Nicholas Todd Sutton v. State

IN THE TENNESSEE COURT OF CRIMINAL APPEALS
FILED
AT KNOXVILLE June 25, 1999
Cecil Crowson, Jr.
SPECIAL SEPTEMBER SESSION, 1998 Appellate C ourt
Clerk
NICHOLAS TODD SUTTON, ) C.C.A. NO. 03C01-9702-CR-00067
)
Appellant, ) MORGAN COUNTY
) (No. 7555 Below)
VS. )
) HON. GARY R. WADE, SPECIAL JUDGE
STATE OF TENNESSEE, )
)
Appellee, ) (Post-Conviction, Death Penalty)
)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF MORGAN COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN E. ELDRIDGE JOHN KNOX WALKUP
ELDRIDGE, IRVINE & HENDRICKS Attorney General & Reporter
Suite 350, Main Place
606 Main Street MICHAEL E. MOORE
P.O. Box 84 Solicitor General
Knoxville, TN 37901-0084
JOHN P. CAULEY
MICHAEL J. PASSINO Assistant Attorney General
LASSITER, TIDWELL & HILDEBRAND 425 5th Avenue North
213 Fifth Avenue, North Nashville, TN 37243-0493
Nashville, TN 37219-1901
CHARLES E. HAWK
District Attorney General
D. ROGER DELP
Assistant District Attorney General
FRANK A. HARVEY
Assistant District Attorney General
P.O. BOX 703
Kingston, TN 37763-0703
OPINION FILED __________________________
AFFIRMED
JOHN K. BYERS, SENIOR JUDGE
OPINION
In this capital case, the petitioner, Nicholas Todd Sutton, appeals as of right
from the judgment of the Criminal Court of Morgan County denying his post-conviction
petition. In 1986, the petitioner was convicted of first-degree murder and sentenced to
death by electrocution. The petitioner’s conviction and sentence were affirmed on direct
appeal by the Supreme Court. See State v. Sutton, 761 S.W.2d 763 (Tenn. 1988), reh’g
denied (Tenn. 1988), and cert. denied, 497 U.S. 1031, 110 S. Ct. 3287, 111 L. Ed. 2d 796
(1990).
On December 14, 1990, the petitioner, through counsel, filed a petition for
post-conviction relief, and an amended petition was filed on January 2, 1992. Thereafter,
Senior Judge William H. Inman was appointed to hear the petition on November 18, 1994.
In March 1996, Judge Inman granted the petitioner’s motion requesting that he recuse
himself, and Judge Gary R. Wade was appointed to hear the petition. The post-conviction
hearing was held over a period of five days from October 9 to October 14, 1996. On
October 23, 1996, the post-conviction court denied post-conviction relief.
On appeal, the petitioner raises the following issues:
1. Whether the state abused the discovery process, mislead and
misdirected the energies of petitioner’s attorney, and
concealed the state’s major witnesses, and whether the post-
conviction court erred in concluding that the issue had been
previously determined.
2. Whether the trial court failed to regulate the discovery process,
and whether the post-conviction court erred in concluding that
the issue had been waived or previously determined.
3. Whether excessive courtroom security denied the petitioner his
right to a fair trial, and whether the post-conviction court erred
in concluding that the issue had been waived or previously
determined.
4. Whether the petitioner was denied the effective assistance of
counsel at the guilt and penalty phases of his trial.
5. Whether the state falsely portrayed inmate safety and security
at the prison.
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6. Whether the state manufactured a prior statement by inmate
Lumbert for the post-conviction hearing, and whether the post-
conviction court erred by failing to address the issue.
7. Whether the state failed to disclose exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963) and Giglio v. United States, 405 U.S. 150,
92 S. Ct. 763, 31 L. Ed. 2d 104 (1972).
8. Whether the death penalty statutes are unconstitutional.
9. Whether imposition of the death penalty in this case would be
arbitrary and capricious.
Having reviewed the record, including the record from the petitioner’s direct
appeal, we affirm the judgment of the post-conviction court.
Background
The proof, as set forth in the Supreme Court’s decision, State v. Sutton, 761
S.W.2d 763, 765-66, established that the petitioner and co-defendants Charles A.
Freeman and Thomas A. Street were residents of Guild 6 at the Morgan County Regional
Correctional Facility (“MCRCF”) on the day of the murder. The victim, Carl Estep, was a
resident of Guild 5.
On January 15, 1985, when Estep was murdered, there was no correctional
officer in Guild 5 between 9:30 and 10:00 a.m. During a routine "shakedown" after 10:00
a.m., correctional officers found the body of Estep lying on the lower bunk of his cell.
There were signs of a struggle and blood was observed on the wall, the bed covers, and
on Estep's body. Attempts to revive Estep were unsuccessful. The entire facility was then
"locked down," and all inmates in Guild 5 were interviewed.
Estep, who had been serving a sentence for child molesting, had been
stabbed thirty-eight times in the chest and neck. Most of the wounds were superficial, but
nine were potentially fatal, having penetrated Estep's lungs, vena cava, and carotid artery.
The examining pathologist testified that this latter wound would have caused death in a
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matter of minutes. There were seven defensive wounds on Estep's hands and right arm
and a wound to the back of his head caused by a blow. It was the opinion of the
pathologist that from the size of the wounds, two knives had been used by Estep's
attackers. On the bottom bunk, investigating officers found two homemade knives, which
matched the wounds on Estep's body. A later investigation of the cell uncovered a third
knife hidden under a lamp beside Estep's bed.
The testimony of four inmates, sometimes contradictory and evasive, linked
the petitioner to the murder. The first to testify was Harold Meadows, a resident of Guild
5. He testified that he was sitting in the day room area when he saw the petitioner and
Street enter the guild and go straight to Estep's cell. He stated that each day between 9:30
a.m. and shortly after 10:00 a.m. there was a period of five to ten minutes when no guards
were in Guild 5 due to a duty change. It was during this time on January 15, that he
observed the petitioner and Street enter the guild. When they entered Estep's cell, his
roommate immediately came out and shortly thereafter the volume of the tv or radio
increased, and Meadows heard a scream, and the petitioner and Street came out. When
questioned by correctional officers immediately after the incident, Meadows told them what
he had seen and identified the petitioner and Street from a photographic line-up. Meadows
further testified that on Sunday, January 13, he had seen Estep having a "physical
discussion" with the petitioner and Street, during which the petitioner held a knife to Estep's
throat.
Another resident of Guild 5, Estel Green, testified that he was standing in
front of the door to his cell, right next to Estep's cell, when he saw the petitioner and
another inmate go inside Estep's cell. Green then went into his cell. When he came back
out, he saw the other men in the guild moving toward the back away from Estep's cell.
Green moved away with them and heard Estep "holler out. He said, 'Don't do that; please
don't do that.' and then he hollered louder, he hollered, 'Somebody help me; somebody
please help me.' and that was all I heard." Green was not able to see who left Estep's cell.
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Ralph Edward Scates was a resident of Guild 3, but he worked as a laundry
man in Guild 1. Scates testified that he had a casual conversation with Street while Street
was confined to Guild 1 for investigative purposes after the killing. Street admitted to
Scates that "he [Street] cut him ... he stuck him, cut his throat." Street said that homemade
knives had been used and that he had tried to flush his down the commode in his cell in
Guild 6. Scates stated that the petitioner had told him, "The SB got exactly what he
deserved."
The last inmate to testify for the state was Cary Scoggins. He testified that
Estep was a marijuana dealer at the facility and had sold the defendants some "bad
merchandise" and had refused to refund the defendants' money. He testified that after the
defendants took Estep's watch and some other articles, Estep had threatened to kill the
petitioner. Scoggins, a resident of Guild 6, happened to be in Guild 5 on the morning of
January 15 between 9:30 a.m. and 10:30 a.m. He stated that he saw the petitioner, Street,
and Freeman come into the guild and enter Estep's cell. He looked through the window
in the door of Estep's cell, a vertical window four inches by thirteen inches and saw all
three defendants standing in front of the bunk bed with their backs to the window. He saw
Estep try to get up from the bottom bunk and the petitioner and Freeman pulled knives.
The petitioner started to stab Estep, who screamed. Scoggins stated that the petitioner
"just kept on stabbing" about sixteen times. The three defendants then washed their hands
in the sink. Scoggins then moved away from the door and left the guild before the
defendants did.
In order to contradict Scoggins' testimony, co-defendant Freeman presented
the testimony of Gary Lumbert, Scoggins' cellmate. Lumbert testified that Scoggins was
working with him in the prison library at the time Estep was murdered.
The state recalled James Worthington, the administrative assistant to the
warden at the time of the killing, and he testified that he had investigated the murder. He
stated that Lumbert had told him that he was present in Guild 6 immediately after Estep
4
had been killed, and that he observed the petitioner and Street enter the guild, remove
their clothes, and place their clothes in the laundry. Lumbert also told Worthington that the
petitioner bragged "about stabbing Carl Estep twenty-some times."
On January 15, two garbage bags found outside Guild 8 were brought to
Worthington, one containing trash and the other prison clothing. A telephone pass for
Freeman was found in one pair of the pants. F.B.I. analysis of the debris from the clothing
in the garbage bag revealed a hair consistent with that of the victim on a pair of button-fly
jeans and a hair consistent with that of Freeman on one of the jackets. A forensic
serologist employed by the T.B.I. testified that she was able to identify a human blood stain
matching the victim's blood type on the sleeve of one of the jackets, one of the knives, and
a work shirt. She also found human blood on one of the jackets, a pair of zipper-fly blue
jeans and an elastic bandage. Tests were inconclusive as to whether human blood was
on the other knife.
Based on this proof, the jury found the petitioner guilty of first-degree murder.
At the sentencing hearing, the state presented proof that the petitioner had
previously been convicted of first-degree murder. The defense presented the testimony
of Charles Burchett, the Director of Student Conduct at the University of Tennessee, his
wife, a semi-retired school teacher, and their son, Charles Burchett, Jr., who was a real
estate agent. The Burchetts testified that they had known the petitioner since he was in
high school and that they visited him in prison regularly. The defense also presented the
testimony of two inmates. Eddie O’Donnell, the petitioner’s cellmate in Guild 6, testified
that on January 14, while they were eating in the dining hall, the petitioner asked O’Donnell
to tell him if Estep came toward him. When Estep came in, O’Donnell nodded at the
petitioner, who stood up. Estep then walked the other way. James “Buddy” Williams, also
an inmate, testified that he did not have any conversations with the petitioner about this
matter, despite having previously told defense counsel that he had in fact had
conversations with the petitioner. Williams refused to answer any further questions.
5
The jury sentenced the petitioner to death by electrocution based on its
finding that there were no mitigating circumstances sufficient to outweigh the three
aggravating circumstances: (1) prior conviction of a violent felony, (2) the murder was
heinous, atrocious, or cruel, and (3) the murder was committed while the petitioner was in
a place of lawful confinement. T.C.A. § 39-2-203(i)(2), (5), (8) (repealed 1989).
Standard of Review
In post-conviction proceedings, the petitioner must prove the allegations
contained in his petition by a preponderance of the evidence. Oliphant v. State, 806
S.W.2d 215, 218 (Tenn. Crim. App. 1991). Findings 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 unless the evidence contained in the record preponderates otherwise. Butler v.
State, 789 S.W.2d 898, 899 (Tenn. 1990). This Court may not reweigh or reevaluate the
evidence or substitute its inferences for those drawn by the trial court. Questions
concerning the credibility of witnesses and weight and value to be given their testimony are
for resolution by the trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.
1990).
I. Prosecutorial Misconduct
In his first issue, the petitioner contends that he was denied a fair trial
because the state abused the discovery process, mislead and misdirected the energies of
petitioner’s attorney, and concealed its major witnesses. The petitioner submits that the
post-conviction court erred in finding this issue to be previously determined.
Specifically, the petitioner argues that he was unable to establish his
prosecutorial misconduct claim on direct appeal because he was denied access to material
documents which would have demonstrated an intentional decision by the state to
misdirect defense counsel. Second, the petitioner argues that he was unable to show in
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the prior proceedings how he was prejudiced by the intentional wrongdoing of the state
because his attorney could not challenge his own ineffectiveness without creating a conflict
of interest.
Under the Post-Conviction Procedure Act governing this petition, a petitioner
could raise all constitutional claims except those which had been previously determined,
waived, or barred by the statute of limitations. The statutory definitions under the
applicable Post-Conviction Procedure Act for previous determination and waiver were as
follows:
(a) A ground for relief is “previously determined” if a court of
competent jurisdiction has ruled on the merits after a full and
fair hearing.
(b)(1) A ground for relief is “waived” if the petitioner knowingly
and understandingly failed to present it for determination in any
proceeding before a court of competent jurisdiction in which
the ground could have been presented.
(2) There is a rebuttable presumption that a ground for relief
not raised in any such proceeding which was held was waived.
T.C.A. § 40-30-112 (1990).
In House v. State, 911 S.W.2d 705 (Tenn. 1995), our Supreme Court held
that “a ‘full and fair hearing’ sufficient to support a finding of previous determination occurs
if a petitioner is given the opportunity to present proof and argument.” Id. at 706. The
burden is on the post-conviction petitioner to allege facts to overcome the application of
procedural barriers. Smith v. State, 814 S.W.2d 45, 49 (Tenn. 1991); see also T.C.A. §
40-30-104(10)(1990).
The post-conviction court concluded that the petitioner failed to rebut the
finding that the issue had been previously determined on direct appeal, where our
Supreme Court held:
7
The defendant Sutton next alleges that he was denied the right to a fair trial
because of the conduct of the State in not supplying him sufficient notice of
the witnesses which would be used against him. He argues that by providing
lists of numerous prospective witnesses, ranging from 80 to 47 names, many
of whom were inmates scattered throughout the State correctional system
and most of whom the State, defendant alleges, had no intention of calling,
denied him his right to effective counsel because defense counsel was
unable to interview all these witnesses and investigate the case fully.
Nothing in the record supports this allegation. When defense counsel
pointed out the problems he was having in reaching all the witnesses, the
court granted a continuance.
Sutton, 761 S.W.2d 763, 769.
Despite the petitioner’s claims, a full review of the record does not establish
intentional wrongdoing on the part of the state. Worthington testified that he was
responsible for the prison’s internal investigation into the murder of Estep. On the day of
the murder, Worthington and Clarence Robbins, the investigator for the district attorney
general’s office, conducted intensive interviews of everyone in Guild 5. Worthington was
responsible for transcribing and cataloging all of the statements.
In the course of the investigation, Worthington submitted to the district
attorney general’s office a list of possible witnesses and a summary of each witness’
potential testimony. Worthington kept a notebook which included summaries, statements,
and documents regarding each person who was interviewed. In addition, he kept
miscellaneous files that included rap sheets, different information, institutional file
documents on each of the defendants and some of the witnesses, and notes he had made
during the investigation and interviews.
The list of potential witnesses was typed and sent to the district attorney
general’s office around June 3, 1985. Worthington testified that the entire list was given
to the defense as a good faith effort so the defense would have a complete list of the
inmates who had been interviewed. A shorter list was given in August 1985, and another
was given in September 1985. Worthington kept inmates on the witness list because he
thought that once some of them were released from prison they might be willing to talk.
8
He also believed that the defense attorneys should be given an opportunity to speak with
these inmates because they might tell defense counsel more than they would tell the
prison officials.
Roger Delp, an assistant district attorney general who prosecuted the case,
testified that the long list of potential witnesses was given to defense counsel to ensure
that the trial judge would not refuse to allow a witness to testify because the name had not
been given to the defense. The state was concerned that some inmates who had been in
a position to have information about the homicide but were not talking might be willing to
talk to defense counsel or might decide to talk to the state at a later date. The state was
also trying to protect inmates from potential retaliation.
The petitioner was represented at trial by John Appman. Because the state’s
list of potential witnesses was long and because the inmates were constantly being
transferred to other facilities, Appman spent unnecessary time and trouble investigating
the case. Bruce Fox, appointed counsel for co-defendant Street, confirmed that it was
difficult to prepare for trial because the state’s witness list was so extensive. He and
Appman did most of the preparation for trial, traveling in Appman’s private plane to
interview witnesses who were incarcerated at various correctional facilities across the
state. They were also assisted by Appman’s paralegal.
In order to tell which witnesses the state was going to call and to have an
understanding of the state’s case, Appman believed he needed to review Worthington’s
investigative records. However, even if he had been able to obtain a shorter list of
potential witnesses, Appman testified that he still would have attempted to talk to anyone
who might have benefitted the case. He and Herb Moncier filed a motion with the trial
court in an attempt to get Worthington’s notebook, however, the motion was denied.
Thereafter, they filed a lawsuit in the chancery court of Davidson County seeking to force
Worthington to turn over his investigative records under the Public Records Act. Relief was
denied by the chancery court and by the Supreme Court on appeal. See Appman v.
9
Worthington, 746 S.W.2d 165 (Tenn. 1987).
Without Worthington’s notebook, Appman testified that he was unable to fully
advise the petitioner regarding the strength of the state’s case. Although the petitioner
testified that he would not have accepted the state’s offer of a life sentence because it was
conditional on offers to the co-defendants, Appman believed that the information in
Worthington’s notebook would have assisted him in his attempt to convince the petitioner
to accept the offer. Despite the foreclosure of reviewing Worthington’s notebook, Appman
was able to interview all the inmates who eventually testified at trial on behalf of the state.
He was also able to review each of these witnesses’ statement to Worthington as Jencks
material prior to cross-examination.
A review of the testimony and of Worthington’s notebook does not reveal that
the state intentionally misdirected defense counsel, and this argument fails to rebut the
statutory presumption that this issue has been previously determined.
Next, the petitioner contends that the issue should not be barred as
previously determined because counsel could not have raised his own ineffective
assistance of counsel. However, the issue of whether the state’s actions denied the
petitioner the right to effective counsel was raised and addressed by the Supreme Court.
Sutton, 761 S.W.2d 763, 769. Moreover, the record reflects that Appman took every action
possible to obtain Worthington’s notebook, including the filing of a civil law suit.
Accordingly, even if the issue was not previously determined, the petitioner has failed to
show that counsel’s actions were deficient. See Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975).
II. Regulation of Discovery Process
The petitioner contends that the post-conviction court erred in finding that the
issue of whether the trial court failed to regulate the discovery process was previously
10
determined, waived, or without merit. As to a finding of waiver, the petitioner contends that
it was not raised due to ineffective assistance of counsel and that the material facts
supporting his claim were not available despite efforts to obtain access to the information.
Furthermore, the petitioner contends that if the trial court had at a minimum reviewed
Worthington’s notebook or included it in the record, it would have shown that the state had
in fact prepared a shorter, detailed witness list which set forth the anticipated witnesses at
trial and their anticipated testimony.
As noted in the Supreme Court’s opinion, “[t]he evidence in the record does
not preponderate against the trial court's finding on the motion for new trial that there was
no bad faith on the State's part in responding to the discovery requests, that the defendant
was not damaged by any of the delays in this case, and that under the circumstances all
matters were addressed within a reasonable time.” Sutton, 761 S.W.2d 763, 768.
Accordingly, this issue has been previously determined. See T.C.A. § 40-30-112(a)(1990).
Furthermore, the petitioner cannot succeed on a claim of ineffective assistance of counsel
because the Supreme Court ruled that matters of discovery were handled appropriately.
Thus, the petitioner has not shown prejudice. Strickland v. Washington, 466 U.S. 668,
693, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984).
III. Courtroom Security
Next, the petitioner contends that the post-conviction court erred in
concluding that the issue of excessive security in the courtroom was previously determined,
waived, or without merit. In his post-conviction petition, the petitioner claimed that the state
used the extraordinary courtroom security as a prop, that he was denied a fair trial as a
result of the excessive courtroom security, that the trial court failed to regulate the
excessive courtroom security, and that defense counsel was ineffective in failing to limit the
excessive security, object to its use as a prop, or properly present the issue in the motion
for new trial and on direct appeal.
11
Regarding this issue, Charles E. Jones, now warden at MCRCF, testified that
he was in charge of courtroom security during the petitioner’s trial. According to Jones, the
goal was to provide security during the trial and to ensure that inmates were transported
in a timely manner, however, there was no written plan or order. Uniformed officers armed
with shotguns were stationed at each corner of the courthouse. Two officers with a hand
held metal detector were stationed outside the door to the courtroom. Inside the
courtroom, officers were stationed at each door. Three more officers were stationed in the
front row directly behind the defendants. One officer was positioned to backup the three
officers by the defendants, one was next to the jury, and two were in the balcony. Some
of the officers were in uniform, and all the officers were armed with the exception of the
three officers directly behind the defendants. One street by the courthouse was blocked
off, and the officers used it for parking and unloading inmates.
Judge Eugene Eblen, who presided over the trial, testified that the officers
in the courtroom were not overly conspicuous. Considering that there were three inmates
on trial and that many of the witnesses were also inmates, Judge Eblen believed that the
security was appropriate.
Contrary to this testimony, Fox, counsel for co-defendant Street, testified that
the courthouse was an “armed fortress.” Charles Burchett, who attended the trial and
testified on behalf of the petitioner at the sentencing hearing, testified that he was amazed
at the number of armed officers.
On the general issue of courtroom security, the post-conviction court made
these findings:
Even if the issue had not been previously determined or waived, the proof at
the evidentiary hearing simply did not establish this as a ground for relief.
Obviously courtroom security is necessary when three prison inmates are on
trial. All of the key witnesses were inmates as well. The environment at the
trial, due to all this, was certainly not ideal. Nonetheless, the trial court took
measures to reduce any prejudicial effect. The defendants wore certain
clothes, their hands were free, and measures were taken to hide from the
jury the shackles on their feet. Moreover, Morgan County, with two state
12
prison facilities in 1986, is more likely than other counties to be desensitized
to a possibly coercive atmosphere.
Before introducing the homemade knives into evidence, General Harvey
placed them on the defense table so that defense counsel would have an opportunity to
examine the knives. This was done even though defense counsel had been instructed to
only use felt tip pens, not pencils, so that the defendants could not use the pencils as
weapons in taking hostages. Appman testified that he reacted by jerking away from the
table because he was afraid of becoming a hostage. According to Appman, it was a tense
moment in the courtroom. Being startled, Appman did not make a motion for a mistrial or
raise the issue at that time.
Judge Eblen testified that it is common practice for lawyers to approach
opposing counsel and present an exhibit before it is introduced into evidence. When the
prosecutor placed the homemade knives on the defense table, Judge Eblen saw Appman
jump, and he heard an officer pull a gun, although he did not see any guns drawn.
According to Judge Eblen, the courtroom quickly quieted down, and the jury seemed to get
a “smile” out of the incident. Judge Eblen believed that he told the prosecutor not to do it
again.
The post-conviction court accredited the testimony of Judge Eblen on this
issue:
Moreover, Judge Eblen testified that this was really “not a big event in
Morgan County” and that the “officers were not overly conspicuous.” While
Judge Eblen expressed some concern about the incident wherein an
assistant district attorney general placed several knives at the table occupied
by the defendants and their counsel, John Appman reacted with some
surprise. The record demonstrates, however, that there were curative
instructions. It was Judge Eblen’s opinion that the incident did not affect the
results of the trial. This court accredits that account.
Regarding the placing of knives on defense table, the post-conviction court
properly held that the issue has been previously determined. T.C.A. § 40-30-112(a)
13
(1990). In fact, Jones was called to testify about the courtroom security at the hearing on
the motions for new trial. Jones, who was in charge of courtroom security, testified that
there were ten to fourteen guards in the courtroom, some of whom were in civilian clothes.
While some of the guards had pistols, no one in the courtroom had a shotgun. When the
knives were placed on the table, the officers in the courtroom reached for their guns,
however, no pistols were drawn. On direct appeal, the Supreme Court ruled:
The defendant also alleges prosecutorial misconduct by the Assistant District
Attorney General. A knife, identified by State's witness James Worthington
as a weapon found in Estep's cell after the murder, was placed on the
defense table for inspection by counsel before passing it to the jury. Seeing
the knife within reach of the defendants, a number of the correctional officers
in the courtroom responded by reaching for their weapons. Defendant insists
that the reactions by the guards prejudiced him and deprived him of the
"physical indicia of innocence." After the incident, the court instructed the
State to have defense counsel examine the weapons at the State's table.
The jury knew that the defendants were inmates and it probably came as no
surprise to the jurors that they would be closely watched and guarded. The
record reflects that only one such incident occurred. We do not find that this
incident could have so prejudiced the defendant as to deny him a fair trial.
We find no reversible error.
State v. Sutton, 761 S.W.2d 763, 769.
Furthermore, as held by the post-conviction court, all other claims regarding
excessive security in the courtroom were waived by the petitioner’s failure to raise them
previously. T.C.A. § 40-30-112(b)(1) (1990). Finally, the petitioner has failed to meet his
burden to show ineffective assistance of counsel regarding this issue. As stated earlier,
on appeal from the denial of post-conviction relief, the findings 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 unless the evidence contained in the record preponderates otherwise.
Butler v. State, 789 S.W.2d 898, 899. Questions concerning the credibility of witnesses
and weight and value to be given their testimony are for resolution by the trial court. Black
v. State, 794 S.W.2d 752, 755.
In the present case, the post-conviction court accredited the testimony of
Judge Eblen regarding whether the security was excessive or prejudicial at the petitioner’s
14
trial. Having reviewed the record, we do not find that the evidence preponderates against
this finding, and thus, the petitioner has failed to establish prejudice. Strickland v.
Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067. This issue is without merit.
IV. Ineffective Assistance of Counsel
The petitioner raises several issues regarding the effectiveness of defense
counsel pre-trial, at trial, post-trial, and on direct appeal. When a petitioner seeks post-
conviction relief on the basis of ineffective assistance of counsel, he must first establish
that the services rendered or the advice given was below "the range of competence
demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936. Second,
he must show that the deficiencies "actually had an adverse effect on the defense."
Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). There must
be a reasonable probability that but for counsel’s error, the result of the proceeding would
have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; Best
v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). Should the petitioner fail to
establish either factor, he is not entitled to relief.
(A) Failure to File a Motion to Strike “Lawful Custody” Aggravating Circumstance
The petitioner contends that counsel was ineffective by failing to research,
investigate, and/or file a motion seeking to strike the aggravating circumstance that the
petitioner was in lawful custody at the time of the offense. Despite defense counsel’s self-
defense theory that the victim’s death threats had to be taken seriously because the prison
was so dangerous and there was no place where inmates were safe, counsel failed to
investigate or challenge the state’s use of this aggravating circumstance. The petitioner
further argues that evidence of prison conditions could have been used to mitigate the
circumstances of the crime at both the guilt and sentencing phases.
In denying relief, the post-conviction court held:
15
This ground does not serve as a basis for post-conviction relief. That the
prison was less safe than most other places would not have excused the
murder. There was some proof at trial that the prison had a dangerous
atmosphere, requiring vigilance on the part of the inmates. This court does
not disagree. But that would not have warranted striking this particular
aggravating circumstance. See Tenn. Code Ann. § 39-2-203(i)(8)(1982).
Thus, there is neither deficiency in performance on the part of trial counsel
nor prejudice in result.
We find that the post-conviction court’s findings are supported by the record.
Initially, counsel for the petitioner investigated the conditions at the prison. Every inmate
who testified at the guilt and sentencing phases was asked questions regarding safety and
the meaning of a threat in prison. Moreover, defense counsel presented the testimony of
Carl Crafton, a long-term inmate, who was qualified as an expert on prison life. Crafton
explained the seriousness of a death threat in prison. However, Appman was not aware
that the state of Tennessee had hired Frank Wood in 1985 to perform an evaluation of the
prison system. At the post-conviction hearing, the petitioner presented Wood’s testimony
regarding his findings. As part of his evaluation, Wood visited nine institutions, including
MCRCF.
Based on his inspection, Wood found serious deficiencies in the Tennessee
Department of Correction (“TDOC”), especially regarding overcrowding. Wood found that
the number of inmates was beyond the design capacity of the facilities. Moreover, the
classification systems were nonfunctional. Inmates were not assigned to appropriate
institutions, and exceptions were made constantly. As part of this problem, institutions
were being used to house inmates who were beyond the classification for which the
institution was designed. There was also an unusually high volume of inmate movement
and transfers between institutions. The violence at the prisons was systemic, with a high
frequency of assaults on staff and on other inmates. There was also an extremely high
turnover among uniformed staff.
Wood noted that an unusual number of inmates in the system were
requesting voluntary protective custody. Because of the punitive segregation status and
because an inmate could end up being in protective custody for years, Wood opined that
16
it would take a high level of motivation for an inmate to commit himself to voluntary
segregation as the only option for protecting himself. Such a person might become preyed
upon as a victim personality or as someone who may not be able to handle prison life
without resorting to protective custody.
At MCRCF, Wood found overcrowding and staff shortages. The physical
plant was not designed to keep the classification of inmates that were there. Units were
left unattended at different times during the day. In Wood’s opinion, MCRCF was held
together at the time because of the commitment and hard work of the warden and staff to
maintain a rapport with the inmate population.
In reviewing the petitioner’s files from TDOC, it was Wood’s opinion that the
petitioner had been inappropriately classified based on his history of violent behavior. The
petitioner should have been in a situation where there was adequate staffing, supervision,
control, and accountability for his behavior. In Wood’s opinion, a person serving a life
without parole sentence should not be housed in a medium security facility. While Wood
did not think that the conditions at MCRCF mitigated the petitioner’s actions, he did think
that the system had a responsibility to control inmates like the petitioner and that the state
should hold some culpability for the way the institution was managed. The poor
management put other inmates in danger and also failed to provide the petitioner with the
appropriate level of control.
Appman’s theory at trial was based on reasonable doubt, but that if the
petitioner did commit the homicide, it was self-defense. He testified that if he had received
Wood’s report on prison conditions, he could have shown the jury that the tension in prison
was enormous and that the petitioner’s reaction was normal under the circumstances.
Moreover, he could have shown that the violence was not directed toward the officers,
which would have been important because of the high number of people in Morgan County
who were employed by TDOC.
17
In addition to Wood’s report, Appman did not know about Grubbs v. Bradley,
552 F. Supp. 1052 (M.D. Tenn. 1982), in which the federal court addressed the issue of
prison conditions, including overcrowding and violence, in TDOC. At the post-conviction
hearing, the petitioner presented considerable proof on the conditions in TDOC, however,
in preparing for trial, Appman had not reviewed these materials. He admitted at the
hearing that this information would have assisted in the defense of the petitioner in that it
would have further explained the environment in which the homicide occurred.
While this additional information regarding prison conditions would have
supported Crafton’s testimony, it would not have provided a basis for striking the
aggravating circumstance. The petitioner has not shown that proof of dangerous prison
conditions would warrant a ruling that the murder did not occur while the petitioner was in
lawful custody, and he has failed to show that counsel’s performance was deficient or that
he was prejudiced.
(B) Failure to Prepare for and Present Evidence at the Sentencing Hearing
The petitioner contends that counsel’s failure to conduct any investigation of
the petitioner’s medical, family, social, educational, juvenile, military, institutional, or prior
criminal history, and defense counsel’s decision not to present such evidence at the
sentencing hearing was not an informed decision, was facially deficient, and prejudiced the
petitioner.
In death penalty cases, the sentencer may not be precluded from considering
any aspect of a defendant’s character or record as a basis for a sentence less than death.
Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 (1978)
(plurality opinion); see also Johnson v. Texas, 509 U.S. 350, 361, 113 S. Ct. 2658, 2666,
125 L. Ed. 2d 290 (1993). The United States Supreme Court has held that mitigating
evidence is relevant to sentencing hearings and should be heard. See California v. Brown,
479 U.S. 538, 541, 107 S. Ct. 837, 839, 93 L. Ed. 2d 934 (1987); Eddings v. Oklahoma, 455
18
U.S. 104, 113-15, 102 S. Ct. 869, 876-77, 71 L. Ed. 2d 1 (1982). “Evidence about the
defendant’s background and character is relevant because of the belief . . . that defendants
who commit criminal acts that are attributable to a disadvantaged 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. 1996) (quoting California v. Brown,
479 U.S. 538, 544, 107 S. Ct. at 841).
There is no legal requirement and no established practice that the accused
must offer evidence 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 seen
fit not to offer any evidence at the penalty phase. Id. at 421 (citations omitted).
However, “[a] strategy of silence may be adopted only after a reasonable
investigation for mitigating evidence or a reasonable decision that an investigation would
be fruitless." Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir.1986). Courts have
held counsel's representation beneath professionally competent standards when
sentencing counsel did not conduct enough investigation to formulate an "accurate life
profile" of a defendant. See Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir. 1995).
In Goad v. State, 938 S.W.2d 363, the Supreme Court set forth the following
factors to consider in determining whether the petitioner was prejudiced by counsel’s
deficiencies: (1) the nature and extent of available mitigating proof that was not presented,
(2) whether substantially similar mitigating proof was otherwise presented to the jury, 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 applied in Henley v. State, 960 S.W.2d 572 (Tenn. 1997),
cert. denied, ___ U.S. ___, 119 S. Ct. 82, 142 L. Ed. 2d 64 (1998), where the defendant was
convicted of aggravated arson and two counts of premeditated murder. “At trial Henley
maintained his innocence and attempted to discredit the prosecution’s evidence.” Henley,
19
960 S.W.2d at 574. At the penalty phase, the defense called the defendant’s mother to
the stand. In the presence of the jury, she disrupted her own testimony by announcing that
she wanted “to talk to” defense counsel. A recess was had, followed by the defense
resuming its proof by calling the defendant’s grandmother, without explaining the failure
of the defendant’s mother to return to the stand. The grandmother testified to various
attributes of the defendant, and the defendant himself testified about a financial reversal
that caused him to lose his grandfather’s farm. Id. at 575-76. The jury sentenced the
defendant to death, based upon finding one aggravating factor in each homicide, that each
murder was “‘especially heinous, atrocious, or cruel in that it involved torture or depravity
of mind.’” Id. at 576; see T.C.A. § 39-2-203(I)(5) (repealed 1989). In his post-conviction
proceeding, Henley alleged his counsel failed to investigate and prepare for the sentencing
hearing, including the claims that counsel failed to investigate his mental condition and
request an appropriate evaluation.
Henley presented two expert witnesses at the post-conviction hearing: (1) an
attorney, who testified that trial counsel should have used a psychologist to assist in
determining if mitigating proof might be feasible; and (2) a psychiatrist, who interviewed
Henley and testified that, at the time of the offenses, he suffered from depression and may
have been “‘self-medicating’ by using alcohol and drugs.” Id. at 577. This latter witness
also found that Henley may have had a learning disability which may have been
responsible for his failure at farming which, in turn, caused his depression. Id.
In addressing the prejudice issue first, see Strickland, 466 U.S. 668, 697, 104
S. Ct. 2052, 2069, the Supreme Court found that any failure of counsel to call as witnesses
family members, some of whom testified at the post-conviction hearing about the positive
attributes of the defendant, was not prejudicial. Utilizing the first and second prongs of the
three-prong test provided in Goad, the Court noted that the proposed evidence not only
duplicated but perhaps, due to its nature, would have diminished the poignant testimony
of Henley’s grandmother. Further, regarding the nature of the proposed testimony, the
Court acknowledged the principle of California v. Brown, 479 U.S. 538, 544, 107 S. Ct. 837,
20
841, that a disadvantaged background is often a proper source of mitigating evidence but
expressed concern about the quality of witnesses having a limited relationship with Henley
or having personal knowledge about his drug use at the time of the crimes. At this
juncture, the Court declared that “[a]ppellate courts must consider the quality of the
proposed testimony rather than the quantity of witnesses when determining whether
prejudice has been established.” Henley, 960 S.W.2d 572, 582.
As to the third prong, the Henley court observed that the proof of the
aggravating circumstance was strong. Id. The defendant killed an elderly couple. He shot
them several times and then burned them by setting fire to their house. The Court found
ample support for the single aggravating circumstance that the crime was especially
heinous, atrocious, or cruel, involving torture or depravity of mind. Id.
Like in Henley, this Court has addressed the prejudice issue first, see
Strickland, 466 U.S. 663, 697, 104 S. Ct. 2052, 2069, and we find that the petitioner has
failed to show prejudice. Thus, there is no need to evaluate whether counsel’s
performance was deficient. Id.
At the post-conviction hearing, Appman testified that he presented all the
mitigating proof available to him at the time. In preparing for the sentencing hearing, he
obtained Estep’s prison file and spoke with either Estep’s mother or wife, as well as the
attorney representing them in a victim compensation law suit. He also spoke with Dr. Doug
Young with the York Institute, who had previously been in charge of the educational
programs at Lake County Correctional facility. Based on his review of the petitioner’s
visitor records at the prison, Appman interviewed the Burchett family and had them testify
to show that the petitioner could relate to credible people in a meaningful way. In addition,
Appman presented proof that the victim had been a child molester, and Crafton had
testified at trial that the environment within the prison was different from the free world and
that when a threat was made, an inmate could not move out or call on law enforcement to
protect him.
21
Appman obtained the petitioner’s TDOC records, but he did not attempt to
get school or juvenile records or the transcript of the petitioner’s trial for killing his
grandmother. While Appman might have discussed with the petitioner his military record,
he did not attempt to obtain it. Appman filed a motion requesting the services of a
psychiatrist, but the trial court denied the motion. The trial court offered to have the
petitioner evaluated by the Tennessee Department of Mental Health, however, counsel
declined this invitation. He did not seek funds for a mitigation or sentencing expert.
Under the three factors set forth in Goad, we must first look at the “nature
and extent of the mitigating evidence that was available but not presented.” Goad, 938
S.W.2d 363, 371. At the post-conviction hearing, the petitioner presented testimony of two
friends who knew him in middle school and high school. Both would have been available
and willing to testify at the sentencing hearing. He also presented the testimony of a
deputy at the Hamblen County Jail who indicated that the petitioner probably saved his life
in 1978 when he was trying to break up a fight between two other inmates.
Dr. Gillian Blair, a licensed clinical psychologist, testified on behalf of the
petitioner regarding the existence of factors which might have been presented as mitigating
evidence at the sentencing phase. Blair concluded that the petitioner was raised in an
unstable, often violent and threatening home life where the supervision and structure were
inadequate. He was exposed as a child to intermittent explosive violence from his father,
who was seriously mentally ill and was hospitalized extensively at a psychiatric hospital
between 1969 to 1976. In 1973, there was a restraining order against the father after he
held his mother and the petitioner at gun point and had a standoff with the police. In
contrast, when the petitioner’s father was not being violent, he would be overindulgent and
encourage inappropriate behavior. In 1977, the petitioner’s father died of hypothermia and
exposure. The death certificate indicated that alcohol abuse was a contributing factor in
his death.
From the time of his incarceration at age 18, the threatening environment that
22
the petitioner had endured as a child was present in TDOC. The prison offered little
structure or predictability. The petitioner had to be hyper-vigilant, and this was exacerbated
by the fact that a number of inmates had access to weapons and that there were a number
of assaults in prison.
As a child, the petitioner suffered multiple abandonments and losses.
Specifically, his mother abandoned him before the age of one, he essentially lost his father
to mental illness, and ultimately he suffered the death of his father. Moreover, the
circumstances of his father’s death were never explained to him. The petitioner also
suffered the loss of his grandfather at the age of 7 or 8, and the separation from his
maternal grandparents at the age of 2. He was essentially raised by his paternal
grandmother, who was a school teacher.
The petitioner has an extensive drug history. By the time he was an
adolescent, he was using a wide variety of drugs. The petitioner admitted the he had dealt
drugs extensively as well, to provide a means of obtaining his own drugs and to provide
himself some money. His lack of internal controls was exacerbated by his drug use.
Eventually, the petitioner’s juvenile problems and drug abuse led to him being
sent to Knoxville to live with his aunt and attend high school. While he failed some
classes, he did not fail a grade. He eventually dropped out of high school during the
eleventh grade. In 1978, the petitioner received his GED at a community college. At age
17, the petitioner joined the Navy from November to December of 1978. He received an
honorable discharge, however, the records indicate that he was unable to adjust to military
life. The petitioner was described as being overwhelmed by the training and unable to
adjust to the emotional pressure. According to the records, the petitioner’s attitude toward
authority was respectful. Thereafter, the petitioner was incarcerated at the age of 18 and
has been incarcerated continually since that time.
The petitioner’s medical records were limited. He was shot in the eye at the
23
age of 9. He had several head injuries which lead to a loss of consciousness. One such
incident involved a motorcycle accident when the petitioner was 12. The petitioner also
suffered sporting accidents at age 13 and 15. In addition, the petitioner was shot in the
knee at the age of 16. There is no record of the petitioner having any psychiatric history
or treatment before entering TDOC.
According to Blair, the TDOC records indicated that if kept in a safe and
structured environment, the petitioner is well-adjusted, presents no management problems,
and is not violent. Blair admitted that at the time of the trial, her profession felt that it was
difficult to predict future dangerousness and that the key indicator was a past history of
violence. She further admitted that this factor would not have weighed in favor of the
petitioner.
Blair concluded that the cumulative data, social history, interview, and test
results supported personality traits that would have rendered the petitioner vulnerable to
prevailing conditions in TDOC during the early 1980s. Those conditions included an
unstable, violent, and threatening environment, where supervision and structure were
inadequate to the number of inmates. She did not find any sign of cognitive impairment
or organic process. Nor did Blair find any suggestion of thought disorder or any type of
psychosis.
Blair’s primary diagnosis was that the petitioner has an Axis II personality
disorder. Tension consistent with an underlying anxiety disorder was also evident.
According to Blair, individuals with these profiles tend to be blunt, self-critical, and have
inadequate defense mechanisms. The observed clinical profile was consistent with a
pattern of chronic maladjustment. These individuals tend to be suspicious, alienated, self-
indulgent, and narcissistic, with immature, manipulative, and somewhat aggressive
behaviors. Blair agreed with a previous diagnosis of antisocial personality disorder.
In rebuttal, the state presented the testimony of Dr. Theodore H. Blau, a
24
clinical psychologist from Tampa, Florida. Rather than conduct his own mental tests or
evaluations on the petitioner, Blau based his opinion on the psychological evaluation
performed by Blair, which he described as excellent. Although he admitted that it was
difficult to evaluate someone’s mental status from 11 years earlier, Blau made four basic
conclusions based on his review and evaluation of the petitioner. First, Blau found no
indications that the petitioner, in January 1985, suffered a mental disease or defect which
would cause him to lack an understanding of the wrongfulness of his act or to prevent him
from conforming to the requirements of the law. Second, Blau found no indications that
the petitioner, in January 1985, suffered a mental disease or defect which substantially
affected his intellect or judgment. Third, Blau found no indications that the prison
conditions in January 1985 caused or exacerbated a mental disease or defect in the
petitioner. Finally, Blau found nothing in the record or in the research reviewed to suggest
that prison conditions gave the petitioner no alternative other than to protect himself with
a “preemptive strike” by murdering the victim.
Finally, the petitioner testified on his own behalf at the hearing. He wanted
to testify at the trial and at the sentencing hearing, however, Appman convinced him that
testifying would not be in his best interest based on his past convictions. In addition to the
information given by Blair about his personal history, the petitioner testified at the hearing
that he loved his father, although his father’s mental illness made him unreliable at times.
His father would sometimes make the petitioner believe that his birth was a factor in his
parents’ divorce. In attempting to get his father’s attention, the petitioner tried to excel in
sports, however, his father did not attend many sporting events. When his father would
return home from the psychiatric hospital, the petitioner would see an improvement.
However, soon the pattern of behavior would repeat itself, and his father would return to
the hospital. Because of his father’s inconsistent presence in his life, the petitioner felt
insecure.
The petitioner’s paternal grandmother was the only stable individual in his life.
He knew that his grandmother would provide for him. When he was young, the petitioner
25
felt like a burden to his grandmother. She did not display emotion or physical affection,
and he felt unloved. As a teenager, the petitioner had no supervision.
At the age of 15, the petitioner was deeply impacted by the death of his
father. All hope that his father would become well and share a normal relationship with him
was taken away. His grandmother gave him a car at the age of 16, and this increased his
access to drugs and to people with similar interests. The petitioner turned heavily to drugs
and alcohol to deal with the hurt over his father’s death, and he lost interest in school and
sports. His drug use became heavier, and he started selling drugs. Drug dealing
dominated his life and pulled him away from his old friends. By the time he was 18, the
petitioner had a cocaine habit. In the Fall of 1979, the petitioner moved back to Morristown
to live with his grandmother. He admitted that during this time, he was doing more drugs
than any other time in his life.
At the post-conviction hearing, the petitioner admitted that he killed his
grandmother and that he had lied about it at the trial. At the time, lying made it easier to
accept his grandmother’s death and his involvement. Moreover, he had not wanted to
accept punishment. When interviewed by Blair, the petitioner lied about killing his
grandmother.
As to the circumstances of Estep’s murder, the petitioner testified that he and
Freeman bought a $50 bag of marijuana from Estep. The marijuana was low quality, so
the petitioner took it back and demanded his money. Estep, who was insulting, would not
return the money. At a later time, Freeman and the petitioner went to Estep’s room to
demand the money. The petitioner threw the marijuana on Estep’s bed and asked for the
money. There was a fight, and the petitioner took Estep’s watch, saying that he would get
it back when he gave them the $50. Later that day, the petitioner received word that Estep
was intending to kill him and was making open threats. While the petitioner sent Estep
several messages saying that he wanted to drop the matter, it was to no avail. In order to
protect himself, the petitioner obtained a knife. In the dining hall, the petitioner saw that
26
Estep had a knife in his hands under his dinner tray. The petitioner stood up and Estep
walked to the opposite side of the room. This incident lead the petitioner to believe that
Estep was serious about killing him, however, he did not check himself into protective
custody because he would have lost his privileges and it would have given him a reputation
as someone who could not handle his own problems.
On the day of the murder, the petitioner and Freeman entered Guild 5 as
soon as the officer left. The petitioner testified that Street was not involved. Only two or
three inmates were sitting at a table in the back of the guild. The petitioner went into
Estep’s room, and Freeman kept watch outside the cell. The petitioner had placed a
magazine underneath his shirt with an ace bandage wrapped around it as body armor, and
his knife was in his waistband. The petitioner made one last attempt at making peace, but
Estep threw coffee in his face. After that, there was a struggle. When the petitioner was
able to free himself, he got out the knife and began stabbing Estep. Eventually, the
petitioner called Freeman for help. Freeman came into the cell and helped the petitioner
stab Estep. When Estep finally quit struggling, the petitioner washed the knives in the toilet
and put them under the bed. He then washed his face, and the two left. The petitioner
went to his room, took off his clothes, and placed them in a garbage bag, which he placed
near the front door for pick up. He then took a shower to wash off the blood. The
petitioner claimed that he killed Estep in self defense.
In reviewing the “quality of the proposed testimony,” see Henley, 960 S.W.2d
572, 582, it would have been proper proof at a sentencing hearing. As in Henley, however,
the evidence does not reveal a “disadvantaged background,” nor does it suggest
“emotional and mental problems [that make the defendant] less culpable than defendants
who have no such excuse.” See Brown, 479 U.S. at 544, 107 S. Ct. at 841. As noted
above, the asserted mitigating factor in Goad was a recognized mental illness, whereas
in the present case, the clinical psychologist diagnosed the petitioner with a personality
disorder. See State v. Alvin Robinson, Jr., No. 02C01-9608-CR-00280, slip op. at 9 (Tenn.
Crim. App., filed at Jackson, Dec. 3, 1997) (For purposes of defeating premeditation and
27
reducing first-degree murder to a lesser grade, “[t]estimony that a defendant suffers from
a personality disorder, rather than a mental disease or defect, fails to establish diminished
capacity.”), remanded on other grounds, (Tenn. Nov. 9, 1998); see also Strickland, 466
U.S. 668, 700, 104 S. Ct. 2052, 2071 (“considerable emotional stress that did not rise to the
level of extreme disturbance” not sufficient in the face of strong aggravating factors to
demonstrate a probability that the use of the evidence would have changed the outcome).
Indeed, the proof at the post-conviction hearing showed little positive or
redeeming evidence, with the exception of the deputy with the Hamblen County Sheriff’s
Department who testified that the petitioner had probably saved his life. See Groseclose
v. Bell, 130 F.3d 1161, 1170-71 (6th Cir. 1997)(At capital sentencing hearing, counsel
failed to use proof that defendant had no criminal record, was active in church, had a
positive record of military service, and had plethora of family members willing to testify on
his behalf), cert. denied, ___ U.S. ___, 118 S. Ct. 1826, 140 L. Ed. 2d 962 (1998).
Moreover, some of the proposed testimony would have been damaging to
the defense. Specifically, by delving into the petitioner’s background, defense counsel
would have necessarily had to consider the daunting prospect that such proposed
evidence would have invited cross-examination or rebuttal to show the circumstances
surrounding the two murders committed in North Carolina and the murder of his
grandmother. The petitioner’s grandmother, who was a school teacher, had adopted and
raised the petitioner, provided for his material needs, and protected him from his father’s
psychotic outbursts of violence. It was when the grandmother discovered the prior murders
that the petitioner beat her to death. See Rickman v. Bell, 131 F.3d 1150, 1157 (6th Cir.
1997) (finding deficient counsel’s performance where he “succeeded in creating a
loathsome image for Rickman -- one that would make a juror feel compelled to rid the world
of him”).
As to the second factor offered in Goad, whether evidence similar to the
proposed evidence had already been heard by the jury, Appman presented proof of the
28
prison conditions throughout the trial and the sentencing hearing. Also, proof of the
petitioner having a relationship with normal, law-abiding citizens was shown through the
testimony of the Burchetts. However, no proof regarding the petitioner’s personal and
family background or history was presented at the sentencing hearing. Again, as
previously stated, such proof would have potentially opened the door to quite damaging
testimony.
The third Goad factor, the competing strength of the aggravating factors,
further illustrates that any deficient performance was not prejudicial. See Henley, 960
S.W.2d 572, 582. Here, the jury found three aggravating circumstances which were
supported by the proof. Specifically, the jury found that the petitioner had a prior conviction
for a felony involving violence, T.C.A. § 39-2-203(I)(2) (repealed 1989), which is an
aggravating circumstance that is “more qualitatively persuasive and objectively reliable than
others.” State v. Howell, 868 S.W.2d 238, 261 (Tenn. 1993). In the present case, the
state chose to only present proof of one of the petitioner’s three prior murder convictions
to support this aggravating circumstance. Moreover, the other two aggravating
circumstances, the murder was committed while the petitioner was in lawful custody and
the murder was heinous, atrocious, or cruel, T.C.A. § 39-2-203(i)(5) and (8) (repealed
1989), are supported by the proof. See State v. Sutton, 761 S.W.2d 763, 767.
Based on the application of the factors set forth in Goad, the Court finds that
the petitioner has failed to demonstrate prejudicial ineffectiveness of counsel in preparing
for and conducting further mitigation defense at the sentencing hearing.
© Failure to Support Motion for Psychological Evaluation
The petitioner argues that counsel’s failure to support his motion for a
psychological evaluation, to pursue the psychological evaluation, or to present evidence
at sentencing relating to an evaluation were all facially deficient actions that prejudiced him.
29
Again, we find that the post-conviction court properly denied relief on this
issue. As pointed out by the post-conviction court, the proof showed that the petitioner
refused to assert “mental disease or defect or any diminished capacity as either a defense
or in mitigation of the crime or the punishment.” The petitioner testified at the post-
conviction hearing that he told Appman he did not want to pursue a mental defense.
Moreover, the testimony of both clinical psychologists confirmed that the petitioner was not
suffering from a mental disease or defect at the time of the offense or the trial. Further, as
pointed out by the post-conviction court, if a psychiatrist or clinical psychologist had
testified, there would have been a distinct probability that the expert would have been
cross-examined about the details of the petitioner’s prior episodes of violence, consisting
of at least three prior homicides, including the murder of his grandmother. Counsel was
given the opportunity to have his client evaluated by the state facility, however, he declined
this invitation because of fear that the state would use the unfavorable information
regarding the petitioner’s past. Based on these facts, we cannot find that the petitioner
was prejudiced by counsel’s failure to pursue a psychological evaluation. Strickland v.
Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067.
(D) Opening and Closing Argument at the Sentencing Hearing
The petitioner contends that counsel’s failure to prepare or present an
opening argument at sentencing, or to prepare and present a coherent closing argument
at sentencing on why the petitioner should not be sentenced to death was prejudicial. The
petitioner contends that if counsel had done the necessary investigation, preparation, and
presentation of a coherent mitigation case, he would have been able to present an opening
argument and a coherent closing argument. Initially, this Court notes that a review of the
record reveals that defense counsel did in fact present an opening statement at the
sentencing hearing.
Regarding counsel’s opening argument at the sentencing hearing, the post-
conviction court held:
30
The petitioner suggests that the opening statement, consisting of only two
pages, was insufficient and he speculates that a more adequate statement
may have produced a different result. There is simply inadequate proof of
that proposition. By this time, the jury had heard a great deal of evidence
about the crime. The defense theory was evident. The petitioner’s social
history and criminal record, in only 18 years outside of incarceration, was
atrocious. There were some very favorable character witnesses for the
petitioner. It was a reasonable tactic to limit the damaging effect of the
unfavorable circumstances. Much of the favorable evidence today, as shown
in the evidentiary hearing, shows the petitioner has matured since the time
of trial.
As to the quality of the closing argument at sentencing, the post-conviction
court held:
The petitioner makes this claim with the view that his trial counsel could have
made a more cogent, compelling argument had he conducted more legal
and factual research. The evidentiary hearing did not, however, produce
evidence that supports that claim. There is no indication that the result
would have been different. Simply too much emphasis has been placed
upon trial counsel’s role in the sentencing hearing. The problem for the
petitioner in this stage of the trial was his prior criminal record which included
three prior murder convictions in addition to that of Carl Estep, and
confessions for two other, unresolved claims of murder. Even with additional
expert and mitigating witnesses, the petitioner has failed to show what could
have been said by his counsel to the jury that might have caused a different
sentence.
The Court finds that the evidence does not preponderate against the post-
conviction court’s findings on this claim. See Butler v. State, 789 S.W.2d 898, 899.
(E) Absence of Co-Counsel
The petitioner contends that counsel was ineffective by failing to request the
appointment of co-counsel. He points to the extraordinary burdens imposed on counsel
during the pre-trial discovery process and the fact that counsel virtually conducted no
factual or legal investigation of possible mitigation.
At the post-conviction hearing, Appman stated that although the trial court
offered to appoint co-counsel, he deliberately refused the offer. A paralegal with his office
did extensive investigation on this case. Appman also testified that he worked with the
31
attorneys representing the co-defendants. In denying relief on this claim, the post-
conviction court held:
The petitioner had experienced trial counsel who demonstrated a dogged
work ethic in the preparations for this trial. That each of the codefendants
had two lawyers, all of whom cooperated with the petitioner’s counsel, is
further evidence that the petitioner was not prejudiced in any way. All
testimony suggested the efforts of trial counsel for the petitioner commanded
the respect of his colleagues, who looked upon him for guidance and
leadership.
The petitioner has failed to show that counsel was ineffective for failing to
request co-counsel or that he was prejudiced by that decision. At the time of the trial,
Appman had practiced law for several years, trying his first major murder case more than
10 years prior to the petitioner’s trial. Appman had also tried several cases in Morgan
County and was familiar with the area. In addition, Appman was assisted by his paralegal,
and he worked with the attorneys representing the co-defendants. Judge Eblen, who
presided over the trial, testified that Appman did not seem hindered by the lack of co-
counsel, nor did his defense strategy appear disjointed during the course of the trial.
Accordingly, we find that the evidence does not preponderate against the trial court’s
finding on this issue. See Butler v. State, 789 S.W.2d 898, 899.
(F) Failure to Object to Jury Instructions
The petitioner contends that counsel’s failure to research, object to, file a new
trial motion on, or raise on appeal, a number of improper instructions constituted facially
deficient performance that was prejudicial.
First, the petitioner contends that defense counsel failed to research and to
object at trial, post-trial, and on appeal to the court’s preliminary instruction to the effect
that “The law with regard to First Degree murder in the State of Tennessee says that those
persons convicted of that offense shall receive the death penalty or, if the jury decides that
it is appropriate, then the jury will fix a life sentence.”
32
Initially, the Court notes that no such instruction is found at the citation to the
record included in the petitioner’s brief. See Rule 10(b), Tennessee Court of Criminal
Appeals Rules. Regardless, the argument that these jury instructions shift the burden of
proof to the defendant to show that a life sentence should be imposed has been rejected
by our Supreme Court. See State v. Van Tran, 864 S.W.2d 465, 478 (Tenn. 1993); State
v. Bane, 853 S.W.2d 483, 488 (Tenn. 1993). Accordingly, counsel cannot be held deficient
for failing to raise the issue.
Next, the petitioner contends that defense counsel failed to research and to
object at trial, post-trial, and on appeal to the repeated references in the charge at
sentencing and the sentencing verdict form to the requirements of unanimity.
Again, arguments regarding these jury instructions have been repeatedly
rejected by our Supreme Court. See State v. Brimmer, 876 S.W.2d 75, 87; State v. Smith,
857 S.W.2d 1, 22-23 (Tenn. 1993); State v. Barber, 753 S.W.2d 659, 670-71 (Tenn. 1988).
Thus, counsel was not ineffective by failing to object.
Next, the petitioner contends that defense counsel failed to research and to
object at sentencing, post-trial, and on appeal to allowing the aggravating circumstance
that the petitioner was in custody at the time of the offense to go to the jury when the trial
court did not charge the jury on this aggravating circumstance.
A review of the record reflects that the trial court instructed the jury to
consider whether “the murder was committed by the Defendants while they were in lawful
custody or in a place of lawful confinement or during their escape from lawful custody or
from a place of lawful confinement.” Accordingly, the jury was properly instructed, and
counsel had no reason to object to an uninstructed jury.
Next, the petitioner contends that defense counsel was deficient because he
failed to research and to object pre-trial, post-trial, and on appeal to the ambiguity of the
33
jury instruction on the heinous, atrocious, and cruel aggravating circumstance.
On this issue, despite our Supreme Court’s conclusions to the contrary, the
post-conviction court acknowledged that the Sixth Circuit Court of Appeals has held that
the “especially heinous” instruction as well as the term “depravity of mind” does not meet
constitutional safeguards. See Houston v. Dutton, 50 F.3d 381 (6th Cir.), cert. denied, 516
U.S. 905, 116 S. Ct. 272, 133 L. Ed. 2d 193 (1995). However, the post-conviction court went
on to perform a harmless error analysis pursuant to State v. Howell, 868 S.W.2d 238, and
concluded that application of the heinous, atrocious, or cruel aggravating circumstance was
harmless beyond any reasonable doubt.
In State v. Williams, 690 S.W.2d 517 (Tenn. 1985), our Supreme Court
reversed a sentence of death and remanded for a new sentencing hearing after finding
"that the court did not instruct the jury concerning the legal significance of the words
'heinous,' 'atrocious,' 'cruel,' 'torture,' or 'depravity of mind' as those terms are used in the
aggravating circumstance defined in T.C.A. § 39-2-203(i)(5)." Id. at 532. The Court found
the statute to be constitutional "so long as the abstract terms employed therein are
construed and interpreted as we have done in this opinion and other opinions of this
Court." Id. at 533. Jury instructions on the definitions are necessary to preclude "a
basically uninstructed jury" that "cannot lawfully impose the death penalty," Id. (citing
Godfrey v. Georgia, 446 U.S. 420, 429, 100 S. Ct. 1759, 1765, 64 L. Ed. 2d 398 (1980)). A
review of the jury instructions given at the petitioner’s trial reflects that the jury was properly
instructed on the necessary definitions.
Whereas, in Houston, the trial court did not instruct the jury on the definitions
of any of the terms set forth in the heinous, atrocious, or cruel aggravating circumstance.
50 F.3d 381, 387. In Rickman v. Dutton, 854 F. Supp. 1305, 1309-10 (M.D. Tenn. 1994),
the trial court defined the terms "heinous," "atrocious," and "cruel" for the jury but did not
define the terms "torture" or "depravity of mind." 854 F. Supp. 1305, 1309-10. In reviewing
the instruction, the district court held that the "especially heinous" instruction, even as
34
limited by the definition of heinous as "extremely wicked or shockingly evil," was
unconstitutionally vague. Id. at 1310. The district court also held that the instruction was
vague despite the inclusion of the term "depravity of mind," which it also found to be
unconstitutionally vague. Id. In contrast, the trial court in the present case instructed the
jury on all the definitions required under Williams, and counsel’s performance was not
deficient in failing to raise this issue.
Finally, the petitioner contends that defense counsel failed to research and
investigate, and to prepare proposed instructions at the guilt and sentencing phases based
on the federal findings and admitted conclusions of the state’s own experts on factual
issues bearing directly on the petitioner’s assertion of self-defense, on statutory mitigating
circumstances, and on non-statutory mitigating circumstances.
As noted by the post-conviction court, a more extensive case could have
been presented, however, this is not the standard in reviewing a claim of ineffective
assistance of counsel. Previously in this opinion, the Court found that the petitioner had
not met his burden of proving ineffective assistance based on counsel’s failure to present
proof of prior federal proceedings on the issue of prison conditions. The same holds true
for counsel’s failure to request these jury instructions. This issue is without merit.
(G) Failure to Object to Prosecutorial Misconduct
The petitioner raises several claims that counsel was ineffective by failing to
object to misconduct by the prosecution. The post-conviction court held that the petitioner
failed to show any misconduct, and therefore, his claim of ineffective assistance was held
to be without merit. While in some instances, the arguments made by the prosecution
were improper, we find that the petitioner has failed to show that he was prejudiced by
counsel’s failure to object to these remarks.
First, the petitioner submits that defense counsel failed to investigate or
35
research, or to object at trial, post-trial, or on appeal to the prosecution’s repeated
misstatements in voir dire that the conditions at MCRCF had no bearing on how the law
should be applied. While the petitioner cites to the record for the specific instances
complained of, he has failed to cite to any authority supporting relief on this issue, and
therefore, the issue is deemed waived. See Rule 10, Tennessee Court of Criminal
Appeals Rules.
Next, the petitioner contends that defense counsel failed to research or to
object at trial, post-trial, or on appeal to the prosecution’s statements about Crafton’s
credibility, not only because such practice was improper generally, but because the
prosecution’s argument was misleading to the extent that it implied that inmate Crafton’s
testimony about the dangerous conditions in TDOC was untrue. Specifically, the petitioner
complains of two comments made by the prosecutor during closing argument at the guilt
phase: “[Crafton] thinks he is a cut above the other prisoners, that he is a man of
character, a man of principle a man who wants to live decently and rightly” and “[a]re you
going to buy the goods he is trying to sell to you?”
A prosecutor's argument must be supported by evidence introduced at trial
and the reasonable inferences to be drawn from that evidence. State v. Beasley, 536
S.W.2d 328, 330 (Tenn.1976). Moreover, a lawyer's personal opinion as to the credibility
of witnesses should not be injected into the closing argument. Id. While a prosecutor is
an advocate, entitled to pursue his role with thoroughness and vigor, he must also act as
the representative of a sovereignty who has an obligation to govern impartially. Judge v.
State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). Therefore, "improper suggestions,
insinuations, and, especially, assertions of personal knowledge are apt to carry much
weight against the accused when they should properly carry none." Berger v. United
States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 2d 1314 (1935).
In order to determine whether any improper conduct was prejudicial, this
Court has set forth five factors to consider:
36
(1) the conduct complained of viewed in the context and in light of the facts
and circumstances of the case, (2) any curative measures undertaken by the
court and the prosecution, (3) the intent of the prosecutor in making the
improper statement, (4) the cumulative effect of the improper conduct and
any other errors in the record, and (5) the relative strength or weakness of
the case.
Judge v. State, 539 S.W.2d 340, 344.
In the present case, the prosecuting attorney's remarks about Crafton were
supported by the record. Crafton testified during cross-examination that he had never met
another inmate with his principles or character. As to the prosecutor’s question to the jury
whether it was going to “buy the goods he is trying to sell you,” the state also made clear
that it was the jury’s responsibility to judge the credibility of witnesses:
[Crafton] was here to give his viewpoints and his expert opinion on
prison life. The first thing I would like you to consider is was he credible to
you? Listen carefully when the Judge charges as to how to determine
someone’s credibility and the things that you are entitled to consider, such
as respectability, possible bias, whether they really know what they are
talking about in the first place.
Furthermore, the jury was charged by the trial court regarding the weight and credibility as
to all witnesses. Even if the closing remarks of the prosecutor were improper, which we
do not find, we find that the petitioner has failed to demonstrate resulting prejudice.
In a similar complaint, the petitioner contends that defense counsel failed to
object at trial, post-trial, or on appeal to the prosecution’s argument “Are you willing for the
citizens of Morgan County to accept the kind of prison system that [Crafton] seems to think
you ought to have,” implying that the petitioner and Crafton were responsible for the
system-wide violence. While the prosecutor’s argument was not supported by the proof,
in that Crafton testified as to his impressions of actual prison conditions and not what
prison conditions should be, the petitioner has failed to show that this argument was
prejudicial. See Judge v. State, 539 S.W.2d 340, 344.
37
Next, the petitioner contends that defense counsel failed to object at trial,
post-trial, or on appeal to the prosecution’s argument that the defendants must be guilty
because they were the persons whom Worthington immediately placed in administrative
segregation. Specifically, the prosecutor argued to the jury:
Now, use your common sense here for a moment. Who was locked
up immediately after this body was found and the very first information
received? They are sitting right over there. Do you think Mr. Worthington
said, “Oh, let’s see, we got a dead man here, lock up Street, Sutton and
Freeman.” Do any of you all believe that?
This argument was clearly inappropriate. A prosecutor should not imply that
a defendant is guilty because he is the one who was arrested. See State v. Hicks, 618
S.W.2d 510, 516 (Tenn. Crim. App. 1981) (Improper for prosecutor to argue that because
grand jury charged defendant, he must be presumed guilty). See also, United States v.
Bess, 593 F.2d 749, 753-54 (6th Cir. 1979) (Improper for prosecutor to suggest that
defendant is guilty because he is being prosecuted or has been indicted). However, after
reviewing this comment in light of the record, we do not find that it affected the verdict.
See Judge v. State, 539 S.W .2d 340, 344. Therefore, the petitioner has not shown
prejudice due to counsel’s failure to object.
Next, the petitioner contends that defense counsel failed to object at trial,
post-trial, or on appeal to the prosecution’s argument that “I have not heard one word of
Nick Sutton or Thomas Street ever being touched by Carl Estep. I heard a lot of
suggestion, but that is all it has been.” The petitioner contends that this argument
constituted an impermissible comment on his failure to testify. We disagree. The
argument did not comment on the petitioner’s failure to testify. It was merely a comment
on the proof. There was testimony regarding possible threats made by the victim, but there
was no proof of the victim physically attacking or hurting the petitioner. This argument
does not constitute misconduct, State v. Beasley, 536 S.W.2d 328, 330, and therefore,
counsel was not ineffective by failing to object.
38
Next, the petitioner contends that defense counsel should have objected at
trial, post-trial, or on appeal to the prosecution’s arguments regarding future
dangerousness. Specifically, the petitioner argues that an objection should have been
made to the following arguments made by the prosecution: “What are you going to do to
Nicholas Sutton, Give him a life sentence? Will that prevent there being another Carl
Estep?,” “Society has certain rights and the State simply asks that you exercise society’s
right to self-defense. These men are already locked up. Mr. Nicholas Sutton is already
serving a life sentence,” “[Sutton] was conditioned on the street to kill people. Ladies and
gentlemen, we suggest to you that persons who are armed robbers and first degree
murderers are already conditioned to kill people,” and “When we get to the point that we
have done everything possible to protect ourselves and there is nothing else we can
reasonably do that would protect ourselves from people like Nicholas Todd Sutton...then
we have the right of self-defense and this is where capital punishment comes in.”
A capital sentencing jury is not precluded from consideration of the future
dangerousness of a particular defendant where such is a relevant factor under a state's
capital sentencing law. See Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929
(1976). Generally, however, our Courts have held that the issue of specific or general
deterrence should be avoided by the prosecution in closing argument at a capital
sentencing hearing. See State v. Bates, 804 S.W.2d 868, 881-82 (Tenn. 1991); State v.
Irick, 762 S.W.2d 121, 131 (Tenn.1988). Specifically, the deterrence argument is usually
irrelevant to the aggravating circumstances listed in Tennessee's statute. State v. Bates,
804 S.W.2d at 882. Thus, "unless relevant to some theory raised by the State[']s proof,
or the defense, it interjects an element into the jury's considerations not provided for by the
law." Id. In reviewing the propriety of argument in a capital sentencing proceeding, the
reviewing court must determine whether the prosecutor's comments affected the
sentencing decision. State v. Irick, 762 S.W.2d 121, 131. "If the Court cannot say the
comments had no effect on the sentencing, then the jury's decision does not meet the
standard of reliability required by the Eighth Amendment." Id. (citing Caldwell v. Mississippi,
472 U.S. 320, 105 S. Ct. 2633, 2646, 86 L. Ed. 2d 231 (1985)).
39
While these comments by the prosecution were obviously inappropriate,
based on a review of the entire record, we do not find that the jury’s decision was affected.
Accordingly, the petitioner has failed to show prejudice based on counsel’s failure to object.
Finally, the petitioner contends that defense counsel failed to move to strike
or to dismiss the death notice because given the state’s longstanding indifference to
violence in TDOC and its causes, given the 1985 findings of Mr. Wood, and given the
undisputed fact that the victim had repeatedly threatened the petitioner and refused offers
of peace, the petitioner submits that a death notice in this case violated the due process
and the cruel and unusual punishment guarantees of the United States and Tennessee
constitutions. The underlying issue regarding prison conditions has been addressed in this
opinion, and we do not find that counsel was ineffective for failing to move to strike or to
dismiss the death notice.
(H) Failure to Raise Issues on Direct Appeal
The petitioner contends that defense counsel was ineffective on appeal
because he failed to research the law, investigate the facts, perfect the record, and raise
important issues on appeal. He points to each of the issues raised in his brief and in the
amended post-conviction petition, and as to each fact and legal argument raised. Because
we have held that the petitioner’s claims are without merit, we find that his claim of
ineffective assistance based on counsel’s failure to raise these issues on direct appeal is
without merit.
(I) Cumulative Effect
Finally, the petitioner contends that the cumulative effect of counsel’s
repeated, deficient failures rendered his trial and sentencing fundamentally unfair. Based
on our review of the issues raised regarding ineffective assistance of counsel, we reject the
petitioner’s contention that the cumulative effect of any errors found would require reversal.
40
V. False Testimony and Misleading Argument
Regarding Conditions at MCRCF
The petitioner contends that during the trial, the state falsely portrayed inmate
safety and security at MCRCF. On this issue, the post-conviction court held:
The petitioner has failed to meet his burden of proof. There is insufficient
evidence to establish that the state misrepresented the level of safety and
security for inmates at the Morgan County Regional Correctional Facility at
the time of the offense. There is no indication that the witness, James
Worthington, inappropriately misled the petitioner or his counsel in this
regard. Moreover, the petitioner was in a position to have known of these
circumstances, divulge them to his counsel, and supply possible witnesses
in support of his claims. For example, the petitioner presented a witness at
trial, Carl Crafton, who testified at length about prison life and the conditions
that existed in the Department of Corrections at the time of this offense.
At trial, Worthington testified regarding his perceptions of the prison
environment at MCRCF. Proof that Worthington was aware of Wood’s report does not
make his testimony regarding his own perceptions of the prison conditions false. Cf.
Brotherton v. State, 477 S.W.2d 522, 523-24 (Tenn. Crim. App. 1971)(doctor’s opinion
testimony regarding whether defendant appeared sober is not made out to be perjury by
results of blood test reflecting alcohol content of .014 in defendant's blood).
VI. False Testimony Regarding Prior Statement of Inmate Lumbert
The petitioner contends that a handwritten memo regarding inmate Gary
Lumbert’s statement taken by Worthington was not included in the state’s files and was
only produced a few days prior to the post-conviction hearing. The petitioner submits that
the statement was manufactured, that it constituted false testimony, and that the testimony
was material to the proceedings. The petitioner further contends that the post-conviction
court erred by failing to address this issue.
While it does not appear that the post-conviction court addressed this specific
issue, we find that it is without merit. Worthington’s notebook contained notes from all the
41
interviews conducted during the investigation of the murder, however, a memo regarding
an interview of Lumbert on March 13, 1985, was not included in the notebook, nor was
Lumbert’s name included on the lists provided to defense counsel. Lumbert eventually
testified at trial on behalf of co-defendant Street. Before the post-conviction hearing, the
memo regarding the interview with Lumbert was found in Worthington’s miscellaneous file.
Worthington testified that the statement was not in his notebook because it had been
misplaced.
Included in the state’s file were notes written by General Harvey during
Lumbert’s testimony at trial. According to General Harvey, Worthington was telling the
prosecutors that Lumbert had given different answers during his interview that were
contrary to his testimony. General Harvey took notes so they could look into the matter.
The notes indicated that Lumbert had told W orthington that Freeman and Street were
bragging about the murder, however, the memo regarding an interview of Lumbert
indicated that Lumbert had stated that the petitioner and Street were the ones bragging
about the murder. General Harvey did not know if he had misinterpreted what Worthington
was saying or if Worthington had misspoken at the time.
A review of the trial transcript also refutes the petitioner’s claim. When
Worthington was cross-examined by defense counsel, he indicated that inmate Lumbert’s
statement had been recorded and the trial court ordered the state to produce that
statement for the purposes of cross-examination. Accordingly, defense counsel was given
an opportunity to review the statement at the time of the trial. This supports a finding that
the statement was available and reviewed at the time of trial and was not falsely
manufactured for purposes of the post-conviction hearing.
VII. Brady and Giglio Claims
The petitioner contends that the post-conviction court erred in finding that he
had failed to establish claims under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, and
42
Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763. Specifically, the petitioner submits that
the proof showed that prior to trial, the state was in possession of inconsistent statements
of the four inmate witnesses who testified for the state and the statements of those four
inmates that conflicted directly. The petitioner further submits that the proof showed that
the state was aware of the findings in Wood’s report on MCRCF, that the information was
not provided to defense counsel, and that Worthington’s testimony at trial directly conflicted
with Wood’s findings and conclusions.
On the petitioner’s Brady claims, the post-conviction court held that the
petitioner failed to rebut the statutory presumption of waiver and, in the alternative, failed
to meet his burden of proof to establish that the state violated any of the discovery
guidelines which would qualify him for relief. As to the petitioner’s Giglio claim, the post-
conviction court held that he “failed to meet his burden of proof to establish any violation
of the Giglio rule. The proof simply does not establish that the state made any promises
of immunity or leniency to the witnesses in exchange for testimony. There was no
evidence that the prosecution withheld any documents or information of any kind that
would tend to impeach the credibility of the state’s witnesses.”
In Brady v. Maryland, the United States Supreme Court held that any
"suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution." 373 U.S. 83, 87, 83 S. Ct. 1194, 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). In Giglio v. United States, 405 U.S. 150, 154-55, 92 S. Ct. 763, 766, the
Supreme Court held that both exculpatory and impeachment evidence fall under the Brady
rule. See also, United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87
L. Ed. 2d 481 (1985).
Before an accused is entitled to relief under this theory, he must establish
43
several prerequisites: (a) the prosecution must have suppressed the evidence; (b) the
evidence suppressed must have been favorable to the accused; and (c) the evidence must
have been material. See United States v. Bagley, 473 U.S. at 674-75, 105 S. Ct. at
3379-80; Brady v. Maryland, 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). Evidence is
considered material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the results of the proceeding would have been different. United
States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.
In order to prove a Brady violation, a defendant must show that "the favorable
evidence could reasonably be taken to put the whole case in such a different 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, Edgin, 902 S.W.2d at 390. There must be a
"reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different." Id. (quoting Kyles v. Whitley, 514 U.S. 419,
435, 115 S. Ct. 1555, 1566). The Court in Kyles urged that the cumulative effect of the
suppressed evidence be considered to determine materiality. 514 U.S. at 436, 115 S.Ct.
at 1567.
The state is not required to disclose information that the accused already
possesses or is able to obtain, State v. Marshall, 845 S.W.2d 228, 233, or information
which is not possessed by or under the control of the prosecution or another governmental
agency. Id.
On appeal, the petitioner makes no specific claim that the state suppressed
information regarding favors or immunity offered to witnesses. However, a review of the
record confirms the post-conviction court’s finding that the petitioner failed to show that any
favors or immunity were given to any of the witnesses in exchange for their testimony.
Worthington and the assistant district attorney generals who prosecuted the petitioner’s
44
case testified that at the beginning, they agreed that there would be no promises to
inmates in exchange for testimony. Worthington believed that all the inmates who testified
had already been paroled at the time of the trial with the exception of Scates. After the
trial, as a courtesy, he wrote Scates a letter of appreciation for his testimony. At best, the
proof showed that the state offered to protect any inmates willing to testify from possible
retaliation.
The petitioner submits that the state should have provided the statements of
the four inmates who testified at trial because the statements were inconsistent. The
statements of the four inmates were suppressed by the state before trial, however, the
defense received the statements as Jencks material after each inmate testified and before
cross-examination.
In State v. Caughron, 855 S.W.2d 526 (Tenn. 1993), our Supreme Court held
that “delayed disclosure requires an inquiry into whether the delay prevented the defense
from using the disclosed material effectively in preparing and presenting the defendant's
case.” Id. at 548. In United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir.1986), the Court
held that defense counsel cured a potential Brady violation by failing to move for a
continuance and then thoroughly cross-examining the witness.
In the present case, the state provided defense counsel with copies of the
inmates’ statements after each inmate testified. Moreover, the trial court gave defense
counsel ample opportunity to review the statements before cross-examining each witness.
Thereafter, defense counsel was given an opportunity to cross-examine the witnesses and
point out any inconsistencies in their statements and testimony. Accordingly, under
Caughron, we find that defense counsel eliminated any Brady violation with regard to prior
statements of the inmates who testified on behalf of the state.
Finally, the petitioner contends that the state was required to disclose Wood’s
report regarding prison conditions at MCRCF. As previously stated, the state is not
45
required to disclose information that the accused is able to obtain. State v. Marshall, 845
S.W.2d 228, 233. Here, the petitioner failed to show that the evaluation and report
prepared by Wood, Report on conditions at selected Adult Correctional Facilities in the
Tennessee Department of Corrections (June 1985), was unavailable to defense counsel.
VIII. Constitutionality of the Death Penalty Statutes
The petitioner raises several constitutional challenges to T.C.A. §§ 39-2-204
and -206 (repealed 1989). To the extent that the petitioner challenged the constitutionality
of the death penalty statutes on direct appeal, Sutton, 761 S.W.2d 763, 768, these claims
have been previously determined. See T.C.A. § 40-30-112(a) (1990). Otherwise, the
issues have been waived. See T.C.A. § 40-30-112(b)(1) (1990). Regardless, our
Supreme Court has held repeatedly that the death penalty statutes are constitutional.
Initially, the petitioner contends that the death penalty statutes fail to
meaningfully narrow the class of death eligible defendants. Specifically, he argues that the
aggravating circumstance set forth in T.C.A. § 39-2-204(i)(5) (repealed 1989), that the
murder was heinous, atrocious, or cruel, is vague and overbroad. Acknowledging that this
issue has been addressed by our Supreme Court in State v. Williams, 690 S.W.2d 517,
526-30, the petitioner submits that the opinion was in error.
As an intermediate appellate court, it is our duty to apply the law as
promulgated by the Legislature or as announced by our Supreme Court. It is beyond our
statutory function to overrule a holding of our Supreme Court, and we are bound to follow
the holding in Williams under the doctrine of stare decisis. See Reimann v. Huddleston,
883 S.W.2d 135, 137 (Tenn. App. 1993). Moreover, our Supreme Court has repeatedly
upheld its decision in Williams, rejecting the argument that this aggravating circumstance
was unconstitutionally vague or overbroad. See State v. Black, 815 S.W.2d 166, 181-82
(Tenn. 1991); State v. Barber, 753 S.W.2d 659, 670 (Tenn. 1988).
46
Next, the petitioner contends that the death penalty is imposed in a capricious
and arbitrary manner. Specifically, he contends that the death penalty statute is
unconstitutional because it requires that the jury be instructed that it must agree
unanimously in order to impose a life sentence and is prohibited from being told the effect
of a non-unanimous verdict. While admitting that this jury instruction has been upheld by
our Supreme Court on numerous occasions, the petitioner contends that the Supreme
Court has never considered the possibility that juries may act arbitrarily because of
confusion regarding the consequences of a deadlock. Again, our Supreme Court has held
this portion of the statute to be constitutional, see State v. Brimmer, 876 S.W.2d 75, 87,
State v. Smith, 857 S.W.2d 1, 22-23 (Tenn. 1993), and State v. Barber, 753 S.W.2d 659,
670-71, and this Court declines the petitioner’s invitation to reconsider its constitutionality.
Next, the petitioner contends that the jury instructions imply that jurors are
required to agree unanimously to a life verdict and to the existence of mitigating
circumstances in violation of Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d
384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 1233, 108
L. Ed. 2d 369 (1990). These arguments have been rejected by our Supreme Court. See
State v. Brimmer, 876 S.W.2d 75, 87; State v. Thompson, 768 S.W.2d 239, 251-52 (Tenn.
1989); State v. Bates, 804 S.W.2d 868, 883.
Next, the petitioner contends that the appellate review process is
constitutionally inadequate in its application. Specifically, the petitioner contends that the
appellate review process is not constitutionally meaningful because the appellate courts
cannot reweigh proof due to the absence of written findings concerning mitigating
circumstances, because the information relied upon by the appellate courts is inadequate
and incomplete, and because the appellate courts’ methodology is flawed. These
arguments have all been rejected. See State v. Brimmer, 876 S.W.2d 75, 87-88; State v.
Cazes, 875 S.W.2d 253, 270-71 (Tenn. 1994).
Finally, the petitioner contends that the statutorily mandated proportionality
47
review is conducted in violation of due process. Our Supreme Court has held that the
appellate review provided for in the statute affords a meaningful proportionality review.
See State v. Brimmer, 876 S.W.2d 75, 87-88; State v. Cazes, 875 S.W.2d 253, 270-71.
Moreover, the petitioner’s claim that our Supreme Court has never found a death sentence
to be imposed in a disproportionate manner is untrue. In State v. Branam, 855 S.W.2d 563
(Tenn. 1993), the Supreme Court found the death penalty to be disproportionate and
reduced the defendant's sentence to life. Id. at 570-71. The petitioner’s claims regarding
the constitutionality of the death penalty statutes are waived, previously determined, and
without merit.
IX. Imposition of Death Penalty Arbitrary and Capricious
Finally, the petitioner contends that because the state failed to provide safe
and constitutional conditions in prison at the time of the murder, imposition of the death
penalty would be arbitrary, capricious, and fundamentally unfair. This issue was previously
determined by our Supreme Court on direct appeal. The Court held that “imposition of the
death penalty by the jury was neither arbitrary nor excessive or disproportionate to the
penalty imposed for similar crimes.” State v. Sutton, 761 S.W.2d 763, 768.
X. Conclusion
After thoroughly reviewing the record and the law applicable to the issues
raised in this appeal, we find that the petitioner has failed to prove his allegations by a
preponderance of the evidence. State v. Kerley, 820 S.W.2d 753, 755 (Tenn. Crim. App.
1991). Accordingly, we affirm the judgment of the trial court.
The petitioner’s sentence of death by electrocution shall be carried out on
August 31, 1999, unless otherwise stayed by an appropriate order.
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_________________________________
JOHN K. BYERS, SENIOR JUDGE
CONCUR:
_________________________________
JOE D. DUNCAN, SPECIAL JUDGE
_________________________________
TERRY L. LAFFERTY, SENIOR JUDGE
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