Jones because of a conversation Jones had had with her

mother that led to her mother’s disapproval of the relationsh ip. A pril testified that she hated Jones because she had tried t o separate her and the Defendant by going to her mother. April also said that she had told the Defendant w hat Jones had done. The week before the murder, accor ding to April, she and the Defendant began talk ing ab out going to the victim’s house. She said that the Defendant instr ucte d her to bring a towel and a knife "t o gut" Ann Jones. On the afternoon of Friday, July 10, around3:00 or 4:00 p.m., the Defendant c ame byApril’s h ouse in an older model green and w hite 442 Oldsmobile Cutlass that he had just purchased. He told April that he would return that nig ht and that the two would go to the victim’s house as planned

. April further testified that after her mother went to sleep, she cut a blue terry cloth tow el into strips and wai

ted f o r Caughron to arrive. He picked her up sometime after midni ght. He had been drinking but, accordi ng to April was "not drunk." (Another witness, Vicky Worth, testified that shehad seen the Defendant drinking beer and sm oking marijuana at a restaurant

around 10 or 11 o’clock that night.) On their w

ayto Ann Jones’s house April and the Defendant drank alcohol and took drugs. They

walked to the victi m’s house from the parking lo t of a nearby nursing home, w here they had left the Oldsmobile. The Defendant car rie d with him the h andle of a po ol stick, around which he had placed gray duct tape, and1 The dissenti ng opinion states the followi ng: The m ajori ty’ s recapitul ation of the evidence in thi s case demonstrates that th e test im ony of the d efen dan t’s teenaged accomplice, Apri l Ward, was not only cruci al t o the state’s case against Gary Caug hron, it was the s tate’s case against

him. The FBI develop ed no forensic ev idence implica tin g Caughron, despit e extensive t

esting on fingerpri nts, shoeprints,blood and other fl uids, and fibers. The boot pri nt on the vi ctim’s bedroom door established tha t someone other than the defendant had ki cked in th e door. Stateme nt s that Caughron made to f riends and associates were incri minating to some ex ten t, but f or the most part were br ie f and am biguous . These statem ents certa inly wou ld not supp ort a m urde r con viction in the absence of April

Ward’s testimony. 855 S.W.2d at 544.

5 pieces of the sheer material that he alread y had in his car. The Defendant gave April a sur vival knife. April testified that Caughron enter ed the house by himself and then summoned her inside. As they we nt down the hall to Jones’s bedroom, Apr il could hear

her calling, "Who is it? What are you doing?" She testified that the Defendant kicked in the bedroom door, which was locked. Accord ing to April, Jones cried and pleaded wi th them not to hurt her, bu t the two told her she w

as going to die. April later testified that afterthe Defendant hit Jones several times with the pool stick, Jones fell acr oss h er bed, became silent and stopped moaning. As April described the scene, the Defendant t urned Jones on her stomach and tried unsucc essfully to have sex with her. Complaining that she had "ti ghtened up on him," he then slapped the v ictim o n the right buttock. Unabl e to complete the sex act with Jones, the Defendant

suggested sex with April. She said t hat after the two of them undressed, Caughron rubbed the victim’s bl ood on b oth t heir bodies as they engaged in sex

on the floor beside the bed wher e Jones lay. Finally, April testified, Caughron insis te d t hat they drink some of the victim’s blood from shot g lasses that he produced for the occasion. Although April’s testimony was confused as to the exact chronology, it appears

that atsome point, Jones was gagged to stop her screaming and ti ed up with the strips of tow el and sheer material. A pri l said that the Defendant tighte ned the terrycloth s trip around Jones’s neck, causing the victim to gasp. April testified that she then hit the vict im in the h ead two times. After drinking the blood , April said, she went to the bathroom to throw up, but did not. When she returned to the bedroom, she saw the De fendant striking Jones’s ba ck with the pool stick. According to April,the Defendantdumped out the contents of Jon es’s purse as they left and took w hat appeared to be a large amount of money. Outside, she said, the Defendant used the kn ife he h ad given her to cut the telephone lines to make it appear that whoever had k illed Jones had not wanted her to use the telephone. 1 Caughron , 855 S.W.2d at 530-31.6 The aggravating ci rcumstance found by the jury to warrant the death penalty was that the murder “was especially heinous, atrocious, or cruel in that it involved torture or

depravity of mind . . . . ” T.C.A. § 39-2-203(i)( 5). In reviewing

the case, the supreme court concl uded that the evidence fully supported the jury’s find ing of the aggravating ci rcumstance. 855 S.W.2d at 543-44.

The defense proof at the guilt phase of the tr ial consisted of the testimony of forensic scientists from the Tenness ee Bureau of Investigation ( T.B.I.) who testified that no evidence gathered at the scene connected the petitioner to the crime. None of the petitioner’s fingerpr ints, blood or other fluids, fibers, hair or shoeprints were found at the scene. Three witnesses testified that it was not unusual for the petitioner to spraypaint his car, an d one of these witnesses testi fied that the petitioner had retur ned to his grandmother’s home on the night of the murder at approx imately 11:00 or 12:00 p.m. One of the daughters of the vi ctim testified that Kenny Og le, an ex-boyfriend, had broken into the victim’ s home in September of 1986 and threatened the witness and attempted to bind her with s trips of cloth.
At the penalty phase of the tria l, the state called no witnesses. The defense called the petitioner’s aunt to testify concerning the petitioner’s family h istory, a minister to testify that the petitioner was the "[f]ines t young prisoner I’v

e ever saw," and a jailer to testify that the petitioner had never pr esented any real problems. A psychologist, Dr.Madeline Pareau, testified that the petitioner was the s on of an alcoholic father and an immature mother. She said that his mother re married an abusive stepfather, and the petitioner stayed with r elatives throughout hi s childhood. She said that his I.Q. wa s measured at 78, and he attended speci al education classes.

POST-CONVICTION EVIDENTIARY HEARING7 Helen Loveday, former cl erk of the Sevier County Circuit Court and secretary of the Sevier County Jury Commission, testified concerning the procedure involved in select ing jurors at the time of the petitioner’s trial. She testified that the judge of the circuit court would order the jury commission to draw names from the jury pool. The names in the pool came from a box containing about two thou sand names. The names came from a pro rata apportionment of persons from each of the seventeen voting districts

in the county. Ms. Lov eday stated that she did not k now exactly how jurors’ names were put into the box but that she thoug ht that voting lists , tax lists, and inquiries into the community were used. When the names were dr awn from the pool, a list w as made a nd titl ed "Jury Commiss ion Repo rt." The identic al list sent to the sheri

ffwas titled "Sheriff’s Venire." Jurors were summoned from the list. On crossexamination, Ms. Loveday stated that she had no knowle dge that any person w

as systematically ex

cluded from either the jury pool or jury veni re based upon their gender. On redirect examination, the jury list of persons serving on juries

from November 1989 to March 1990 was admitted into evidence.

Alfred Ne wman, an e xperience d jury comm issioner from Sevi er County, testified that in 1989, for exampl e, if three thousand jurors w ere needed, the commission would get a printout of all the voters in each district, and they would choose ten percent of the voters in e ach district to be on the l ist. The commission would try to choose an equal percentage of men an d women. The chosen names wer e then typed, folded and put into a box. Mr.Newman stated that the names always came from the election commission. He furthe r stated that although the names were printed alphabetically from each voting district, the commission would go over the whole listrather than take the first few people whose names started with "A." On crossexamination, Mr. Newman testified that he did not know of anyone who systematically sought to exclude wom en from sitting on a jury in Sevi er County.8 The petitioner was repres ented by two attorney

s at the trial. The lead attorney testified that he had been retained to represent the peti tioner for fifteen thousand dollars. He stated that he had tried two death penal ty cases before the petitioner’s case and that two investigators and another attorney had assisted him in this case. When questioned about interv iewing witness

es, the attorney stated that the investigators interviewed witnesses and placed memoranda in the case file. He could not remember if any of the petitioner ’s school records had been o btained. He testified that he had not contacted law enforcement from other states in wh ich the petitioner had lived and that neither he nor his investigators

had traveled to those states to interview witnesses concerning

the petitioner’s past.
The attorney stated that the petitioner was interv iewed the day before tri al by Dr. Pareau, a psy

chologist. The attorney could not remember what ty pe of psychological ev

aluation had been performed by Dr. Pareau. He recalled that only four people testified at the sentencing phase of the trial and that he did n ot request funds for a mitigation specialis

t to retrieve record s from the petitioner’s past. He admitted that when the district attorney’s office supplied him with the petitioner’s arrest record, he did not send anyone to Ohio to check on those prior convic

tions and the facts surrounding them. He stated that he did not obtain any transcripts from guilty plea hearings or trials in any of these offenses nor did he inv estigate the validit

y of the underlying offenses.
The attorney recalled that on e of his investigators contacted the petitioner’s mother and that c ontact possibly was

made with an aunt. He stated that he obtained only a partial employment history in that he only checked the petitioner’s employment in relation to w here he was workin g around the time the murder oc curred. He admitted that he did not perform an i ndependent investigation t o determine whether the petitioner had a history of alcohol or drug abuse.9 The attor

ney further admitted tha t he did n ot requ est the a ssista nce of a blood or fingerprint ex

pert at trial but rather depended on the state expert. H e stated that even though one of the items introduced into evidence at trial was fingernail clippings from the vic

tim, and even though alleg ations had been made that the petitioner had scratches on him the day after the incident, he did not secure the services of an expert to test the fingernail clippings. He stated that he could not recall how many co nferen ces he ha d with the p etitione r before trial but t hat he wou ld not ha ve spoken to him every day or every week.He stated that he filed motions c hallenging the constitutionality of the death penalty and a motion reques ting a change of venue but that he did not request an expert to investigate and testify as to the extent and possible effects of the media coverage. He s tated that he filed a motion to suppres s the petitioner’s statements to tw o investigators but that he had only been giv en the statements on the evening the jury was selected and did not have time to look at them. He also reported that he w as not given the statements the petitioner purportedly made to other prisoners until that same evening and that he di d not have time to invest igate the inmates who testified at tr ial concerning these st

atements and their prior rec ords or the circumstances surroundi ng the petitioner’s state ments. He recalled that approximately thirt

y pages of Jencks material had been given to him that s ame evening. He stated that he had only tw elve to sixteen minutes to review inconsi stent statements of the state’s most important w itness, the codefendant, but the state o bjected that the issue had been raised on direc t appeal, and the objection w as sustained. The attorney stated that he recalled making special jury requests.

The attorney was quest ioned concerning a witness named Michael Farreget who purpor

tedly had indicated that he c ould have identified Robert Tr uby as being at the victim’s

house on the evening of the murder. The attorney stated that he could not recall ever having talked to this witness or the state ever having provided him with this witness’s statement. He stated that he could not imagine knowing about this2 The direct appeal record reveal s that Ms. Worth was call ed by the st ate as a wit ness and did te stify that the pe titioner did not a ppear to have sc ratches on him following the incident. 10 witness and not calling him to testify, but he admitted that the copy of Mr. Farreget’s statement must have come from his file beca use it came from the Capital Case Resource Center.

The attorney recalled that he filed a motion for a continuance becaus e a witness, George Tippens , could not be present on the day of trial due to a back injur y. The attorney recalled that M r. Tippens would have te stified that he searched the area surrounding the victim’s home for several days and did not find a silver and turquoise ring belonging to the petitioner that was later found by one of the victim’s daughters.

The attorney was questioned as to whether he would have called Vicky Worth who allegedly would hav e testified that she saw the petitioner walking on the night of the murder rather than in a car. She purportedly would have also testi

fied that she saw the petition er after the time the murd er occurre d and tha t he did no t have blood or scr

atches on him

. 2 The attorney stated that if he had known about this witness, he would have called her.

The attorney acknowledged that he retained the services of Dr. Dennis Spjut, a psychologist , to examine the petitioner. He acknowledged rec eiving a letter from Dr. Spjut in which the doctor indicated that the att orney might explor

e the possibility of alcohol or drug abuse and brain damag e. He testified that despite the letter, he did not have the petitioner examined by a neuropsychologist. H e also did not call Dr. Spjut to testi

fy on the petitioner’s behalf at trial. The attorney stat ed that he recalled discussing with the petitioner whether he should testify, and it was his recollection that the petit ioner decided not to testify at the guilt phase and that he, as counsel, had strong feeling s that the petitioner should no t testify at the sentencing phase of the trial.11 The attorney recalled that du ring the jury sel ection, a Mr. Hodge w as presented as a potential juror. He stated that at the time Mr. Hodge was called, the attorney had used all of the petitioner’s peremptory challenges, and he challenged Mr. Hodge for cause, but the chall enge was not granted. The attorney also recalle d that Mr. Hodge blurted out during the cross-examination of April W ard, "What diff erence does it make?" He stated that he di d not object at the time the statement was made because he was hoping that nobody heard Mr. Hodge and that it would go away. He brought the outburst to the tr ial court’s attention outs ide the presence of the jury after the cross-examination of M s. Ward. He recalled that it was later determined that another juror heard Mr. Hodge and that the statement was loud enough f or the court reporter to hear and transc ribe it. The attorney st ated that Mr. Hodge wa s not replaced with an alternate juror

until just before the jury retired to deliberate. It was later determined that the alternate juror who replaced Mr. Hodge owned a wrecker service that had once towed the petiti oner’s car. The attorney testified that he did not interv iew any of the jurors after the v erdict because there was a rule in that particular circuit that counsel could not talk to ju rors. He admitted that he di d not challenge that rule on appeal.
The attorney admitted that parts of the record, including the voir dire, closing arguments and j ury instructions i n the guilt phase, wer e not transcribed and that he did not file a motion to supplement the reco rd with these transcriptions. However, he indicated that co-counsel was primarily i n charge of the appeal. The attorney then testified that his investigation had been primarily directed toward the guilt phase because there was littl e, if any, physical ev idence linking the petit ioner to the crime.
On cross-examination, the attorney stated that one-third to one-half of his practice at the time of the petiti oner’s trial was dev oted to criminal law. He stated that he had tried at least two prior death penalty cases and numerous homicide and first12

degree murder ca ses. He stated th at he had pract iced extensively bef ore Judge Kenneth Porter, t he trial ju dge in the convictin g case, an d that he would have strenuously objected to any witnesses called by

the state of whom he had not been notified. The attorney stated that he recalled that he had discov ery of all the witnes

ses called by the state. To refr esh his memory, the attorney was shown motions to suppress the petitioner’s statements and a motion to dismiss challenging the constitutionality of the death penalty. He was al so shown a motion in wh ich he requested a jury ins

truction regarding legal presumptions.
The attorney stated that his c riminal investigat or, Ms. Van Helton, and Jane LaFollette assisted hi m in this case and that he had plac ed a great deal of confidence in their assessme nts. He stated th at the three of them had weekly me etings concerning their inv

estigations.
The attorney recalled that a psychologist had been r etained by the petitioner’s aunt and that the ps ychologist examined

the petitioner and testified at the sentencing phase of the trial.The attorney stated that it was his understanding that the petitioner’s aunt raised h im and that she had been primaril y responsible for acqui ring legal representation for hi m. She was also the person from whom the attorney obtained most of his information concerning the petitioner’s backgr ound.
When questioned concerning his performance, the attorney stated that he thought he had done as good a job as he could have done with the judge denying his motion for a continuance although stateme nts of witnesses were not provided to him until the day before trial . The attorney stated that he r elied upon experts from the T.B.I. laboratory to testify concerning the lack of phy sical evidence linki ng the petitioner to the crime. He testified that it was his opinion that bei ng able to use the state’s w itnesses to prove the petitioner’s case was advantageous and that other experts w ere not needed.3 The direct appeal record reveal s that th e photograph was i ntroduced i nto evidence.

13 He stated that his inves tigators had done a good jo b in this case. In summary , he stated that he thought he raise d every issue on appeal that needed to be raised and he had spent adequate time conferring with the petitioner.

The petitioner’s post-conv iction attorney informed the court that he was not calling the former co-counsel for the petitioner’s trial attorney. How ever, the state was allowed to cal l co-counsel out of order. C o-counsel testified that he ass isted in the defense of the petitioner and that he pri marily drafted motions and condu cted the research needed for the case. He also stated that he prep ared the appellate brief in the case. He recalled that he was present when the lead attorney discussed w ith the petitioner the option of testifying during the guilt phase of the trial and that there was concern about the petitioner’s prior record and certai n statements the petitioner had made to detectives and cellmat es. He stated that it w

as the petitioner’s decis ion not to testify. He recalled that the petitioner also elected not to testify at the se ntencing phase of the trial and that defense counsel w as successful in keeping the petitioner’s prior criminal record from the jur y. He stated that he w as primarily respons ible for coordinating the psychological services with Dr. Brietstein’s office and that he was satisfied with their findi ngs. He recalled that D r. Pareau from Dr. Brietst ein’s office testified at the sentencing phase of the trial. He stated that although the jury voir dire and closing arguments were not transcribed, he did not recognize any errors in those phases of the trial.

On cross-examination, c o-counsel testified that he w anted a mug shot photograph of the petitioner taken within three or four day s of the crime to be introduced because it show ed that the petitioner had no scr atches on him. He stated that it was the lead attorney’s decision not to use the photograph because he thought it made the petitioner look bad. 3 He was shown a note dated January 27, 1990, and14

signed by investigator Jane LaFollette which stated that she had spoken with Dr. Brietstein that day, tw

o days before trial, and that he told her that he could not be at the trial. Co-counsel recalled that Dr. Brietst ein suggested that Dr. Pareau examine the petitioner and that he requested that the petitioner be tran sported to Dr. Pareau’s office. Co-counsel recalled that Dr. Pareau had not spoke n with the petitioner before that time.
Co-counsel acknowledg ed that he did not request that the state’s closing argument be transcribed, but he recalled that he included as an issue on appeal a statement made by the distric t attorney concerning "running rabbits." The state responded that this issue w as waived because cl osing arguments had not been transcribed, and the Tennessee Supr eme Court refused to address the i ssue. Cocounsel admitted that he did not hav e the voir dire trans

cribed even though he rai sed issues on appeal concerning certain jurors. He al so stated that he did not raise issues concerning the constituti onality of the death penalty on appeal.

Bonnie Loveday, an employ ee of the Sevier County El ection Commission, testified that she worked as Register at Large for eighteen and one-half years. Ms. Loveday was shown copies of sheriff’s venires for a two-year period. According to Ms. Loveday’s calculat ions, thr ee hundr ed and f ifty-five males an d one hun dred and fiftytwo females could be identified on the lists. Howev er, approximately one h undred and forty persons whose names were on the venires could not be found on the com puter in order to verify their gender.

Dr. Ann Marie Charv

at, a certified clinical sociologist, testified that she had been involved in tw

o capital case post-conv iction hearings and three or four capital case sentencing hearings before her testimony in this case. She said that she is a mitigation specialist

whose role is to identify and substantiate mitig ating factors.15 Dr. Charvat explained that she met the petitioner in 1994 when she was employed by the Capital Case Resource Center, and s he was asked to develop a social history for him. She stated that she first met with the petitioner and inte rviewed him concerning his backgr

ound. She said she then construc ted a time line in whic

h she attempted to do

cument the chr

onology of the petitione r’s life. I n construct ing the time line, Dr. Charvat s

tated that she interview ed approximately forty

people. Dr. Charvat testified that she traveled to Peoria, Illinois, w here the petitioner grew up, and substantiated severe phy sical abuse and neglect from the petitioner’s parents. S he stated that she learned that the pet itioner had been an exploit ed child who had suffered physical abuse, extr

eme emotional maltreatment, and sex ual abuse. She stated that the witnesses that she i nterviewed in Peori a stated that no one had contacted them prior to the petitioner’s trial.

Dr. Charvat expl ained that in addition to inter viewing witnesses, she collected documents that rev ealed that the petitioner had atten ded thirteen different schools. She also learned that the petitioner was abs ent from school an inordinate amount of time and that at times, agenci es and schools had attempted to inter vene. However, when the

petitioner’s parents w

ere contacted by authoriti es, they would move. Some of the people Dr. Charvat interviewed stated that the petitioner stayed out of school on numerous occasions bec ause he was bruised, and hi s stepfather did not want authorities to lear n of the abuse.
Dr. Charvat expl ained that she review ed the mitigation efforts made on the petitioner’s behalf at tri al. She stated that after rev iewing the transcr

ipts of the trial and interviewing

a number of people who partici pated in the hearing, she bel ieved mitigation efforts were i nsufficient. She questioned Dr.Pareau’s reliance on one interview with the petitioner and his parents in reaching an opinion on mitigation. Dr. Charvat also noted that no on e interviewed people in Illinois about the petit ioner even16

though the petitioner spent hi s childhood there. She stated that it was her professiona l opinion that the social hist ory of the petitioner as est ablished at the sentencing hea ring was inadequate.

Dr. Mary Pam Auble, a ne uropsychologist, tes tified that she conducted an evaluation of the petitioner ba sed upon an interview with the petitioner, v arious background records incl uding Dr. Charvat’ s report, testimony from the sentencing hearing, and a psychological evaluation of the petitioner conducted prior to trial by Dr. Pareau. She also said she conduc ted a neuropsychologica l evaluation of the petitioner that included the results of st andardized tests taken by the petitioner involv

ing the assessment of intelligence, memory, attention, and personality. Dr. Auble’s report was introduced into evidence. Dr. Auble testified that her assessment revealed that th e petitioner suffered from dementia and moderate depression. She defined dementia as memory impairment.

Dr. Auble stated that because the tests themselves do not reveal much about a patient’s history , she relied on the petitioner ’s social history

to determine that he had suffered physical and sexual abuse. She stated that he had no consistent care givers and that his famil y history rev

ealed that his father and brother h ad suffered from a form of psychosis.

Dr. Auble stated that her evaluation revealed that when the petitioner is in an emotional or stressful situation, his thinking becomes mu ddled, and he avoids those types of situations. She testified that intoxicants would decrease the pe titioner’s impulse control and affect his reas oning. It was Dr. Auble’s opinion that the petiti oner would have significantly less control over his actions in emotional situations, and his control would be wor

se if he were intoxic

ated. Dr. Auble stated that pr ior to the17

petitioner’s trial, D r. Pareau had not conducted a neurop sychological ev

aluation. She stated that additional testing should have been done.
On cross-examination, Dr. Auble admitted that the testing similar to hers that Dr. Pareau performed present ed similar results. She admitted that being in pris on would contribute to a person’s depression. She also admitted that if the petitioner were facing trial on that day, she would find him competent to stand trial. On redirect examination, Dr. Auble st ated that she believed that the petitioner would have a diminished capacity to form s pecific intent in a highly emotional situation in w hich he had consumed intoxicants.

Holly Carr, deputy

clerk for the Sevier C

ounty Circuit Court

Clerk’s Office, testified that she was the c aretaker of the criminal fili ngs in that office. She submitted a certifie d copy of t he final jury in the p etitione r’s trial. T he copy reve aled tha t the jury was composed of six males and six females. The clerk al so submitted a certified copy of the death penalty notice in the petitioner’s case. On cross-examinatio n, Ms. Carr testified that on the verdic t form, the jurors did not use the language that the murder was heinous, atrocious or cruel but used terminolog y including cruel , torture and depravity. She also admitted that she did not know whether the petitioner’s counsel received a copy of the notice that the state would be seeking the death pena lty before trial.

The trial court entered w ritten findings of fact and conclus ions of law stating th at the pe titioner ’s claims c oncerne d four gen eral area s: (1) the ineffe ctive assistance of counsel, (2) t rial court errors, (3) prosecutorial misc onduct and (4) the constitutionality of the death penalty statutes. The tri al court concluded that the petitioner failed to show prejudice by any of the accusations made against cou nsel during th e guilt pha se of the trial. It a lso state d that th e petitio ner did no t prove18

ineffective assistance of counsel during the appellate stag e of his trial. Howev er, the court con cluded th at the pe titioner met his bu rden of p roof rela tive to the ineffe ctive assistance of counsel at the sentencing phase of the trial and that there was a reasonable probability that if mitigation evidenc e had been presented, the result of the sentencing phase of the trial would have been different. The tr ial court ordered a new sentencing hearing.

The trial court concluded that alleged guilt phase er

rors concerning the convicting court’ s refusal to grant funds for ex pert and investigativ

e services, failure to advise the petitioner r

egarding his failure t

o testify, admission of irr elevant and prejudicial evidence, failure to allow the peti tioner to depose George Tippens , failure to address juror misconduct, and denial of the petitione r’s right to compulsory process were either waived for failure to raise them at an earlier hearing or were without merit because the petitioner had failed t o present adequate proof at the post- conviction evidentiary hearings. The trial court concl uded that alleged penalty ph ase errors of the convicting court w

ere moot due to the trial cour t’s decision to grant a

new sentencing hearing.

The trial court concluded that all claims regardi ng prosecutorial misconduct were either waived for failure to pr esent them at an earlier heari ng or that the petitioner failed to meet his burden of proof due to the failure to pres ent proof at the evidentiary hearings. All errors concer ning the constitutionality of the death penalty were deemed waived for failure to raise them at an earl ier hearing or wer e found to be without merit.
In reviewing the trial court’s determinations, we are guided by certain rules under the post-convicti on law applicable to thi s case. The burden was on the petitioner at the hearing to prove his case by a preponderanc e of the evidence. On appeal, the19

trial court’s findings

are conclusive unless

the record preponderates ag ainst its determinations. Turner v. State , 698 S.W.2d 90, 91 (Tenn. Crim. App. 1985). The burden now rests on the appeal ing party to illus trate why the recor

d preponderates against the judgment. Black v. State , 794 S.W.2d 752, 75 5 (Tenn. Crim. App. 1990).

I. EFFECTIVE A

SSISTANCE OF C

OUNSEL Under the Sixth Amendment, w hen a claim of ineffective assist ance of counsel is made, the burden is upon the petitioner to sho w (1) that counsel’s performance was deficient, and (2) that, but fo r the deficiency, there is a reasonable probability that the res ult would have been different. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 ( 1984). Also, we note that the approach to the issue of the ineffective assista nce of counsel does not have to st art with an analysi s of an attorney’s conduct. If pr ejudice is not shown, w e need not seek to determine the validity of the allegations about deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069.

The pet itioner f irst asser ts that co unsel was i neffe ctive for failing t o have the jury voir di re, the closing argu ments, and the guilt phase jur y instructions transcribed. According to the petitioner, the problem is compound ed because the court reporter and the t rial court clerk have now stated that the tapes of the heari ng have been misplaced and possibly destroyed. The petitioner contends that the transcript of the voir dire was

especially important because two issues reg arding jurors wer e raised on appeal. On appeal, the petitione r questioned the qualific ations of two jurors, one who was related to a state witness by mar riage and another who ow ned the wrecker service that towed the petitioner’s car when a state’s witness worked on it. However, the supreme court addressed the q ualification issue on direc t appeal and concluded that the petitioner had not show n that the jurors were biased or prejudiced.20 The petitioner raised a second issue about a juror who made inappropriate comments during the cross-examination of th e state’s primary witness, April Ward. The juror commented, "What’s the difference?" when defense c ounsel asked Ms. Ward why she lied to law enforcement off icers regarding whom she had told about the crime. Howev er, on direct appeal, the supr eme court dismissed this is sue, concluding that the petiti oner waived the iss ue by not requesting a mistrial after the juror was dismissed by the trial court. The supreme court further concluded that even if not waived, the issue was without merit because there was no indication in the record that jurors who remained were prejudiced by the juror’s remark.

The petitioner also contends that counsel was ineffective for failing to have the jury instr

uctions and closing arg uments from the guilt phase of the tri al transcribed. At the post-conviction hearing, co-counsel testified that he r ecalled that the aforementioned portions of the tran script had not been prepared but stated that he did not raise any issues on appeal that would have r equired those portions. The direct appeal record substantiates c o-counsel’s recollecti on.

Post-conviction counsel inferentially asserts

that the petitioner’s tri al attorneys were ineffectiv e per se by their failure to hav e portions of the trial trans cribed. However, in Bransfo rd v. Brown , 806 F.2d 83, 86-87 (6th Cir. 1986), the Sixth Circuit Court of Appeals concluded that although the jury instr uctions portion of the transcr ipt was not prepared and althoug h the missing portions w ere irretrievably

lost, the petitioner should be denied re lief because he failed to present the court with anything upon which it could base a finding of prejudice. As in Bransford , the petitioner in the present case has failed to show that he was prejudiced by the omission of the se portions of the transcript.21 The petitioner next asserts that trial counsel w

as ineffective in failing to investigate adequatel

y all possible defenses so as to enable him to make an informed and reasonable decision as to a theory of defense. The petitioner c ontends that trial counsel was on notice of the nee d to investigate the peti tioner’s mental state but did not do so. He contends that this fail ure rendered his counsel unabl e to make informed decisions or adequately and effectively represent the petitioner.

At the post-conviction h earing, the petitioner’s lead attorney testified that he retained the services of Dr. Dennis Spjut, a psy chologist, to examine the petitioner prior to trial. He ac

knowledged receiv

ing a letter from Dr. Spj ut in which the doctor indicated that the petitioner functioned in the borderline ra nge of intelligence and that the attorney

might expl ore the possi bility of a lcohol or dr ug abuse res ulting in symptoms similar to brain damage. He admitted that he did not have a neurologist or neuropsychologist ex

amine the petitioner but stated th at he obtained the services of another psychologist from the office of Dr. Brietstein to ex amine the petitioner the day before trial in order to prepare for sentencing. The attorne y repeatedly stated that his theory of defense was that the petitioner did not comm it the crime and that his primary focus had been on the guilt phase of the trial due to the lack of physical evidence connecting the petitioner t o the crime.
In assessing the effectiveness of counsel, we are guided by the principle that this court’s respons ibility is not to s econd guess strategic and tactical choices of counsel. In fact, we will defer to counsel’s tactical choice if the choice was reasonable when viewed from couns el’s perspective at the time the choice was made and if it was based upon adequate preparation. Strickland v. Washington , 466 U.S. at 689, 104 S. Ct. at 2065; Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982); United States v. Decost er , 487 F.2d 1197, 1201 (D.C. Cir. 1973).22 In this case, the petitioner denied committing the crime,and counsel presented evidence that he had been wrongly identi fied as the perpetrator. The petitioner’s trial cou nsel was aware of the pet itioner’s mental problems but chose not to pursue that evidence in the guilt phase of the trial. A defense of diminished capacity based upon the petitioner’s borderline intelligence and alcoho l and drug abuse could ha ve co mp ro mi se d h is

pr im ar y d ef en se

th at he di d n ot co mm it th e offe ns e. We conclude that counsel was not ineffective for failing to presen t this defense in the guilt phase of the trial.

The petitioner next asserts that because substantial exculpatory information was either w ithheld by the prosecutio n or was not investi gated and used by counsel in the petitioner’s defense, the confidence in the outcome of the tr ial was undermined in violation of the Sixth, Eighth, and Four teenth Amendments to the United States Constitution. The petiti oner initially arg ues that he was not giv en the statements of April Ward, the state’s chief witness , until late in the afternoon before the morning she was to testify. H owever, this iss ue was addressed on direc t appeal, and a majority of the Tennessee Supreme Court conclud ed that "defense counsel, and his def ense team, were given a r

easonable opportunity to ex amine and prepare to use the statements in cross-exa mining April Ward." Caughron , 855 S.W.2d at 535. Accordingly, this

issue has been previousl y determined. T.C.A. § 40-30- 112(a) (repealed 1995).

The petitioner also argues that either the state withheld the statements of Michael Farreget and Vicky Worth or that if his attorney knew of Mr. Farreget’s or Ms. Worth’s statements, he was ineffective for fail ing to call them as witnesses. The statement made by Mr. Farr eget was to Special Ag ent David Davenport o f the T.B.I. and related that he observed a dark-colored car sitting in front of the victim’s house around 7:00 or 7:30 p.m. on the day before her body was dis covered. Mr. Farr

eget4 The d irect appe al record reveals th at Ms. W orth was called as a witness f or the state

. She testif ied that

she had seen the pet iti oner between 10: 00 p.m. and 11:00 p. m. on the night of the murder and that he had be en drinking and smoking marijuana. On cross- examination, counsel for t he petiti oner questi oned her concerni ng the peti tioner’ s appearance on the day follo wing the murder, and Ms. W orth r esp ond ed th at sh e had not n otice d any c uts o r scr ape s on h im. 23 identified Robert Trudy’s car as the one he had observed. The stat ements allegedly made by Vicky Worth reflected a lack o f noticeable scratches on the peti tioner and the petitioner’s lack of transportation on the night of the m urder.

At the post-conviction hearing, the attorney testified that he did not recall having been shown the s tatement of Michael Farreget,but he later admitted that the copy of the statement must have c ome from his file because it came from the C apital Case Resource Center. H e testified that he did not know how the statement got into the file but that had he seen it, he would have called Mr. Farreget as a witness. He then admitted that the statement could h ave been in the information gi ven to him during trial. He testified that he did not recall the name of Vicky Worth but did remember that there were several

people employed near the vi ctim’s business who s aid they had seen the peti tioner th e mornin g followin g the killin g. The att orney stat ed that if he had kn own that someone had allegedly s een the petitioner around the ti me of the murder who would have testifie d that th e petitio ner was not driving a ca r at that t ime, he wo uld have called her as a witness.

To establish a violation under Brady v. Maryl and , 373 U.S. 83, 83 S. Ct. 1194 (1963), the petitioner must prove that the state suppre ssed evidence, that the evidence was favorabl e to the defense, and that the suppressed evidence was material

. See Strouth v. State , 755 S.W.2d 819, 828 (Tenn. Crim. App. 1986). In the present case, the petitioner has failed to prove that the state w ithheld this evidence. The evidence reflects that a copy of Mr. Farreget’s st

atement came from a file counsel sent to the Capital Case Resour ce Center. The record does not contain Ms. Worth’s alleged statement. 4 This court does not consider statements made by counsel dur ing a hearing24

as evidence. See State v. Dykes , 803 S.W.2d 250, 255 (Tenn. Crim. App. 1990). The petitioner has failed to prov e a due process violati on.
The petitioner claims in the alternative that the state failed to provide this exculpatory information in time for his attorney to adequately prepare a defense. However, this is

sue has been previously determined. In the majority opinion of the Tennessee Supreme Court, the court determined that the trial cour t did not abuse its discretion in denying

a continuance to allow th e petitioner time to inves tigate persons named as suspects in certain s tatements given to the defense by the state. Caughron , 855 S.W.2d at 535. The court concluded that the petiti oner had "failed to show the materiality and relev

ance of any evidence such an i nvestigation woul d yield." Id. at 534.

Also in the alternativ

e, the petitioner argues that his trial attorney was ineffective for failing to use the statement s of Mr. Farreget and Ms. Worth. However, when a petitioner contends that counsel failed to presen t witnesses in support of his defense, these witnesses should be presented by the petitio ner at the evidentiary hearing. By presenti ng them, the petitioner can es tablish that the failure to hav e a known witness testi

fy resulted in the denial of ev idence material to the petiti oner. See State v. Black , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). In thi s case, the petitioner did not present the testimony of Mr. Farreget or Ms. W orth. Under these circumstances, the trial court had insufficient evidence to de termine whether the failure to call the witnesses was deficient performance by his trial attorney or if such failure constituted material prejudi ce to the petitioner’s caus e. Ineffective assistance of counsel has not been shown.

II. DENIAL OF

EXPERT AND/O R INVESTIGATIVE SERVICES The petitioner claims that the t rial court abused its di scretion in denying his request for the exper t services of Mr. Ron ald Lax, an investig ator employed by25

Inquisitor’s, Inc., the services of an expert to examine the jury s

election process and the composition of the jury, the s ervices of Dr. Chri s Sperry, a pathologi st with the Fulton County Medical Exami ner’s Office and the servic es of Dr. Murray Smith, Medical Director for Baptist Dr

ug and Alcohol Center. The pet itioner contends that the ser vices of Mr. Lax were needed to trace former cellmates who testified for the state at trial concerning alleged statements of the petitioner. He submits th at the services of jury experts were needed to i nvestigate the sys tematic exclusion and/or underrepresentation of women from the Se vier County Circuit Court venires. He asserts that the expert s ervices of Dr. Sperry

were needed to review and rebut the testimony of the state’s medical witness at trial, Dr. Cleland Blake, as to the nature and timing of the victim’s death. Last, he contends that the ser vices of Dr. Murray

Smith, Medical Director of Bapti st Hospital Drug and Alcohol Center, were needed in order for him to show the effects of alcohol on the mental state of a person with a marginal I.Q.

The tria l court

initia lly gr

anted fun ds for th e exper t services of a neuropsychologist and for the services of a paralegal to investigate and collect information regarding the question of underrepresentation of women in the Sevier County jury pool. The trial court issued a second order, renewing its grant of funds for the expert services

of a neurologist but denyi ng all other requests , concluding that the petitioner’s documentation did not support a particulari zed need for the services . A third order was iss ued granting the petition er funds to secure the serv ices of a legal expert. Finally,a fourth order was issue d granting the petitioner funds to secure the services of a mitigati on specialist, Anne Mari e Charvat, but concluding that a particularized need had no t been shown to warrant funds for investigativ e services to conduct juror intervi ews and to discover the outcomes of the trials of state i nmate witnesses who testi

fied against the petitioner. The trial court also denied the services of a demographer and a statistic ian for the same reason.26 In Owens v. State , 908 S.W.2d 923, 928 (Tenn. 1995), the Tennessee Supreme Court held that T.C.A. § 4 0-14-207(b) applies to post -conviction cases and that petitioners can receive state paid professional services. However, the court cautioned that its applicati on of T.C.A. § 40-14-207(b) to post- conviction capital cas

es "should not be interpreted as a ‘blank check’ requiring trial judges to authorize funds in every case." Id. In order to receive s tate funding for expert serv ices, the petitioner must demonstrate that the "serv ices are necessary to ensure the protection of the petitioner’s constituti onal rights." Id. As the court explained, "a petitioner must demonstrate by specific factual proof that the services of an ex pert or an investiga

tor are necessary to establish a ground for post-conviction relief and that the pet itioner is unable to establish that ground for post-conviction relief by any other available evidence." Id.

The discretion to grant a r equest for expert serv

ices rests with the trial court, and its decision w ill not be reversed on appeal unless there is a show ing of an abuse of that discretion. State v. Cazes , 875 S.W.2d 253, 261 (Tenn. 1994). Upon a review of the record, we conclude that the trial court did not abuse its discretion in denying funding for the ser vices in question.
In his motions requesting an investigator, the petitioner failed to specify by factual proof that such servic es were necessary to establish a ground for post
conviction relief and that he was unable to establish such ground by other reasonable means. At the hearing on the moti on requesting an exper t to investigate jur

y selection and jury composition and a s tatistician to revi ew the findings, the petit ioner’s present attorney admitted that he had acq uired much of the needed information concer ning the jury selection but cl aimed that he needed a statistici an to interpret the information. The trial court determined that a statistician was not needed because th e court could make a determination on the proof befo re it whether the percentage of women in the venire27

was statistically

disproportionate. Further more, because the petitioner w as granted a new sentencing hearing , the trial court’s deni al of funds for medical experts i s now moot. Moreover, Dr. Smith’s testimony would have been cumulative in light of Dr. Auble’s testimony that intoxicants would have decreased the petitioner’s impulse control. We conclude that the trial cour t acted within its di scretion in denying the requested services.

III. UNDERREPRESENT ATION OF WOMEN

ON SEVIER COUNTY JU RIES The petitioner asserts that he set forth a prima f acie case that there was a systematic underrepres entation of women on the jury venire of his specific cas e and on the venire of juries for the preceding two ye ars in Sevier County . He points to the fact that his jury panel w as only thirty per

cent women, although wo men in Sevier County comprised about fifty percent of the adult population.

First, we note that the record reveals that the trial court failed to stat e findings of fact and conclusions of la w regarding this

issue as required by

T.C.A. § 40- 30-118(b). However, even if a trial court fails to comply with this duty, a revers al is not warranted if the record r eflects the reasons for the trial court’s actions. State v. Swanson , 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984). In Swanson , this court stated that the primary intent of the statute was "to facilitate appellate review of the l ower court’s proceedings . . . ." Id. If the record contains the reasons for the trial court’s action sufficient to effectuate meaningful appel late review, then w e may consider the issues even though there has not been full compliance wi th T.C.A. § 40-30-118(b). Such a record exists i n this case.

In Taylor v. Louisiana , 419 U.S. 522, 95 S. Ct. 692 (1975), the United States Supreme Court held that women could not be systematica lly excluded from jury service. The Court deter mined that Louisiana’s constitutional and statutory pr ovisions28

exempting women from jury service unless they

had previously filed a written declaration of their desire to be subject to such service were unconstitutional becau se they violated the fair c ross-section requir ements of the Sixth and Fourteenth Amendments. Taylor , 419 U.S. at 537-38, 95 S. Ct. at 701-02. In Duren v. Missouri , 439 U.S. 357, 99 S. Ct. 664 (1979) , holding unconstitutional a Missouri statute that excluded women from jury duty if they requested

exemption, the Court reaffirmed i ts holding in Taylor . It stated as follows:

In order to establish a pri ma facie violation o f the fair-crosssecti on requirement, the defendant must show (1) that the group alleged to be excluded is a “disti nctive” group in the commun ity; (2) that

the representation of this gr oup in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in thecommunity; and (3) that this underrepresentation is due to systematic excl usion of the group in the jury selection process. Duren , 439 U.S. at 364, 99 S. Ct. at 66 8.
In the present case, we con clude that the petitioner has n ot met the final two requirements. At the post-conviction hear ing, Bonnie Loveday, an employee of the Sevier County Election Commission, was show n copies of sheriff’s venires from November 1988 until Nov ember 1989. Ms. Loveday de termined that the venires contained three hundred and fifty-fiv e males and one hundred and fifty-tw o females on the computer list. How ever, Ms. Loveday

could only speculate as to the gender of approximately one hundred and forty persons who had been on the list but could not be found in the computer records. Al though the petitioner asser ts that the venires for the two years up to and including the one for his trial were only thirty percent female whereas adult women in Sevier County compri sed about fifty percent of the total population, the computer records do n ot support th is claim.

More importantly, the petitioner has failed to establi sh that any underrepresentation was due to the systematic exclusion of the group in the jury selection process. At the hearing, Helen Loveday , former clerk of the Sevier County29

Circuit Court and secretary of the Sevier County Jury Commission, testified that at each court term, the judge of the Circuit Court would order names to be drawn from the jury pool. The jury pool came from a s ecured box containing app roximately two thousand names, and these names came from a pro rata apportionment of persons from the seventeen voting dis

tricts in the county. She stated that she did not know exactly how jurors’ names were s

elected for the box but that she had no knowledge that any person was systematically excluded from either the jury pool or jury venire based upon gender.

Alfred Newman, a jury commissioner from Sevier C ounty and commissioner at the time of the petitioner’s trial, testi fied that names for the jury pool were selected from a print out of voters in each distr ict. He stated that ten perc ent of the names of voters in each distr ict would be chosen, ty ped, and put in the secured box

. He testified that the commission would try to choose a n equal percentage of men and women. Before each term of court, the commission would remov e the number of names required and place them on the jury commission repo rt which was lat er copied as the sheriff’s venire. H e stated that the selection w as conducted blindly and tha t he did not know of anyone w ho systematically s

ought to exclude women fro m sitting on a jury. Fr om these facts,we conclu de that the pet itioner has failed to est

ablish a pri ma facie case of systematic ex clusion.
In consideration of the foregoing and the records of the petitioner’s original trial, di rect appeal and post-convi ction proceeding, we conclude that the trial court’s determinations in this case are correct. The judgment is affirmed.

_____________________________ Joseph M. Tipton, Judge CONCUR:

___________________________30

Gary R. Wade, Presiding Judge

___________________________ David H. Welles, Judge