# FILED
August 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE TENNESSEE COURT OF CRIMINAL APPEA LS AT JA CKSON JUNE SESSION, 1999 ERSKINE LEROY JOHNSON, ) C.C.A. NO. 02C 01-9707-CR-00292 ) Appellant, ) SHELBY COUNTY ) VS. ) ) HON. WILLIAM

H. WILLIAMS, JUDGE STATE OF TENN ESSEE, ) ) Appellee, ) (Post-Co nviction, Death Pen alty) )

FOR THE APPELLANT : FOR THE APPEL LEE : JON ATHAN I . BL ACKMAN JOHN KNOX WALKUP DAVID E. BRODSKY Attorney General and Repor ter CLEARY, GOT

TLIEB, STEEN & HA

MILTON One Libe rty Plaza AMY L. TA RKINGTON New York, NY 10

006 Assistant Attorney Gener al 425 5th Avenue North JOSEPH S. OZMENT Nashville, TN 37243-0493 217 Exchange Avenue Memphis, TN 38105 WILLIAM L. GIBBONS District Attorney General JOHN W. CAMPBELL Assistant

District Attorney General LORRAINE CR

AIG Assistant

District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103-1947

OPINION FILED __________________________ AFFIRMED IN PART; REMA NDED FOR RESENTENCING JOE G. RILEY, JUDGE-2- O P I N I O N

In this capital case, Defendant, Erskine Leroy Johnson, appeals as of right from the judgmentof the Criminal Court ofShelby County denyi ng his post-conviction relief petition. In 1985, he was convicted of one co unt of felony murder and sentenced to dea th by electrocution. His conviction and s entence were affirmed on direct appeal by the Supreme Court. See State v. Johnson , 762 S.W.2d 110 (Tenn. 1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 862 (1989). O n appeal, Defendant raises the follow ing issues: 1. whether

the State failed to disclose excu lpatory evidence relating to gui lt and s entenci ng in v iolati on of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); 2. whether

the trial court erred in finding that the issue of w hether the State had unconstitution ally discriminated in the exercise of its peremptory challenges had been previously determined;
3. whether

the trial court erred in denying Defendant’s request for leave to take discovery and present evidence rega rding the peremptory challenge i ssue; 4. whether

Defendant was denied the eff ective assistance of counsel at the guilt and penal ty phases of his trial; 5. whether

Defendant i s en titled to be resentenced based on a Middlebrooks error; 6. whether the trial cour t properly instruct

ed the jury; 7. whether the death penalty statutes are unconstitutional ; and 8. whether

the cumu lative

effect of a ll errors at the trial and sentencing hearing violated due process. After reviewing the record, we conclude the state improperly withheld material, exculpatory evidence relating to the penalty pha se of th e trial. The state argued t o the jury that Defen dant fi red the shot that grazed an innocent bystander, there by leading to the application of the aggravating circumstance of creating a great ri sk of death to others. A crimescene report, improperly withheld from the defense and the jury, revealed arguably contraryinformation. This error, combi ned with the undisputed and erroneous application of the felony murder

aggravator, necess itates a REMAND for a new sentencing hea ring. In all other respects, the judgment of the trial court is AFFIRMED

.-3- Background

The p roo f, as set forth in the supreme court ’s decision, Johnson , 762 S.W.2d at 115-16, established that between 8:30 and 9:00 a.m., on October 2, 1983, Joe Belenchia, owner of a Food Rite grocery store in Memphis, was killed in the course of an attempted armed robbery. Tommy Perkins, an eyewitness to the ro bbery, m ade an in-court identification of Defendant as the person who killed Mr. Bel enchia. He had also made a pre-t ri al identification of Defendant from a photo di splay. He further identified Jerome Moreland, a friend of Defendant, who was also involved. M r. Perkins was not one hundred percentsure of his identification at t rial and ? pretty sure”

of his pre-trial identific ation. He had also seen a

burgundy-colored st

ation wagon in the stor

e parking lot

on the day of the robberywith two people in the front and two in the back. One of the passenger s in the rear seat was a female. This ve hicle was subsequentl y linked to the crime.

Earlier on the morning of the robbery, Harold Quarles, a young boy, saw a man switchinglicense plates from a car parked in the stree t to a maroon station wagon.Three people were in the station w agon, and the man switching the l icense plate was seen talking to a woman in a white car. The number on the license plate w as the same as the number
on the vehicle used in the r obbery. A palm print taken from this vehicle was subsequently identified as Defendant's.

Defendant was wearing an orange or rust-colored suede or leather jacket, which
was identified by at least tw o witnesses to the robber y. A noth er witness in the grocery store at the time of

the robbery testified

that a woman accompanied by a man attempted to enter the store office. She was pre vented from doing so by the security guard who in turn was restrained by

the man, who put a gun to his head. At that

time, the witness heard the sound of three shots coming from the front of the store.

During the police investig ation, the maroon station w ag on was traced to the St.-4-

Louis Airport. Defendant’s cousi n, Elizabeth Starks, testified that Defendant and another
man named “Jerome” came to her home the night befo re the homicide. They were travelingin a maroon station wag on. The next morning, Defendant, J erome, and another man came to her

residence. Her boyfri end, Dennis Williams, went with the three men to the store for cake mix about 7:00 a.m. When Mr. Williams returned, he waspale and acted exhausted and upset. Subsequently, Defendant, Jerome, and a third man retu rned to her house. A woman in a white car also came there.
Beverly Batts, Defend ant’s former girlfrie nd, testified

that sever

al mo nth s later, Defendant told her he and two friends had stolen a car from the St. Louis Airport. He admitted he had committed a robbery and murde r in Memphis.

Defendant offered an alibi defense through a number of witnesses who testified that
on the night of October 1, 1983, and the morning of October 2, 1983, he was in St. Louis at a birthday party for h is mother. Defendant testified that he attended the birthday party and on the following morning took his children to his mother's house in order to at t en d church. He denied knowi ng Ms. Starks and said that Ms. Batts told him she w ould keep him in jail because he refused t o pay her bail in Cali

fornia.

Post-Convictio n Standard of Rev iew

In this post-conviction proceeding, the burden was on Defendant to prove the allegations

contained in his petition by a pr eponderance of the evidence. State v. Kerley , 820 S. W.2d 753, 75 5 (Tenn. Crim. App. 1991); Oliphant v. State , 806 S.W.2d 215, 218 (Tenn. Crim. Ap p. 1991). Findin gs of fact and conclusions of law made by the trial court
are given the weight of a jury verdict, and this Court is bound by those findings unles s the evidence containe d in the record preponderates other wise. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). This Court may not reweigh or r ee valuate the evidence or substitute its infer ences fo r those dr awn by the tri al court. Questions concer ning the credibility

of witnesses and weight and value to be given their testimony are for resolution-5-

by the trial court. Black v. State , 794 S.W.2d 752, 75 5 (Tenn. Crim. App. 1990).

I. ALLEGED BRADY

VIOLATIONS

Defendant c ontends t hat the S tate withheld e

videnc e in vi olation

of Brady v. Maryland , 373 U.S. 8 3, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed. 2d 215 (1963). The Defendant made a pre-trial request for exculpator y evidence, and the

State responded that it had no exc ulpatory e vidence. He conten ds this with held evide nce would h ave shown that another “group” committed these of fens es; this could have str engthened his alibi defense; and it cou ld have been used to impeach Beverly Batts, who testified for the S tate that Defendant had confessed to the murder. H e asserts that the exculp ato ry eviden ce withheld was extensive and interlocking, and that there is a reasonable probability that if the jury had heard this exculpatory evidence, it would have had a reasonable doubt about whether Defendant was the per son who shot the victi m.

A. Brady v. Maryland

In Brady v. Maryl and , the United States Supre me Court held that any ? suppression bythe prosecution of evidence fav orable to an accusedupon request violates due process where the evidence is material either to guilt or to punishment, i rrespective of the good faith
or bad faith of the prosecution.” 373 U .S. at 87, 83 S.Ct. at 1196-97. The duty to disclose extends to all ?

favorable information” regardless of whether the evidence is admissible at trial. State v. Marshall , 845 S.W.2d 228, 232-33 (Tenn. Crim. App. 1992); Branch v. State , 469 S.W.2d 533, 536 (Tenn. Crim. App. 1969). In United States v. Bagle y , 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (198 5), the Supreme Court held that bot h exculpatory and impeachment evidence fall under the Brady rule.

Before an accused is entitled to relief under this theory, he must establ ish several prerequisites: (a) the prosecution must have su pp ressed the evidence; (b) the evidence
s uppressed must have been favorable to the accused; and (c) the evidence mu st hav e-6-

been material. See Bagley , 473 U.S. at 674-7 5, 105 S.Ct. at 3379-80; Brady , 373 U.S. at 87, 83 S.Ct. at 1196-97; State v. Edgin , 902 S.W.2d 387, 390 (Tenn. 1995); Workman
v. State , 868 S.W.2d 705, 709 (Tenn. Crim. App. 1993); Strouth v. State , 755 S.W.2d 819, 828 (Tenn. Crim. App. 1986). Ev idence is con sid ered material only if there is a “reasonable probability” that, had the evidence been disclosed to the defense, the results of the proceeding would hav e been different. Bagley , 473 U.S. at 682, 105 S.Ct. at 3383.

In orde r to prove a Brady violation, a Defendant must sh ow that ? the favorable evi dence coul d reasonably be taken to put the whole case in such a di fferent light as to undermine confidence in the verdict. ” Kyles v. Whitley , 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995); see also Strickler v. Green e , ___ U.S. ___, ___, 119 S.Ct. 1936, 1952 (1999); Edgin , 902 S.W.2d at 390. The Court in Kylesurged that the cumulat ive effect of the suppressed evidence be c onsidered to determine material ity. 514 U.S. at 436, 115 S.Ct. at 1567.

The State is no t require d to disclose information that the accused already possesses, is able toobtain, or information whi ch is not possessed by or under the control of the prosecution or another governmental agency. State v. Marshall , 845 S.W.2d at 233. Under Brady , the individual prosecutor has a duty to learn of any favorabl e evidenc e known to others acting on the g overnment’s behalf in the case,including the police. Kyles , 514 U.S. at 437, 115 S.Ct. at 1567.

B. Evidence Pointing Toward a Different Group of Suspects

LieutenantCharles Shettleswor th of the She lby County Metropol itan Police was assigned to investigate the murder. He testified that Mr s. Johnnie L. Wilborn, a customer in the grocery st ore during the robbery, w as interviewed and s hown twenty-four photographs, including a photograph of Defendant. All the photographs us ed in the line-up were real suspects in the case. Mrs. Wi lborn pic ked out a photogra ph of Mich ael Brown
as looking like the gunman;however, she was unable to make a positive identifica tion at-7-

the time she was interviewed by the police, stating that she had blocked the gunman’s face out of her mind. Because she could not make a po sitive identification, the police did not have her sign the back of the photograph of Michael Brown. Mrs. Wilborn was also unable to make an iden tification at the post-convict ion hearing.

Harold Quarles, who testified at trial, had also been shown a photographic line-up bythe police. He had identified Michael Br own and Charles

Keller, who were

cousins, as looking like the two individuals he saw changing the license pl ate on the getaway vehicle before the shooting occurred. He was also unable to make positive identifications; therefore, the police did not have him sign the back of the ph otographs.

Finall y, evidence showing that the getaway car was connected to Eric B row n , Michael Brown’s brother, w as not providedto the d efense. Miles McKinney was interviewedby the pol ice and id entifie d the geta way vehicle a s being use d by Darvi Cunningham,a prostituteworkingfor Eric Brown, months befor e the shooting. There was also evidence that Eric Brown, Michael Brow n, and Charles Keller w ere involvedin a car theft ring which stole rental cars from the St. Louis Airport. T heir involvement w ith the getaway car was corroborate

d by the fact that the vehicle had b een driven over 10,000 miles within the thre e months it had been stolen. It was also corroborated by pr oof showing that the vehicle had been dr iven to Chicago, which was consis tent with proof

that EricBrown and Darvi C unningham trav eled to various truck stops for purposes of prostitution. No fingerprints belonging to Eric Brown or Michael Brown were found on the
car.

It is undisputed that the defense req uested all exculpatory eviden ce and that the State responded that it had none in its posse ssion. Or iginally, the Defendant w as repre sented by t he public defender’s office. Thereafter, R obert Paskal and J. Michael Benson of the Missouri Bar w ere retained to represent Defendant at trial. The files of the public defender’s office indicate that they had interviewed Mr

s. Wilborn an d Harold Quarles, but the summaries of these interviews do

not reflect that either

indicated they had-8-

picked out photographs of Mic hael Brown. The

summaries only show that neither made positive identifications. Mr. Bens on testified at

the post-conviction

hearing that Defendant had asked defense counsel to contact Er ic Brown. Mr. Bens

on spoke with Eric Br

own and found out that the police had questi oned him regarding this shooting; how

ever, it was decided that his testimony would not be helpful. There is no indication that defense counsel had knowledge of Er ic Brown’s possibl e connection to the getaway vehicle.

The State possessed information regarding Mich a el Brown, Charles Keller, Eric B rown, and thei r possible connect ion to the shooting and to th e getaway v ehicle

. Moreover, while thedefense’s request for exculpatory evidence did not specifically request such information, the State responded that it had no excu lpatory evidence in its possession. Thus, the only questions remaining are whether th is evidenc e is exculp atory, and if it is exculpatory, whether the information is material.

In denying relief, the

post-conviction court concluded that the “identification” proof
was not favorable to Defenda nt. Altho ugh Mrs. W ilborn was unable t o make a p ositive identification of Michael Brown as the shooter, she did pick his photograph o ut of a photographic line-up, which incl uded a photograph of Defendant. Obviou sly, this information would have been favorabl e to Defendant. Harold Quarles was unable to make positive identif icatio ns of M ichael Brow n or Charles Keller as the men he saw with the getaway vehicle on the morning of the shooting; however,he picked their photographs out of a photographic line- up whic h included a photograph of Defendant. Again, this information was favorable t o Defendant.

This conclusion is solidified by the State’s presentation at trialof Tommy Perkins,
an eyewitness to the

shooting. Mr. Perki ns picked out a photograph of Defendant w hen shown a photo gra phic line -up by the p olice, bu t he too was unable t o make a p ositive identification. Moreover, he was unable to make a positive i n- court identification of Defendant. Regardless, the State chose to present his testimony at trial. Accordingly, if Mr. Perkins’s less than pos itive identification w as favorable proof of Defendant’s guilt, then1 Defendant also points to a third grou p of in dividu als w ho co uld have been impli cated in t he shooting; however, the proof at the post-conviction hearing was too m inimal and insuffi cient to raise a quest ion of ma teriality. -9- less than positive identifications made by Mrs. Wilburn and Mr. Q uarles of differ en t suspects were favorable to Defendant’ s defense. The additional information regarding a potential connection between Eric Brown, Michael Brow n, and C h arles Keller with the getaway vehicle would als

o have been favor

able to Def endant in conjunction with the identifications made by Mrs. Wilburn an d Mr. Quarles.
Nevertheless, while t h is information was clear ly exculpatory,it does not meet the Brady materiality standard. In order to prove a Brady violation, Defendant

must show that “the favorable evidence could reasonably be takento put the whole case in such a different light as to undermine confidence in the verdict.” Kyles , 514 U.S. at 419, 115 S.Ct. at 1558; see also Strickler , ___ U.S. at ___, 119 S.Ct. at 1952

. Having reviewed the proof pres ented at trial and at the post-con viction hearing, we find that confidence in the guilty verdict has not been undermi ned by the State’s failure to disclose this exculpatory evid ence. T he circumstantial proof linking Defendant to this shooting is strong. In additio n to Mr. Perkins’s identification of Defendant as the sho oter, Defendant’s palm prin t was foun d on the ge tawa y car. Mor eover, despite Defendant’s claim that he was in St. Louis at the time of the shooting, his cousin, Eliz abeth St arks, identified him as being in Memphis on the day ofthe shooting and identified him as being in the getaway car. She further testified that she and a fri end had been in that car prior to the robbery. Her testi mony was corroborated by the presence of their fingerpr ints in the car. Furthermore, Beverly Batts testified that Defendant conf essed to a “cold-blooded” shooting in Memphis. 1

In addition, the eyewitn ess descriptions of the assai lant were similar. Pe rkin s described the assailant as 5'11", 145-50 pounds. The wife of the victim described hi m as 5'10-11" with a slim build. Wilburn described him as about 5'6", medium height. The postconviction court noted-10- [Defendant] was 68 inches in height and 135 pounds. Michael Brown’s ... height was 78 inches and [he weighed] 175 pounds. Clearly, the differential in height of the two eli minated Michael Brown as any possib le suspect in the case . .. The record is clear

that Mich ael Brown was not the shooter in this robbery/killing.
It is apparent that the descri ptions given by the eyew itnesses would have been different if the assailant had been 6'6" (78 i nches) tall, the height o f Michael Brown.

The e vidence does not preponderate against the findings of the post-convi ction
c our t. The identification by Perkins, the corroborated testimony of St arks, Defendant’s admission to Batts and Defendant’s palm print on the getaway car have not b ee n overc ome. The f ailure of the state to reveal the less than positive photographic identifications

of Brown does not undermine confidence in the outcome of the procee ding. Nor d oes the failure to reveal the Browns’ and Keller’ s connection to the car undermi ne confidence in the verdict.

C. Elizabeth Stark’s Statement

Defendant next contends that the State w ithheld Elizabeth Stark

s’s initial statement to the poli ce in which she indica ted that she did not reco

gnize Defendant as one o

f th e men who came to her home on October 1, 1983. Although the recor d is unclear as to exactly what defense counsel did rec eive prior to

the cross-examination of Starks, defense counsel cross-examined her concerning the inconsistencies between the two statements. Starks conceded the statements were i nconsisten t. Defendant has failed to establis h a reasonable probability of a differen t result even if defense counsel ha d received further details of the first statement.

D. Palm Print Reports

Defendant also contends that the State w ith held information regarding hi s palm print-11-

taken from the getaway vehicle. Specificall

y, the State did not prov ide Defendant with a report showing that Defendant’s fingerprints did not match any of the fingerprints

removed from the vehicle or wi

th a report listing th e places from which the pri nt s were lifted, on which the palm print w

as not listed.

In Kyles v. Whitley , 514 U.S. 419, 115S.Ct. 1555, 131 L.Ed. 2d490 (1995), one of the complaints made by the defense w as that the State failed to provide him w ith a list of
cars parked at a grocery store. It had been argued to the jury that the kill er drove to the grocery store parking lot and l eft his car there during the heat of the investigation; however, Defendant’s car was not on the list. The State arg ued th at the evidence was neither impeachmentnor exculp atory evi dence because Defendant could have mov ed his car before the list w

as created, and the list

did not purport to be comp rehensive . The Supreme Court rejected this argument, s tating that it “confuses the weight of the ev iden ce with its favorable tendency, and even if accepted would work against theState, not for it.” Id. at 451, 115 S.Ct. at

1574. The Court noted that whi le the suppression of this evidence did not rank with the failure t o disclose other eviden ce in the cas e, it woul d have had so me value as exculpation and impeachment,and it counted accordingl y in determining w

hether Bagley ’s standard of materiality was satisfied. Id

. at 450, 115 S.Ct. at 1573.

Accordin gly, the police reports in the present case were also exculpatory. Based
on Kyles , the failure to provide the defense with these police reports must be considered in determining the cumulativ e effect of the State’s failure to provide exculpator y evidence. However, the State’s failure to p rovide the defense with these police r eports does not undermine the confidence in the jur y’s verdict.

E. Evidence to Impeach Beverly Batts

Defendant submits that theState withheld information that Beverly Batts had been-12-

promised expunge ment of her California record in exchange for her testimony against Defendant in Tennessee. This claim i s without merit.

In Giglio v. United

States , 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L. Ed.2d 104 (197 2), the Supreme Court held that impeac hment evidence falls under the Brad yrule

. See also State v.Davis , 823 S.W.2d 217, 218 (Tenn. Crim. App. 1991). Moreover, under State v. Marshall , 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992), the State is required to provideinfor mation wh ich is possessed by or under the control of the prosecution or another governmental agen cy. Id

.
Ms. Batts’s statement, whi ch wa s taken in connection with these post-convictio n proceedings, was presented as proof that she had been offered a deal. She stated that at the time of the trial, she thought that Ca lifornia wa s going to expunge her record in exchange for her testimony in Tennessee;however, her recor d was never expung ed. In any event, no authorities

from California testified nor were documents offered as proof of
a deal made with Ms. Batts. In a ddition, there is no proof that the authorities in Tennessee
were aware of an alleged deal made by th e author ities in Ca lifornia . Accordin gly, because the record doesnot support a finding that this information was in the possession or under the control of the State, it w as not subject to the Brady rule.

F. Cumulative Ef

fect on the Verdict o

f Guilt

While the Court finds that the State withheld exculpatory evidence regarding other potential sus pects, t he cumulative effect of the inform ation withheld does not require reversal of the jury

verdict because, taken as a whole, the suppressed i nformation is not material. Defendant has failed to show tha t disclosure of the suppressed evidence to counsel would have made a different result reasonably probable. Aspreviously stated,the key proof implicatingDefendant in this shooting i ncluded Defendant’s palm print found on the getaway vehicle; Ms. Starks’s testimony placing Defendant in Memphis on the day of the shooting and connecting hi m to the getaway vehi cle, contrary to Defendant’ s testimony-13-

that he had been in St. Louis; and the one eyewitness who t estified that Defendant looked like the person who shot the victim. Defendant also fit the physical descri ption given by the witnesses

at the grocery stor

e. Furthermore, Defendant confessed to Ms. Ba tts th at he had shot and killed a man in Memphis. Accordingly, we find that the withheld exculpatory evidence was not materi al, and reversal of the jur y verdict is not required.

G. Great Risk A

ggravating Circu mstance
Regarding the sentencing hearing, Defendant contends that th e State withheld exculpatoryevidence relevant to the application of the ? great-risk” a ggravating circumstance. The juryfound that “[t]he Defendant knowingly cr

eated a great risk of death to two or more persons, othe r than the v i ctim murdered, during his act of murder.” See Tenn. Code Ann. § 39-2-203(i)( 3)(1982).

Defendant contends that the State withheld a police report showing that the bull et which grazed a young w oman near a ?

PacMan” machine in the grocery store was not fired from the checkout area, and that the State withheld the fact that the victim had a loaded gun in his pocket. Specifically, he contends the crime sc ene rep ort would h ave contradicted the prosecution’s theory for establishingthe great risk of death aggravating circumstance, and the fact that the victim w as ar med woul d have contradicted the prosecution’s argument that the victim was defenseless.

At the post-conviction heari ng, a crime scene report wa s introduced into evidenc e. The report indicated that the sho t fired through the PacMan machine, grazing th e young woman nearby , was fi red from the area of the gr

ocery s tore’s fr ont doors and not the checkoutarea. Furthermore, the photog raphs showed solid obstr uctions between the checkoutarea, where Defendant was during the shooting, and the PacMan machine. This is contraryto the Sta te’s trial theory. In fact, Sergeant Frank J. Wheeler of the Memphis Police Department testified at trial that th ere were no solid obstr uctions between the checkout area and the PacMan machi ne. At the sentencing heari ng, the prosecution-14-

argued that the shot grazing the young woman suppo rted application of the ? great-risk” aggravating ci rcumstance.

Robert A. Poole, with the Dallas County Cr ime Lab, testified at

the post-conviction hearing. After reviewing the police reports, th e crime scene photographs, witnesses’ statements given to the police, and the transcripts of evidence, it was Mr. Poole’s expert opinion that it was more like ly than not that the person w ho shot the victim was not the person who fired the shot through the PacMan mach ine at the back of the store. The PacMan machine was not visible from the

area of the checkout; therefore, w here the bullet entered a nd e xited the video machine w as not visible or acc

essible to the person firing shots in the check

out area. The withheld crimescene report stated that the bullet “struck and pen etrat ed the cabinet side [of the PacMan mac hine] at at [sic] an angle of 15.5 [degrees] from the front doors of thestore and one bullet was fired from some point along this line.” Mr. Poole testified that he could say with reasonable scientific certainty that the gunman who shot the victim did not fire the bullet that hit t he vi deo machine and grazed a customer.
H. Vicarious Liability Under the Great Risk Aggravator

The state contendsit is irrelevant whether the Defendant or an accomplice fired the shot th at grazed th e innocent bystander. The state argues that any defenda nt who is a willingand active participant in a robbery is account able for all consequences flow ing from that robbery, including

the application of the aggr avating circumstance of creating a great risk of death to two (2) or more persons. We disagree.

The requirement that the prosecution disclose exculpatory evidence applies not only to guilt but also to punishment , irrespective of the good faith or

bad faith of the prosecution. Brady , 373 U.S. at 87, 83 S.Ct. at 1196-97. Furthermor e, the prosecution is responsible forthe disclosure of exculpat ory evidence even i

f it is only in the pol ice files. Kyles , 514 U.S. at 438, 115 S.Ct. at 1568.2 The current great risk aggravator is identical except for its reference to “ the act of murder” rather than “his act of murder.” See Tenn. Code Ann. § 39-13-204(i)(3)(1997). -15- We are unable toagree with the state’ s contention that it was irrelevant to the jury’s determination whether it was the Defendant or an accomplice that fired the shot that placed the bystander in danger. The state’s reliance upon Middlebrooks is misplaced. Certainly,
a defendant who is a willing and active participant in a robbery is account able for the consequencesflowing from the robbery and may be convicted of felony first degree murder where a co-perp etrator is the actual killer. State v. Middlebrooks , 840 S.W.2d 317, 336 (Tenn. 1992). However, Middlebrooks does not hold that this theory of liability also appli es to all aggravatin g circumstances.
The felony murder aggrav ating circumstance in effect at the time o f this homicide specifically included “an accomplice in the commission of ... robbery.” Tenn. Code A nn. § 39-2-203(i)(7)(1982) . The great risk agg ravating circumstan ce, on the other hand, required that “[t] he defen dant knowingly created a great risk of death to two or more persons, other than the victim murdered, during his act of murder.” Tenn. Code Ann. § 39- 2-203(i)(3)(1982). 2

In 1982, the United States Su preme Court addressed the issue of vic arious liability in a felony murder in Enmund v. Florida , 45 8 U.S. 782 , 797, 102 S.Ct. 3368, 3377, 73 L.Ed.2d 1140 (1982). The Court’s hol ding prohibited the insti tution of the death penalty on
a non-triggerman based solely upon his participation in the underlying felony. Justice White, the author of the majority opini on, wrote, “the impositi on of the death penalty on one such as Enmund who . . . does not himself kill, attempt to kill, or intend that a killing take place or that lethal force wi ll be employed” is cons titutionally prohibited. Enmund v. Florida , 458 U.S. at 797, 102 S.Ct. at 3376

.
Within five years of promulgating this appare nt br ight-line standard, the Court in Tison v. Arizona , 48 1 U.S. 13 7, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), dram atically refined the Enmund intent rule in a felony mur der and held that “major parti cipation in the-16-

felony committed, combined with reckless indifference to human life” demonstrated culpability

sufficientfor execution. Tison v. Arizona , 481 U.S. at 158, 107 S.Ct. at 1688. Thus, after Tison , nearly all defendants convicted of felony murder, both killers andnontrigger men, became

death eligible. Indeed, a death penalty may be imposed in a felony murder where a defendant kills, attempts to kills, intends that a killing take place, or that lethal force will be i mposed, or where a defendant’ s person al involvement

in the underlying felony is substantial a n d who exhibits a reckless disregard or indifference to the value of human l ife. State v. Howell , 868 S.W.2d 238, 265 (Tenn. 1993) (Reid, J., co ncurring) (citing Tison v. Arizona , 481 U.S. at 137, 107 S.Ct. at 1676; Enmund v. Florida , 458 U.S. at 797, 192 S.Ct. at 3377; State v. Brannam , 855 S.W.2d 563, 570-571 (Tenn. 1993); State v. Middlebrooks , 840 S.W.2d 317, 338 (Tenn. 1992)).
Despite its apparentlybroad holding, Tison did not relax the consti tutional mandate against the arbitrary adminis tration of the death penalty and, particularly, did not address the vic arious application of agg ravating circumstan ces other than felony murder. T h e SupremeCourt has emphasi zed that, to justify imposition of the d eath penalty, capital sentencing decisions must focus “ on the circumstances of each individual homicide and individual

defendant

.” Profit t v. Florida , 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976) (emphasis added)

.
Thus, once the thresho ld deter minatio n of Enmund-Tison has been satisfied, i.e. , “major participation combined w ith reckless indifference to h uman life,” rendering the defendant death eligible, the defendant may constituti o nally be held vicariously accountable for the circumstances of the offense, ev en if he was not the

cause or theactor responsibl e for the particular aggr avating circumstance.However, this pr emise is not ab solute; rather, it is subject t o statutory limitations . Tennessee has chosen to constitutionally narrow the class of death eligible defendants by statutorily listi ng a number of specific aggravati ng circumstances and expres sly requiring

the finding of at least one aggravating ci rcumstance beyond a reasonabl e doubt before the death penalty can be imposed. See

Tenn. Code Ann. § 39-2-203(g) (1982); see also Middlebrooks , 8403 We need not decide whether the current great risk aggravator demands a similar

result. See Tenn. Code Ann. §39-13-204 (i)(3)(1997). -17- S.W.2d at 344.

In order to establish the presence of the statutory aggrav

ating circumstance at is sue in the present case, th e State must establish that “[t ]he defendant knowingly cr eated a greatrisk

of death to two or more persons , other than the victim mur dered, during his act of murder.” Tenn. Code Ann . § 39-2-203(i)(3 ) (emphasis add ed). The plain la nguage of this provision, “read i n context of the entire statute, without any forced or subtle construction which would extend or limit its meaning,” see generally State v. Cauthern , 967 S.W.2d 726, 735 (Te nn. 1998); State v. Johnson , 970 S.W.2d 500, 505 (Tenn. Crim. App. 1996), perm. to appeal denied (Tenn. 1997), clearly focuses on the defendan t’s own actions or intent and contemplates consideration of the de fendant’s in divid ual actions in determining the most culpable capital defendants. Cf

. State v. Hall , 976 S.W.2d 121, 134 (Tenn. 1998) (plain language of (i)(8) aggrav ator, during defendant’s escape from lawful custody, adhered to in cons truing legislativ

e intent).

The (i)(3) aggravator in effect at the time of this homicide does not impute vic arious liability upon the defendant for the actions of an accomplic e. 3 Other statutory aggravators, bytheir plain language, clearly encompass consideration of the indiv idu al nature and circumstances

of the crime

itself, which woul d permit such a vicari ous application. Cf

. Ex parte Bankhead , 585 So. 2d 112 , 125 (Ala. 1991) (‘heinous atrocious cruel’ agg ravating circumstance upheld based on the manner of the killing and not on the defendant’s actual participation).

For the foreg oing reasons, we conclude that vicarious application of a statutory aggravating

circumstance may be consti tutionally permissibl e provided s uch app lication is contemplate d by the statute. However, the plain lan guage of the aggr ava ting circumstance (i )(3 ) at issue here does not conte mplate such application. Thus, i n the presentcase, if the jury should find that the Defendant’s accomplice fired t he gunshot-18-

establishing the (i)(3) aggr avator, the (i)(3) aggravator cannot be v icariously imputed to the Defendant.

The prosecutor

argued to the jury that

the Defendant fired the shot that graz ed the bystander. The crime

scene report that was

withheld from the defense and jury indicated the shot was not fired from the loc ation where the victim was murde red, but from the front of the store where the armed accomplice was located. This armed accomplice had put his gun to the head of the security guard prior to the shot that grazed the bystande r. Although the state now argues that the Defendant could have fired this shot as he exited th e front door, there was no testimony that Defendant fired this shot as he exited the store. It w as the jury’s responsibi lity to weigh an d consider the aggravating and mitigating factors. See Tenn. Code Ann. § 39-2-203(e)(1982); State v. Butler , 980 S.W.2d 359, 362 (Tenn. 1998).
Although there was also proof that there were other customers in the store, we are unable to conclude that the jury would still ha ve applied this aggravating circumstance if it had found the Defendant did not fire the shot that grazed the bystander. We are hesitant to substitute our judgment for that of the jury in view of the evidenc

e withheld

from them. C o nsidering this evidence whic h was withheld from the de fense and the jury, along w ith the erroneous applicationof the felony murder aggrav ator as will be more fully discussed hereinafter, we conclude there is a reasonable probability that the jury would have reached a different result as to sentencin g.

I. False Evidence

Defendant further argues that the State k nowingly used false evidence; an d, therefore, the standard set forth in United States v. Alz ate , 47 F.3d 1103, 1110(11th Cir. 1995), should be applied. I n Alzate , the court found prosecutorial misconduct and reviewedto see if there was any reasonable possibility that the false evidence affected the jury’s decision. Id

. The proof in Alzateshowed that the district attorney general found out that a s tate’ s witness had testified falsely, but did not take steps to correct it in rebuttal.-19-

Id

. at 1108. In the present case, the re is no proof showing that the State deliberately used false evidence. This argu ment is without merit.

J. Evidence that Victim Had a Gun
Finally, Defendant argues that the Stat e should have disclosed th e fact that the victim was carrying

a g un at the time of the shooting. This does not establish a Brady violation. A Xerox copy of a photo graph ofthe gun was found in defense counsel’ s file, indicating that the information had been made available. Moreover, this evidence is neither exculpatorynor materi al. Th e unfired gun was found in the victim’s pocket, and there is
no evidence that the vic tim at tempted or had the o pportun ity to defend hi mself. Accordin gly, proof of the victim having a gun in his pocket at the time of the robbery would not have refuted the State’s argument at trial that the victim was defen seless.

II. BATSONCLAIM

Defendant argues that the post-conviction court erroneously held that the issue of whether the prosecution use d its peremptory challe nges to exclude African- American persons from the jury had been p reviously determine d. In Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed 2d 69 (1986) , the United States Supreme Court held that ? the State’s privilege to str

ike individual juro rs through peremptory challenges, is subject to the commands of the Equal Protection Clause.” Id

. at 89, 106 S.Ct. at 1719. Defendant submits that at the time his case was before the Supreme Cou rt, he had not yet been given
an opportunity to d evel op the evidence necessary to establish a prima facie case under Batson , which was released while this case was on direct appeal, because the trial court had specifically refused to al low him to make a factual record other than to say that all the jurors and two alternates were white. Therefore, Defendant contends that he has not been given a full and fair hearing on the matter, and the issue cannot be considered previously determined.-20- A. Waiver of Batson Issue

Under the Post-Conviction

Procedure Act govern ing this petition, a defendant could raise all constituti onal claims except those which had been previously deter mined, waived,
or barred by the s

tatute o f l im itations. Tenn. Code Ann. § 40-30- 112 (repealed and superseded by Tenn. Code Ann. § 40-30-206(g), (h)) . In House v. State , 911 S.W.2d 705 (Tenn. 1995), our supreme court held that “a ‘full andfair hearing’ sufficient to s upport a finding of previous determination oc curs if a petitioner is g iven the opportunity to present proof and argument.” Id . at 706. The burden is on the post-co nviction defendant to allege facts to overcome the applicati on of procedural barriers. Smith v. State , 814 S.W.2d 45, 49 (Tenn. 1991); see also Tenn. Code Ann. § 40-30-104(10) ( repealed).

In the present case, the post-conviction co urt held that this issue had not been wai ved beca use it was specificall y raised in a proceedi ng before a court of competent jurisdiction, the Supreme Court. The court w ent on to find that

this fact rendered the issue previously determin ed and, therefore, inappro priate for post -convi ction r

elief. In support of this determination, the post-conviction court quoted this portion of the supreme court’s opinion: This case came to trial on 2 December, 1985, approximately thr ee months prior to the time the Batson decision was handed dow n. . . . However, in Griffith v. Kentucky , 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), in two cases in which the e xercis e of peremptory challenges at trial were the principal issue, the court, in a spl it decision, held, ? a new rule for the conduct of criminal prosecutions i s to be applied retroactiv ely to all cas es, st ate or federal, pending on direct review or not yet final, with no exception for cases in which the new rule

c onstitutes a clear break with the past.” Therefore, there is no margin for dev iation in this case if defendant has made a prima facie showing of discri mination. We hold that he has not. State v. Johnson , 762 S.W.2d 110, 11 3 (Tenn. 1988).

As noted by our

supreme

court on direct appeal, the specific objection made at trial
w as to the exclusion of potential jurors challenged for c ause and excused over defens e objection. Id

. at 112. However, the supr eme court went on to

address the Batson issue:-21- There is not an iota of evidence i n this record to show this issue was ever presented to the trial court, either at the trial pro ceedin g or at the hearing on the motion for new trial. There was

never an objection made on the basis ofthe prosecutor’s removal of black persons from the venire by the exercise of peremptory challenges. The record reflects tha t the iss ue was never asserted in the trial c

ourt during the venire selection pr ocess, or in the impane lling of the jury. There is no r eference to the record to support th e generalizedassertion that the State Attorney exercised peremptory challengesto strike six

(6) eligible black persons from the jury panel. There was nothing in that regard called to the trial judge's attention to enable him to rule on the issue. It would seem to us the appropriate procedure w ould be to call such matters to the trial court’s attention at the time the event occurs in order that a ruling on the

issue may be either made or reserved for consideration. This procedure will afford court and couns el the opportunity to note or produ ce whatever

evidence is avail able. The trial judge can then deter mine if the circ umstances concerning the prosecutor ’s use of peremptory challe ng e s creates a prima facie case of discrimination against black jurors. Id . at 113-14.

In Griffith v. Kentucky , 479 U.S. 314, 327, 107 S.Ct. 708, 715, 9 3 L.E d.2d 649 (1987), the United States Supreme Cour t gave limited retr

oactivity to Batson by

ruling that it applies to all cases, state and federal, which r aised a Batson challenge and which were pending on direct appeal at the time Batson was announced. There is nothi ng in either of these cases to suggest that a challenge to the unconstitutional exercise of peremptory challengescan be made in other than a timely fashion, that is, prior to the time the jury is actuallyselected and sworn. H ere, Defendantfailed to raise the correct claim before the jurywas sworn. At v

oir dire, trial couns

el did n ot challenge the prosecuti on’s use of per emptor ychallenges. Instead, the Batson claim was not raised until the case was on direct appeal to the supreme cour t.

Accordin gly, we find that the applicable p rocedural barrier is waiver, rather than, as the post-conviction court held, that the issue was prev

iously determined. See Tenn. Code Ann. § 40-30-112(b)(1) (repealed).

B. Ineffective Assistance of Counsel - Batson Issue
Remaining is the issue of whether c ounsel was ineffective for fail ing to raise th e-22-

appropriate objection durin g voir dire . In order to show ine ffecti ve assistance of counsel, Defendant m ust first establish that the services rendered or the advice given w

as bel o w ? the range of

competence demanded of atto rneys in criminal cases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must sho w that there is a reasonable probability

that but for cou nsel’s error, the resu lt of the proceeding woul d have been different. Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 20 68, 80 L.Ed.2d 674 (1984); Best v. State , 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).

At the time of voir dire proceedings, trial c ounsel was

aware that Batson had been argued before t he United States Su preme Co urt; howeve r, he did not specifically object to the State’s use of its peremptor y challenges to ex

clude African-American jur ors.

In reviewing whether counsel should have objected to the State’s use of peremptory challenges, the court must determine whether counsel’s performance was unreasonable under prevailing professi onal norms. Strickland , 466 U .S. at 68 8, 104 S.Ct. at 2065. Typically, counsel wi ll not be found ineffective for failing to raise a violation of principles enunciated in a case which has not yet been decided at the time of trial. See Welc h v. State , 836 S.W.2d 586, 590 (Tenn. Crim. App. 1992). However, under extraordinary facts,
an attorney’s failure to raise such a claim has been held unreasonable. See Virgin Islands v. Forte , 865 F.2d 59, 62-63 (3d Cir. 1989).

In Forte , although Batson had not yet been decided, thedefendant and consulting defense counsel had directed trial counsel to preserve the Batson issue by objecting to the prosecutor’s perempt ory c hall enges based on race. Id . at 63. The court stated that it s finding of ineffective assistance w as narrowly based on

the fact that trial counsel fail ed to honor her client’s reasonable request that she make a n objection to preserve his rights under a case then pending in th e Supreme Court. Id

. The present case does notpresent such extraordi nary circumstances. While trial counsel was aware that Batson had been argued in the United States Supreme Court at-23-

the time of the voir dire proceedings, he did not make the correct objection. More than the failure to make an objection based on the mer e knowledge of an un decided case is required before an attorney’s performance may be held deficient. According ly, we findthat trial counsel’s performance was not deficient under Strickland

.

III. DISCOVERY RELA TING TO BATSONISSUE

Defendant c ontends that the matt er should be remanded to the post-conviction court
so that Defendant may take discov ery and present

evidence to show that

the prosecutors in his case had consistently used peremptory challenges again st poten tial AfricanAmerican jurors in other cases.Because we f ind that Def endant’s Batson claim was waived by his failure to raise it at trial and that tri al counsel was not ineffectiv e, we decline to reman d the matter to the trial cour t for the discovery and presentation of evidence o n the issue.

IV. INEFFECTIVE A

SSISTANCE OF C

OUNSEL AT TH E PENALTY PHASE

Defendant contends that trial counsel provided ineffective assi stance by failing to investigate, develo p, or pr epare any eleme nts of a m itigation case until after the guilty verdict was rendered; failing to offer the jury any

meaningful mitigation; faili ng to investigate
or defend against the aggravating factors raised by the State;and failing to be an adequate advocate for Defendant. Although we conclude trial counsel’s performa nce was deficient, we conclude there has been no showing of prejudice.

A. Invest igation and Presentat ion of Mitigating Evidence

Defendant contends that trial counsel failed to in vestigate or prepare for the penalty phase. He contends that counselwas unaware of numerous family members and friends, two social work experts, and a church deacon who

could have testified about the details
o f Defe ndant’s character and backg round. Nor did counsel obtai n affidavits from witnesses-24-

who were unavailable to testify at trial. Specifically, Defendant conten ds that because of counsel’s deficiencies, the jury was n ot g iven an opportunity to consider Defendant’s character and background.

In death penalty cases, the sentencer

may not be precluded from consi dering any
a spect of a defendant’s character or rec ord as a basis for a sentence l ess th an death

. Lockettv. Ohio , 438 U.S. 586, 60 4-05, 98 S .Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1 978) (plurality opinion); see also Johnson v. Texas , 509 U.S. 350, 361, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993). The Unit ed States Supreme Court has held tha t mitigating evidence is relevant to sentenci ng hearings and should be h eard. See Californ ia v. Brown , 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987); Eddings v. Oklahom a , 455 U.S. 104, 113-15, 102 S.Ct. 869, 876-77, 71 L.E d.2d 1 (1982). ?< [E]vidence about the defendant’s background and character is relevant because of the bel ief . . . that defendants who commit criminal ac ts that a re attributable to a disadv antaged background, or to emotional and mental problems may be less culpable than defendants who have no such excuse.’” Goad v. State , 938 S.W.2d 363, 369 (Tenn. 19 96) (quoting Brown , 479 U.S. at 545, 107 S.Ct. at 841) (O’Con ner, J., concurring) ).

There is no legal requir ement and no established practice that the accused must offerevidence at the penalty phase of a capital trial. State v. Melson , 772 S.W.2d 417, 421 (Tenn. 1989). In fact, in many death penalty cases, counsel has properly decided not to offerany evidence at the penalty phase. Id. at 421 ; see also State v. Zagorski , 701 S.W.2d 808 (Tenn. 1985). However, the failure to investigate and prepare for a possible
ca p ital sentencing hearing is generally below

the range of competence demanded of criminal defense attorneys. Zagorski v. State , 983 S.W.2d 654, 657 (Tenn. 1998).

At the post-conviction heari ng in the present case, tr ial counsel testified that with the exception of what was going on in his mind prior to and during the trial, he di d not do any formal preparation for the sen tencing hearing until after the jury returned w ith a guilty verdict. He did not review Defendant’s school or medical records. He talked with family-25-

members, especially Defendant’s mothe r, regarding Defendant’s prior life. He talked with Defendant’s mother before trial and prior to the penalty

phase; however, he did not talk to her about testifying at the sentencing hearing until after the verdict was

announced. All of his preparation was done during the three-hour per iod between proceedings. Trial counsel did not consult any mitigating experts, psychologists, or sociologists. Hi s associate, who did most of the investigativ e work, testified that he di d not work on the penalty phase. The assistant public defender

who handled the case before tri al counsel was retained testified that the mitigation investigator for the public defender’ s office went to St. Louis and would have gathered background information on Defendant. This information would hav e been given to retained couns el; however, no such information was found in his fil e.

B. Deficiency Prong

We can onlyconclude that the utter failure of trial counsel to

investigate and prepare forthe possible capital sentenc ing hearing was c

learly bel owthe range of competence demanded of criminal defense attorneys. See Zagorski , 983 S.W.2d at 657. Howeve r, Defendant must also establish preju dice from this deficient performance in or der to be entitled to relief. Strickland , 466 U.S. at 694, 104 S.Ct. at 2068

. C. Prejudice Prong

In Goad v. State , 938 S.W.2d 363 (Tenn. 1 996), the supreme court set forth the followi ng factors to consi der in determining whether Defendant was prejudiced by counsel’s deficiencies: (1) the nature and extent of av ailable mitigating pr

oof, (2) whether substan tiall ysimilar proof was other wise presented to the tr ier of fact, and (3) whether there was strong evidence of aggravating factors so that “the mitigating evidence would not have affected the jury’s determination.” Id . at 371.

These factors were recently applied in He nley v . State , 960 S.W.2d 572 (Tenn. 1997), cert. denied

, 119 S.Ct. 82, 142 L.Ed.2d64 (1998), where Defendant was convicted-26-

of aggravated arson and two counts of premeditated murder. “At

trial Henley maintai ned his innocence and attempted to discredit the prosecution’s evidence . . . .” Id

. at 574. At the p enalty

phase, the defense called the defendant’s mother to the stand. In the presence of the ju ry, she disrupted her own testimony by announcing that she wanted “to tal k to” defense co unsel. A recess was h ad, followed by th e defense res uming i ts proo f bycallin g the de

fendant’ s grand mother, without expla ining the failu re of t he defen dant’s mother to return to the stand. The gr andmother tes tified to various attributes of the defendant, and the defendant himself testified about a financi al reversal that cause d him to lose his grandfather’s farm. Id . at 575-76. The jury sentenced the defendant to death based upon finding one aggrav ating factor in each homicide,that ea ch mur der was “‘especiallyheinous, atrocious, or cruel i n that it involved tor ture or depravity o

f mind.’” Id

. at 576; see

Tenn. Code Ann. § 39-2-203(i)(5). In his post-convicti on proceeding, Henley alleged that his

counsel failed t o inves tigate and prepare fo r the sen tencing hearing, including the claims

that counsel failed to inves tigate his mental condition and request an appropriate evaluation.

In addressing the prejudic e issue first, see Strickl a nd , 466 U.S. at 697, 104 S.Ct. at 2069, the supreme court found that any fa ilure of co un sel to call as witnesses family members, some of whom testified at the post-conviction hearing ab out th e positive attributesof Defendant, was not prejudici al. Utilizing the f irst and second prongs of the three-pro ng test provided in Goad , the court noted that the proposed evidence not only duplicated but perhaps, due to its nature, w ould have diminished the poig nant testimony of Henley’s grandmother. Further, regarding the nature of the proposed testimony , the court acknowledged the principle of California v. Brown that a disadvantaged backg round is often a proper source of mitigati ng evidence, but expressed concern about the quality of witnesses having

a limited relationship w ith Henley

or having personal

knowledge about his drug use at the time of the crimes. At this juncture, the cour t declared that

“[a]ppellate courts must consider the quality of the proposed testimony rather than th e quantity of witnesses

when determining w

hether prejud ice has been established.” Henley , 960 S.W.2d at 582.-27- As to the third prong establ ished in Goad , the Henley court observedthat the proof of the aggravating ci rcumstance was strong
. Id

. Defendant killed an elderly couple. He shot them several times and then burned them by settin g fire to their house. The court found ample support for the single aggravating circumstance that the crime was especially heinous, atrocious, or cr uel, involving t

orture or depravity

of mind. Id

.

D. Goad Analysi s

Und erthe three factors set forth in Goad , we must first look at th e “nature and extentof the mitigating evidenc e that was available but not presented.” Goad , 938 S.W.2d at 371. At the post-conviction hea ring, Defendant presented testi mony and affidavits of family members and friends. The witnes ses who had testified at tr ial indicated that trial counsel never asked them any questions regar ding Defendant’s character o r background. Witnesses who did not participate in Defendant’s trial indic ated that they would hav e been willingto testif y if trial counsel had contacted them. This pr oof showed that Defendant lived in a housi ng project until he wa s ten or twe lve years old. He was a sickl y baby, and his father pampere d him. Subsequently, the family moved to a nicer neighbor hood. Defendant’s father died shortly after the family moved, and Defendant’s mother remarried. Defendant’s stepfather, although a good man, w as an alcoholic. Defendant’s mother was a ? workaholic” and ow

ned several properties. Defendant worked with his mother full- time remodeling and repairing these proper ties. He had a good relati onship with his mother and
was the mediator of family problems. Defenda nt’s sons remembered him as being a good and loving father. Defendant also presented proof at the post-conviction hearing regarding the housing projects he lived in as a child and about the effects of urban living on young African-American males.

In reviewing the “

quality of the proposed testimony,” see Henley , 960 S.W.2d at 582, it would have been proper proof at a sentencing hearing. As in Henley , however, the evidence does

not reveal a “disadvantaged backg round,” nor does it sugg est “emotional-28-

and mental problems [that make Defendant] l ess culpable than defendants who have no such excuse.” See Brown , 479 U.S. at 545, 107 S.Ct. at 841 (O’Conner, J., concurring).

As to the second factor offered in Goad , whether evidence similar

to the proposed evidence had already been heard by th e jury, testimony regarding Defendant’s life, albeit less in depth, was presented to the jury at the guilt phase. Moreov er, at the penalty phase, Defendant’s mother testified that Defendant was an obedient and good son to her. She related that Defendant’s father had died in 1968, and she had remarried. She testified that Defendant was brought up going to SundaySchool an d church. Defenda nt had al ways kept in touch with her and had helped provide for her from time to time. She asked the jury to spare her son’s life and i ndicated that she was pray ing for everyone.
Moreover, some of the testimony presented at the post-conviction hearin g would have contradicted the proof presented at the guilt phase. Specifically, at tri al, Defendant testified that he had worked“a few jobs” through the years but that none had lasted for any long period of time. He test ifi ed that he was not working in October 1983; instead, his
common law wife was receiving welfare, and he was doing odd jobs. Moreover, Defendant’s mother testified that she did not know where Defenda nt had been workin g, and there were times she would not see him for mo nths. At the pos t-conviction hea ring, the testimony

showed that Defendant work ed with his mother on remodel ing and repairing her properties. Several

testified that Defendant was a hard w orker. It would not hav

e been credible to present such testimony at the sentencing hearing a fter Defendant himself had testifi ed to his s poradic wo rk history.

The third Goad factor, the competing streng th of the aggravating fac tors, furt her illustrates

that any deficient performance was not prejudicial. See Henley , 960 S.W.2d at 582. Here, the jury found three agg ravating circumstan ces. However, we do note that the felony murder aggravator was clearly err oneous and this Court now ques tions the applicability of the gr

eat risk aggrava

tor.-29- In State v. Howell , 868 S.W.2d 238 (Tenn. 1993), our supreme court commented that eviden ce of a pr

evious convic tion of a felony in volving viol ence to the person under Tennessee Code Annotated § 39-2-203(i)(2) is an aggravating

circumstance that is “more qualitat ivelypersua sive and objectively reliable than others.” Id . at 261. While none of Defendant’s seven prior felony co nvictions were for murde r, two were for attempted first degree murder. Moreover, the number of convictions must be considered in reviewing this aggravatin g circumst ance qual itatively.

Based on the application of the factors se t forth in Goad , the Court finds that Defendant has failed to demonstrate prejudicial ineffectiveness of counsel in pre paring for and conducting a mitigatio n defense at the sentencin g hearing. Specifically, it appear s the quality of availabl e mitigating proof woul d have been unpersuasive.

E. Voir Dire

Defendant contends that couns el was i neffective by failing to us e voir dire

as an opp or tunity

to “sensitize” the j ury to Defendant’s case. Defendant further submits that counsel was ineffective by fail ing to consider filing any motions relating to the voi r dir e , failing to request a special juryquestionnaire, and by failing to use his time with the jurors during voir dire

as an opportunity to get his penalty phase “message” across.

While voir dire may certainly be used to educate jurors on the sentencing process in a capital tr

ial, the tr ue purpose is

to ensure th at a fair and i mpartial ju ry is impane led. The trial court properly inst ructed the jury on the l aw at the sentencing hear ing, and thejury is presumed tohave followed the instr uctions of the court. State v. Woods , 806 S.W.2d 205, 211 (Tenn. Crim. App. 1990).

Counsel’s failure to “sensi ti ze” jurors or educat e them regarding consider ation of punishmentdid not constitute ineffective a ssistance of counsel. Given counsel’ s trial strategy of an al ibi defense at the guilt phase, refraining from asking q uestions about-30-

sentencing could have been employed as a tactical decision. M oreover, because the jurors were sufficiently q uestioned to ensure that a fair and impartial jury was impaneled, Defendant has shown no prejudic e.
F. Investigation

and Defense A

gainst Aggrav

ating Circumstances

Defendant conte nds that trial counsel w as ineffective by failing to provide an affirm ative defense to the aggravating circumstances

proven by the State. Specifically, he submits that counsel s hould ha ve investiga ted and s hown that Def endant c ould not have fired the shot which grazed a customer during the robbery and which was used to support the aggravating ci rcumstance that D efendant put two or more persons at g reat risk of death. He also submits that tria l counsel should have shown the j ury that the seven pri or violent felonies were

the result of one incident.

As noted earlier, at the post-conviction hearing, Defendant presented the testimony of Robert A. Poole with the Dallas County Cri me Lab. He testified that based on his review of the records, including the withheld police reports, he could say with reasonable scientific certainty that the gunman who shot the victim did not fire the bullet that grazed a customer. Trial counsel testified that he did not consult with a ballistics expert, nor did he vi sit the crimescene. Defendant also presented the affidavit of Dr. Charles S. Petty. In Dr. Petty’s expert opinion, it would be ex tremely rare for

a single bullet fired

from a ha ndgun to k ill two persons.

Counsel was not deficient in failing to establish that defendant did not fire the shot that grazed the bystander. As previously s tated, the crime scene

report had been withheld from him. We must evaluate counsel’s conduct from his perspective at that time,not on the basis of hindsight. Strickland , 466 U.S. at 689, 104 S.Ct. at 2065

.
As to the prior convictions, each represented a separate conv iction regardless of

the fact that all seven offenses were committed at the same time. The informations read to-31-

the jury containedthe same date of conviction, and in each case the victim or victims were named. In addition, the shots fired by Def endant in Cali fornia hit two people and nearly strucka child. Highlig hting these circumstances and injuries would hav e r e ndered any argumentby cou nsel regarding the single episode highly questionable. This issue is without merit.

G. Advoca cy at the Penalt

y Phase

Defendant contends that trial counsel was ineffecti ve in t he penalty phase by waivingopening argument, by failing to make necessary objections to the prosecutor’s closing argument, by failing t o adequately question Defendant’s mother, and by giv ing an incompetent closing arg ument.
Regarding trial counsel’s decis ion not to pres ent an opening statement at the penalty phase, Defendant has failed to show that this w as error. There is no requirement that an opening statement be made. More over, trial counsel was not questioned at the post-convictionhearing regarding his reasons for not givin g an opening statement. The
same is true as to counsel’s direct examinationof Defendant’s mother. The record does not support the claim of ineffective assistance.
Next, Defendant contends that trial coun sel failed to object during the prosecutor’s closing argument. The State made several improper arguments to the jury to which trial counsel did not objec

t. Initial ly, the Sta

te’s attorn ey stated, “I guess al l my life I was in law enforcement. I was a special ag ent for the FBI before that, so I guess I enjoy that kind of thing.” See State v. Harries , 657 S.W.2d 414, 421 (Tenn. 1983) (improper for prosecutor to refer to facts not in evidenc e). He also argued, “A nd if I thought it would hon estly do Erskine Johnson any good to sentence him to life in our penitentiary, if that would rehabilitatehim, I woul d tell you t o do that ,” and “[i] f I since rely could look you in the eye and tell you to giv

e him life a nd maybe he’ll be rehabilitated, I woul d ask you to do that. But I don’t think that’s the case here.” See Coker v. State , 911 S.W.2d 357, 368 (Te n n.-32-

Crim. App. 1995) (prosecutor must not express a personal belief or opinion). The State’s attorney then deliv ered an ar gument regarding deter rence. See State v. Bates , 804 S.W .2d 868 , 881-82 (Tenn. 1991) (issue of specific or general deterr ence should be avoided by the prosec ution in clo sing argument at a capital sentencing hearing). Trial counsel failed to object to these statements b y the prosecutor.

While the State’s arguments were clearly improper and tr ial couns el should have objected, Defendant has failed to s how pr ejudice. As pointed out in State v. Irick , 762 S.W.2d 121 (Tenn. 1988), in review ing the propriety of ar

gument in a capital sentenci ng proceeding, the reviewing c ourt must determine whether the pros ecutor’s comments affected the sentencing decision. Id

. at 131. ?If the Court cannot say the comment s had
no effect on the sentencing, then the jur y’s decision does

not meet t he standard of reliability required by the Eighth Amendment.” Id . (citing Caldwell v. Mi ssissippi , 472 U.S. 320, 105 S.Ct. 2633, 2646, 86 L.Ed.2d 231 (1985)). From our review of the re cord , including the trial court’s numerou s instructions to the jury that argu ment and statements
o f cou nsel were not to be considered as evidence, the Court finds that the prosecu tor’s closing argument did not affect the jury’s sentencing decision nor did his comments create a cumulative effect that would reflect prejudice. Thus, the prejudi ce prong in Strickland has not been satisfied.

Defendant next contends that trial counse l’s closing argument was ineffectual. Specifi cally, he contends that the argument w as short and was

totally devoid of content. He points t o one statement by counsel as par ticularly ineffective : “I don’t know if I can argue that Erskin e’s a good enough man that he de serves to continu e to live.” Although not cited by Defendant, trial counsel went on to argue,“Counsel seems to be arguing that he’s such a bad man that he doesn’t d eserve tolive. But that ’s a decisi on that yo u have to make, that you hold in y our hands.” Taken in context , it appears that trial c ounsel was trying to emphasize to the jury its, not the prosecution’s, duty to decid e the approp riate sentence. As to

the brevity of the arg ument, Defendant has not met the prejudice pr ong o f St rickland . Having reviewed trial counsel’s closing argument, we do not find that it-33-

constituted ineffective assis tance.

H. Ineffective A

ssistance at the Guilt P hase

Defendant con tends that trial counsel w as ineffective by failing

to investigate Bev

erl y Batts, resulting in a flawed cross-examinati on of her; by failing to adeq uately investigat e and prove the alibi defense; and by failing to object to the prosecution’s repeated impr oper conduct.
I. Cross-Examination of Beverly Batts

Defendant contends that trial counsel was ineffective by

failing to askDefendant’s California attorneys for inf ormation rega rdin g Beverly Batts. At the post-conviction h earing, Defendant presented an affidavit from his California trial counsel which indicate d that he had in his possession a police report sh owing that Ms. Batts had lied to the police and attempted to falsely implicate someone in a crime in order to pro tect herself from prosecution.

While i t would have been helpful for t rial counsel to have had this information to further impeach Ms. Batts, it is clear from a review of her testimony that her character did not remain untarnished. At tri al, Ms. Batts admitted that i n November 19 84, she w as convicted in California of accessory to armed robbery. Duri n g cross-examination, Ms. Batts also admitted that she hadasked Defendant to help her make bond in California and that she was unhappy with him when he failed to do so. She also admitted that she was granted immunity in exchange for testifying against Defendant in California. Regardless of whether or not counsel w as ineffective by failing

to askDefenda nt’s Calif ornia att orneys forinformation, based on trial counsel’s cro ss-examination of Ms. Batts , Defendant has failed to show prejudice an d is not entitled to reli ef on this claim.

J. Trial Counsel’s Inv estigation and Present ation of Al ibi Defense-34- Defendant contends that trial counsel neither adequately inv estigated nor appropriately presented the alibi defense duri ng the guilt phase. Specificall y, he contends that counsel was ineffective by failing to intervie w all alibi witness es before determining which sh o uld testify at trial and by failing to present affidav its from those witnesses w ho
were unable to attend the t rial. In support of this cl aim, Defendant presented testimony and affidavits of additional witnesses who would hav e been willing

to testify in support of Defendant’s alibi defense. Defendant also contends that tri al counsel was ineffective by failing to introduce proof, such as his mother’s driv er’ s license, to show that October 1, 1983, was in fact her birthday. Defendant points out that the prosector emp hasized this lack of evidence during closing argument.

At trial, the defense presented sev en alibi witnesses, i ncluding two friends of the family, Defendant himself, his mother, his two si sters, and his girlfr iend. All testifiedthat they saw Defendant at his mother’s birthday party on October 1 and 2, 1983. The list of potential alibi wit nesses pro vided before trial consi sted of over twenty- five names, including those who testif ied at the post-con viction he aring. Th e wi tness es at the post-convicti on hearing testified that the y would have been willin g to testif y, but were never inter viewed or asked to testify. These witnes ses testified they did not k now about the trial until after they were notified concerning these post-conviction proceedings.

Trial counsel testified that he recei ved a list of potential alibi w itnesses from Defendant. He attempted to contact all t he people on the list and asked Defendant’s mother to fin d those without a correct phone number or address. With regard to th e number of alibi wi

tnesses wh o came to testify, associate couns el testified that it was the number they believed to be appr opriate. He also testified th at the attorneys, the Defendant, and his family discussed the potenti al witnesses and together decided which could provide relev

ant testimony.

At the post-conviction hear ing, the Defendant presented do cumentation of his mother’s birth date as being October 1, 1926. At trial, no such doc umentation was-35-

presented. D uring clo sing argument, the prosecutor made the following ar gument regarding this fact: Did anybody show us any thing totell us that there was in fact abirthday on that date? All we needed was Florence Bowman to open up a dri ver’s license and say, now here’s my birthday, or anything. We di dn’t have that.
In denying this claim, the post-convic tion court found that trial coun sel had developed a reasonable strategy and defense in the guilt phase and had presen ted a strong case ofalibi. The court found that the al ibi witnesses wh o testified were selected because the Defendant, his mother, and both attorneys thoug ht they were the best of the group to present

Defendant’s case. The court noted that there is a “constant dan ger that if one presents too many wi tnesses on the same

subject that on cross-ex amination they
can be trip ped up and sometimes major inconsi stencies shown that w ill destroy the ali bi defense.” The court found that the “downfall o f the defense, although ably presented,was the unanswered, unexplained left palm print of Defendant found in the top right passenger side of the getaway v

ehicle.”

The findings of fact and conclusions of law made by the

post-conviction court are given the wei ght of a j ury verdict, and thi s Court is bound by those findings unless the evidence contained in the re cord preponderates otherwise. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990); Teague v. State , 772 S.W.2d 932, 934 (Tenn. Crim. App. 1988). Moreover, this Co urt must defe r to trial strategy and tactical choices when they are informed ones based upon adequate preparation. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Clear ly, the decisionof which alibi witnesses to call w as a matter of trial strategy. Thi s issue is without mer it.
K. Trial Counsel’s Failure to Object to Improper Closing Arguments

Defendant contends that counsel was ineffective by f ailing to object to the prosecutor ’s comme nts during argument in w hich he bolstered the testimony of the investigating

officer, stated his personal opi nion that Ms. Batts was te lling the truth, and made a victim impact arg ument.-36- As noted by the State, upon request of trial counsel, the jury was instructed
numerous times throughout the trial that they were not to c onside r the statements of counsel as evidence and that they were only to consi der evide nce that came from the witness stand. It is presumed that the jury followed the tr ial court’s ins

truct ions in this regard. State v. Woods , 806 S.W.2d 205, 211 (Tenn. Crim. App. 1990). Moreov er, as noted by the post-conviction court, victim impact proof was admissible at the time of trial. Booth v. Maryland , 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), overruled by Payne v. Tennessee , 501 U.S. 808, 111 S.Ct. 259 7, 115 L.Ed.2d 720 (1991), was not re leased until June 15, 1987. Defendant has failed to show that trial counsel wa s ineffective on these grounds.

L. Exclusion of Evidence Concerning A dequate Defense in a Ca pital Case

Defendant contends that the post-conviction court erred by excluding from evidence
an article from the Tennessee Law Review entitled Defending Life In Tennessee Death Penalty Cases , the Tennessee Association of Criminal Defen se Lawyers manual entitled Tools forthe Ultimate Trial , and the testimony of William Redick, formerly with the Capital Case Resource Center, r egarding the conduct of tri al counsel in this case.

In Strickland v. Washington , 466 U.S. at 688, 104 S.Ct. at 2067, the Supreme Court indicated that the assessment of whether counsel provided effective assistance involves
a comparison of defense counsel’s conduc t to “prevailing

professional norms.”

While the Court did not specifically hol d that expert tes ti mony was appropriate or necessary, the
m ore prudent ruling in the present c ase would have been to all ow the testimony and exhibitsto be introd uced as evi dence of the pr ofessional no rms in capital cas es at the time of Defenda nt’s trial, regardle ss of the weight given to such proof. However, having

reviewedDefendant’s offer of proof, the Court does not fin d that i t would have entitled Defendant to post

-convi ction r

elief.-37- V. MIDDLEBROOKS ERROR

Defen dant submits that it was error for the State to use the felony murder aggravating

circumstance in sentencing him to death, and he contends that such err or was prejudicial. Defendant was convicted of felony murder, and the felony murder

aggravating circumstance was applied by the jury in sentencing

him to death. In State v. Middlebrooks , the Tennessee Supr

eme Court held that the State is precluded from us ing felony murder
as an aggravating

circumstan ce when the underlying conviction is felony

murder. 840 S. W. 2d at 346. In State v. Howell , 868 S.W.2d 238 (Tenn. 1993), the supreme cour t adopted a harmless error analysis for reviewing whether r ese ntencing is required where the felon y murder aggrav ating circumstance has been applied to a felony murde r conviction.
Defendant argues that

the Middlebrooks error was not harmless because the two remaining aggravating factor s are weak. First,he argues that there was insufficient proof of the aggravating circumstance that he created a great risk of death to two or more persons other

than the murdered victim. He further argues that the ? prior violent f elony” aggravating

circumstance was w

eak because the sev

en con victi ons wer

e the res ult of a single incident. Moreover,while he concede s that t his argument has been reject ed by Tennessee courts, see State v. Hodges , 944 S.W.2d 346, 357 (Tenn. 199 7), he argues that the convictions should not have been considered becaus e they occurred nine

months after this murder.

In Howell , the supreme court held that: In order to guarantee the prec ision that individuali zed sentencing consideratio ns d emand and provide a principl ed explanation for our conclusion in each case, it is important, when conducting harmless error review, to completely examine the record for the presence of factors which potentially influence the se ntence ultimately imposed. 868 S.W .2d at 260-61. These facto rs include, withou t limitation, th e following: (1) T he number and strength of remaining valid aggrav

atin g circumstances. (2) The prosecut or's argument at sentencing. (3) The evidence admitted to establish the invalid aggravator.-38- (4) The nature, quality, and s trength of the mitigating evidence. Id . at 261.

The H o well court recognized that “more crucial than the sum o f the remaining aggravating

circumstances is the qualitative nature of each circumstance, its s u bstance and persuasiveness, as well as the quantum of proof supporting it.” Id. at 2 61. This is parti cularly tru e of the ? prior viole nt felon y” aggravato r; and its effect and quali tative persuasiveness increase s where th ere is proof, as in this cas e, of more than one prior violent felony convi ction. State v. Nichols , 877 S.W.2d 722, 73 8 (Tenn. 1994).

We first examine the number and str ength of the remaining val id aggrav atin g circumstances. Althoug h the jur y fo und the Defendant knowingly created a great risk of death to two or

more persons, other

than the victim murdered, d uring his act of murder, the sta te’s failure to reveal exc ulpatory evidence tends to negate this aggrav ating circumstance.

The other aggravating circumstance of prior convictions for v iolent f e lonies is admittedly strong. Defendant contends thi s aggravating c ircumstance should be gi ven less weight because all seven convictions were the res ult of a single incident. Regardless of the number

of incidents involved,Defendant was convicted o f seven prior felonies inv olving violence.
Next, we consider the prosecutor's argument at sentencing. The prosecution did not focus on the felony murder aggravating ci rcumstance. During closing argument, the prosecutor

made one statement, “Th ere’s no question in one of the aggravating circumstances, that this murder was committ ed during the perpetration of an attempted armed robbery.” Durin g rebutta l, the prosecutor read to the jury the felony murder aggravator

and stated, “By your verdict you have set that out.” These were th e only comments made regarding this aggravating ci rcumstance.-39- Next, we consider any evidence admitted to establish the invalid aggravator. Her e, the State did not present any ev idence on this aggrav

ator at th e se ntencing hearing. In fact, the only proof presented at the sentencing hearing by the State was documentation of Defendant’s seven prior convictions.
Finally, th is Court m ust consi der the na ture, qua lity, and strength of the mitigating evidence. At the sentencing hearing, the defense presented the testimony of Defendant’s mother. As found by thepost-conviction cour t, the testimony of Defendant’s mother was emotional. She tol d about D efe ndant’s ba ckground and how he had been a good son. Invoking God and Jesus Christ, she asked the jury to spare her son’s life. She continued her testimony

as she left the witness s tand, eventually w

alking out of thecourtroom, and then returning with a few last words.

The erroneous applicati on of the felony murder aggra vator must be considered along with the exculpator y evidence withhel d from the defense and jury relati ng to the great risk aggravator. Since the felony murder aggravator is clearly erroneous and the great risk aggravator

was arguably mis

applied, we are unable to c onclude that the jury would ha ve sentenced the Defendant to death based solely on the prio r violent felonies agg ravator. Thus, a remand for resentencing i s necessary.

VI. JURY INSTRUCTIONS

Defendant contends that the j ury instr uction directing the ju ry that it was to determine whether

he was guilty bey

ond a reasonable doubt andto a moral certainty w as misleading and vague in violation of the Fourteenth Amendment to th e U nited States Constitution. We disagree.

In several cases, this Court has upheld similar instructions as con si stent with constitutional principles. See Pet t yjohn v. State , 885 S.W.2d 364, 365- 66 (Tenn. Cri m. App. 1994); State v. Hallock , 875 S.W.2d 285, 294 (Tenn. Crim. App. 1993). Moreover,-40-

our supreme court has held that ? the use of the phrase < moral c ertainty’ by itself is insufficientto invalidate an instr uction o n the meaning of reasonable doubt.” Carter v. State , 958 S.W.2d 620, 626 (Tenn. 1997). This issue is w ithout merit.

While recognizing that our supreme court has previously uphel d the death penalty statute against constitutional challenges, Defendant attacks the constitutionality of the jury instructions

in order to preserve these argument s for late r review. With one exception, the post-convictioncourt correctlyheld that these claims have been waived by Defendant’s failure to raise them at trial and on direct appeal. See Tenn. Code Ann. § 40-30-112(b)(1). Defendant’ s claim that the jury instruc tions on the “great ris k of death” aggravating circumstance are impermissibly vag ue was rejected by our supreme court in Defendant’s direct appeal, State v. Johnson , 762 S.W.2d at 119; and thus, is previ ously determined. See Tenn. Code Ann. § 40-30-112(a). Regard less , as noted by Defendant, these challengeshave all been rejected by our supreme court. See, e .g. , State v. Smith , 893 S.W.2d 908, 926 (Tenn. 1994); State v. Brimmer , 876 S.W.2d 75, 86- 87 (Tenn. 1994); State v. Cazes , 875 S.W.2d 253, 268 (Tenn. 1994); State v. Van Tran , 864 S.W.2d 465, 478 (Tenn. 1993); State v. Smith , 857 S.W.2d 1, 22-23 (Tenn. 1993); State v. Bane , 853 S.W.2d 483, 488 (Tenn. 1993); State v. Black , 815 S.W.2d 166, 179 (Tenn. 1991); State
v. Bates , 804 S.W.2d 868, 883 (Tenn. 1991); State v. Payne , 791 S.W.2d 10, 21 (Tenn. 1990); State v. Barber , 753 S.W.2d 659, 670-71 (Tenn. 1988); State v. King , 718 S.W.2d 241, 249 (Tenn. 1986).

VII. CONSTITUTIONA LITY OF DEA

TH PENALTY

STATUTES

Defendant raises several ch al lenges to the constitutional ity of Tennessee Code Annotate d §§ 39-2 -204 and 206. Our supreme court has repeatedly rejected these arguments, even in Defendant’s direct appeal. Johnson , 762 S.W.2d at 118-19; see also , State v. Nichols , 877 S.W.2d 722; Brimmer , 876 S.W.2d at 86-88; Cazes , 875 S.W.2d at 268, 270-71; Howell , 868 S.W.2d at 258; Smith , 857 S.W.2d at 23; State v. Caughron , 855 S.W.2d 526, 542 (Tenn. 1993); State v. Evans , 838 S.W.2d 185, 196 (Tenn. 1992); Black ,-41-

815 S.W.2d at 17 9; State v. B arber , 753 S.W.2d at 664. The Tennessee death penalty statutes are constitutional

. State v. Middlebrooks , ___ S.W.2d ___ (Tenn. 1999).

VIII. CUMULA

TIVE EFFECT OF ERRORS

Defendant contends that thecumulative effect of all errors at trial, sent encing, and
on appeal violated his ri ght to d ue process a s guaranteed by the Unit ed States and Tennessee Constitu tions. W e have concluded Defendant is entitled t o a new sentencing hearing. Based upon our review, we reject De f endant’ s conten tion tha t the cum ulative effect of errors relating to the guilt phase of trial req uire reversal.

IX. DEFENDANT’S INNOCENCE

To the extent innocence is a required ele ment of any claim for relief, Defendant maintains that

he is innocent. The jury found Defendant guilty of felony mur der, and our supremecourt held that the evidence was suff icient to support t he verdict of the ju ry. State v. Johnson , 762 S.W.2d at 115-16.

X. CONCLUSION

It is indeed regrettable that almost 15 years after the or iginal trial, w

e must now remand this case for

a new sente ncing hear ing. There w

ere nume rous ite ms of exculpatoryevidence wrongfull y withheld from the

defense, alt hough most did not meet the Brady material ity te st. However, after thoroughly review ing the record and the law applicable to the issues raised in this app eal, we conclude the state’s failure to disclose exculpatoryevidence relating to the great risk agg ravato r combin ed with the erroneous application of the felony murder aggravator

necessitates a new sentenc ing hearing. As to all issues rela ting to the guilt phase of the tri al, Defendant is entitled to no r elief. The judgment of the trial court i s affirmed as it relates to those issues.-42- __________________________ JOE G. RILEY, JUDGE

CONCUR:
See Separate Opinion DAVID H. WELL ES, JUDGE

__________________________ DAVID G. HA

YES, JUDGE