Owens v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE SESSION, 1999
FILED
September 1, 1999

Cecil Crowson, Jr.
Appellate Court Clerk
GAILE K. OWENS, )
) No. 02C01-9806-CR-00182
Appellant, )
) SHELBY COUNTY
vs. )
) Hon. Chris Craft , Judge
STATE OF TENNESSEE, )
) (Post-Conviction, Capital Case)
Appellee. )

For the Appellant: For the Appellee:

Paul J. Morrow, Jr. Paul G. Summers
Staff Attorney Attorney General and Reporter
Post-Conviction Defender
460 James Robertson Parkway Michael E. Moore
2nd Floor Solicitor General
Nashville, TN 37243-0505
Alice B. Lustre
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493

OPINION FILED:

AFFIRMED

David G. Hayes, Judge
 OPINION

In this capital case, the appellant, Gaile K. Owens, appeals as of right the

judgment of the Criminal Court of Shelby County denying her petition for post-

conviction relief. In 1986, the appellant was convicted of accessory before the fact

to first degree murder. In a joint trial, the appellant’s co-defendant, Sidney

Porterfield, was also convicted of first degree murder and following a separate

sentencing hearing, both were sentenced to death by electrocution. The appellant’s

conviction and sentence were affirmed on direct appeal by the Tennessee Supreme

Court. See State v. Porterfield, 746 S.W.2d 441 (Tenn.), reh’g denied, (1988), cert.

denied, 486 U.S. 1017, 108 S.Ct. 1756 (1988).

The appellant filed the instant petition on February 28, 1991. The post-

conviction court denied the appellant’s ex parte request for expert services.

Through an interlocutory appeal to the Tennessee Supreme Court, the appellant

was granted the funds for expert services. See Owens v. State, 908 S.W.2d 923

(Tenn. 1995). An amended petition was filed on August 15, 1996. A hearing was

held on September 22, 1997. On May 4, 1998, the post-conviction court entered an

order denying the appellant post-conviction relief.

On appeal, the appellant raises the following issues:

I. Whether the appellant received the effective assistance of counsel
at trial;

II. Whether the judge at the post-conviction proceeding, formerly an
assistant district attorney who worked in the office which tried the
appellant, should have recused himself;

III. Whether the appellant was denied her constitutional rights during
the guilt and sentencing phases by the prosecution’s failure to provide
the defense exculpatory evidence;

IV. Whether the heinous, atrocious, and cruel aggravator was
appropriately applied vicariously to the appellant and whether the trial
court should have instructed that the appellant intended to inflict the

2
 heinous, atrocious, and cruel act;

V. Whether the murder for remuneration aggravating circumstance
sufficiently narrows the class of death eligible offenders;

VI. Whether the reasonable doubt jury instructions given at both
stages of the trial were constitutional; and

VII. Whether Tennessee’s death penalty statutes are constitutional.

After reviewing the record, we affirm the judgment of the post-conviction

court.

Background

The proof, as set forth in the supreme court’s decision, State v. Porterfield,

746 S.W.2d at 443-445, established the following pertinent facts:

The evidence shows that over a period of months, Mrs. Owens
solicited several men to kill her husband. One of these men was
Sidney Porterfield. She met with him on at least three occasions, the
last being at 2:30 p.m. on Sunday, February 17, 1985. At that time,
she told him that her husband would either be home alone that night or
would be at the church playing basketball.

That evening Mr. and Mrs. Owens and their two sons attended
evening church services. Afterwards, when Mr. Owens remained at
church to play basketball, the boys asked, as they usually did, to stay
with their father. Mrs. Owens refused their request and took them to a
restaurant for dinner and then to the home of Mrs. Owens' sister,
where they stayed until approximately 10:30 p.m. When they arrived
home at about 11:00 p.m. Mr. Owens' automobile was in the driveway.
The doors were open, the interior light was on and Mr. Owens' coat
and tie were on the seat. They found the back door to the house
partially open, and the keys in the lock. There were signs of a struggle
in the kitchen and blood was splattered on the wall and floor. Mr.
Owens was found in the den unconscious, his head covered with
blood. Mr. Owens died some six hours later from multiple blows to his
head.

The autopsy revealed that Mr. Owens had been struck at least
twenty-one times with a blunt instrument, described by the forensic
pathologist as a long, striated cylinder such as a tire iron. The blows
had driven his face into the floor, crushed his skull and driven bone
fragments into his brain. Mr. Owens also had sustained extensive
injuries to his hands and strands of hair between his fingers indicated
he had been covering his head with his hands when he was beaten.

After the killing, George James, one of the men solicited by Mrs.
Owens to kill her husband, contacted the police and told them of Mrs.
Owens' offer. James then assisted the police by permitting them to
record telephone conversations he had with Mrs. Owens. After one of

3
the calls, James met Mrs. Owens in the Raleigh Springs Mall in
Memphis. James was wearing a hidden body microphone, which was
being monitored by police in a nearby automobile. Mrs. Owens paid
James sixty dollars to keep quiet, telling him that it was all the money
she had. She also stated that she had had her husband killed because
of "bad marital problems." Mrs. Owens was placed under arrest at the
conclusion of her meeting with Mr. James.

At first, Mrs. Owens claimed that she only had hired people to
follow her husband and "to rough him up." She did admit paying out
some $ 4,000 to $ 5,000 to various men for expenses. Later she
confessed to offering three men $ 5,000 to $ 10,000 to kill her
husband and to talking with a man known as "little Johnny" at 2:30
p.m. on the day of the murder about killing her husband. She had
promised to pay him three or four days after the murder. When asked
why, Mrs. Owens stated, "We've just had a bad marriage over the
years, and I just felt like he had, mentally I just felt like he had been
cruel to me. There was very little physical violence."

The man who met Mrs. Owens on Sunday afternoon was
identified by witnesses as Sidney Porterfield. A witness also placed Mr.
Porterfield in the vicinity of the Owens' house a week before the killing.

Mr. Porterfield also made a statement to the police which was
entered into evidence. According to Mr. Porterfield, he met with Mrs.
Owens on three occasions to discuss plans for the killing of Mr.
Owens, the last being at 2:30 p.m. on Sunday, February 17, 1985. He
stated that Mrs. Owens offered him $ 17,000 to kill her husband, and
that he told her he would have to check out the situation. (Shortly after
her husband's funeral Mrs. Owens had asked her father-in law for $
17,000 "to pay some bills.") He further stated that he went to the
Owens' house that evening at about 9:00 p.m. On leaving his
automobile, he put a tire iron in his pocket in case he encountered a
dog. Porterfield stated he was walking in the back yard of the Owens'
house when Mr. Owens came home; that Mr. Owens would not accept
his explanation that he was looking for a house, but informed him he
was going to hold him until the police arrived; that Mr. Owens grabbed
him by the arm and attempted to pull him into the house. According to
Porterfield, Mr. Owens had a brief case in one hand and was grasping
Porterfield with the other. (No attempt was made to explain how Mr.
Owens, with his hands thus occupied, unlocked the door to the house.)
Porterfield said he tried to break away and, when he was
unsuccessful, struck Mr. Owens with the tire iron. The men were then
in the kitchen. Mr. Owens threw his hand up for protection, but would
not release Mr. Porterfield. Porterfield then continued to strike Mr.
Owens with the tire iron, with the result that he did extensive damage
to both of Mr. Owens' hands and to his head. On leaving the Owens'
house, Mr. Porterfield threw the tire iron and the gloves he was
wearing into a dumpster. They were never recovered.

Defendant Porterfield offered no evidence in his defense. Mrs.
Owens presented the testimony of a neighbor, who testified that Mrs.
Owens was almost hysterical after her husband was found. A funeral
home employee also testified. He stated that a large balance was
owing on Mr. Owens' funeral bill, presumably to show that Mrs. Owens
did have large debts to pay after her husband's death as she had
represented to her father-in-law in attempting to secure a loan.

4
 ...

In the bifurcated sentencing hearing, the forensic pathologist
again testified for the state concerning the circumstances of Mr.
Owens’ death, such as blood being inhaled, bone fragments being
driven into his brain, and the fact that Mr. Owens had lived six hours
after the beating. Two photographs showing the head wounds
suffered by Mr. Owens also were introduced.

In addition, the state presented proof that Mr. Porterfield had
been convicted of robbery with a deadly weapon in 1968 and of simple
robbery twice in 1971. The state also relied on the circumstances of
the killing as shown by evidence in the guilt phase of the trial.

In mitigation, the defendant Owens presented evidence that she
had been treated by a psychiatrist on one occasion in 1978 for severe
behavioral problems. She also called two jail employees who testified
that Mrs. Owens was a good prisoner who caused no problems,
volunteered to work, and attended Bible study classes. Mr. Porterfield
presented no evidence in mitigation.

In imposing the sentence of death, the jury found three
aggravating circumstances with respect to Porterfield, and two with
respect to Mrs. Owens. No mitigating circumstances were found.
Specifically, the jury found that Mr. Porterfield (1) had been previously
convicted of one or more felonies involving the use or threat of
violence to the person; (2) that he committed the murder for
remuneration or the promise of remuneration, or employed another to
commit the murder for remuneration, or the promise of remuneration;
and (3) that the murder was especially heinous, atrocious, or cruel in
that it involved torture or depravity of mind. See T.C.A. §§
39-2-203(i)(2), (4) and (5). The jury found the same aggravating
circumstances in sentencing Mrs. Owens, except for the finding of
previous conviction of a felony involving the use or threat of violence to
the person.

Post-Conviction Hearing

In post-conviction proceedings, the appellant must prove the allegations

contained in her petition by a preponderance of the evidence.1 State v. Kerley, 820

S.W.2d 753, 755 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991).

Findings of fact and conclusions of law made by the post-conviction 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

1
Again, the appellant’s petition for po st-conv iction relief wa s filed on F ebruary 2 8, 1991.
Because it was filed prior to May 10, 1995, it is governed by Tenn. Code Ann. § 40-30-101 et seq.
(repealed 1995), rather than the revised Post-Conviction Procedure Act, Tenn. Code Ann. § 40-
30-210 et seq. (1997). Under the cu rrent statute, the standard is “clear and convincing evidence.”
Tenn . Code A nn. § 40- 30-210 (f).

5
evidence or substitute its inferences for those drawn by the post-conviction court.

Questions concerning credibility of witnesses and the weight and value to be given

their testimony are for resolution by the post-conviction court. Black v. State, 794

S.W.2d 752, 755 (Tenn. Crim. App. 1990).

I. Ineffective Assistance of Counsel

The appellant contends that she was denied effective representation of

counsel at trial due to counsel’s failure to: (1) adequately investigate a death penalty

case; (2) properly request expert services; 3) request investigative assistance; (4)

appropriately manage the trial testimony of Dr. West; and (5) request a continuance,

which would have been automatic, when the State failed to comply with the notice

provisions regarding aggravating circumstances.2

A. Standard for Determining Ineffective Assistance of Counsel

When a claim of ineffective assistance of counsel is raised, the burden is

upon the appellant to show (1) that counsel's performance was deficient and (2) that

the deficient performance prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Thus, the appellant must prove that

counsel "made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment," and the appellant must

demonstrate that counsel's errors "were so serious as to deprive the defendant of a

fair trial, a trial whose result is reliable." Id. The appellant must establish both

deficient performance and prejudice in order to prevail. Id. A reviewing court need

not consider the two prongs of Strickland in any particular order. Strickland v.

Washington, 466 U.S. at 697, 104 S.Ct. at 2069. Moreover, if the appellant fails to

2
In other sections of her brief, the appellant claims ineffective assistance of counsel for
failur e (1) t o obj ect to the m urde r for h ire ag grav ating circu ms tanc e, (i)(4 ), as d oub le
enhancement; (2) to object to the vicarious application of the heinous, atrocious, and cruel
aggravating factor; and (3) to request a clarifying instruction regarding intent to inflict serious
physical ab use in the (i)(5) aggra vating circu msta nce. See infra, Section IV, “Vicarious
Application of the Heinous, Atrocious, and Cruel Aggravator” and Section V, “Unconstitutional
Duplica tion of the R emu neration A ggrava tor” for revie w of thes e issues .

6
establish one prong, a reviewing court need not consider the other. Id.

With respect to deficient performance, the proper measure of attorney

performance is reasonableness under prevailing professional norms. Strickland v.

Washington, 466 U.S. at 688, 104 S.Ct. at 2065. In other words, the attorney's

performance must be within the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975). This court

"must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action 'might be

considered sound trial strategy.' " Strickland v. Washington, 466 U.S. at 689, 104

S.Ct. at 2065. We should defer to trial strategy or tactical choices if they are

informed ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9

(Tenn.1982). Additionally, this court should avoid the "distorting effects of hindsight"

and "judge the reasonableness of counsel's challenged conduct on the facts of the

particular case, viewed as of the time of counsel's conduct." Strickland v.

Washington, 466 U.S. at 689-690, 104 S.Ct. at 2065-2066. Moreover, we note that

defendants are not entitled to perfect representation, only constitutionally adequate

representation. Harries v. State, No. 833 (Tenn. Crim. App. at Knoxville, August 29,

1990), perm. to appeal denied, (Tenn.1991). However, we recognize that “our duty

to search for constitutional [deficiencies] with painstaking care is never more

exacting than it is in a capital case.” Burger v. Kemp, 483 U.S. 776, 785, 107 S.Ct.

3114, 3121 (1987).

To establish the prejudice prong of Strickland, the appellant must show that

there is a reasonable probability that, but for counsel's deficient performance, the

result of the proceeding would have been different. Strickland v. Washington, 466

U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is one sufficient to

7
undermine confidence in the outcome. Id. Moreover, when challenging a death

sentence, the appellant must show that “there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that the balance of the

aggravating and mitigating circumstances did not warrant death.” Henley v. State,

960 S.W.2d 572, 579-580 (Tenn. 1997), reh’g denied, (1998), cert. denied, -- U.S. --

, 119 S.Ct. 82 (1998) (citing Strickland v. Washington, 466 U.S. at 695, 104 S.Ct. at

2069).

B. Testimony at the Post-Conviction Hearing

At trial, the appellant was represented by James Marty and Brett Stein.3

Marty testified that he was admitted to the practice of law in 1971 and, at the time of

the instant case, his practice was ninety-percent criminal. Prior to the appellant’s

case, he had served as lead counsel in three or four capital trials. From the

beginning of the case, Marty was aware that the State was seeking the death

penalty. It was evident that Marty had great difficulty recalling his work on the case.

He was appointed in May of 1985 and the trial commenced in January of 1986.

Marty stated that they had interviewed numerous witnesses; however, he did

not remember their names nor the subject matter of their conversation. He related

that his records probably did not indicate all of the witnesses he interviewed.

However, he recalled that the appellant did not want him to interview her children

nor were they to be involved with the trial. He stated that he did not always write

everything down on appointed cases, just what he remembered at the time. He

testified that the time sheets were always “way short of the time” he actually spent

working on the cases. Counsel did not request any school, employment, or military

records of the victim because he believed they were irrelevant to the case.

3
Originally, Wayne Emm ons and James Marty were appointed to the appellant’s case;
however, Emmons withdrew in December of 1985 and was replaced by Brett Stein.

8
 Marty testified that the appellant was evaluated in 1978, by Dr. Max West, a

psychiatrist, as a result of a pending embezzlement charge. Dr. West was called at

the sentencing phase for the purpose of offering mitigation proof. Marty testified

that the defense team requested funds from the trial court which would have

permitted private mental health evaluations; however, this request was denied. The

court did grant authorization for the appellant to be evaluated by Midtown Mental

Health Center, a state funded facility. Members of the Midtown staff attempted to

conduct a competency/sanity evaluation of the appellant on three separate

occasions. However, any evaluation was hindered because, on each occasion, the

appellant refused to speak with them, except for providing family history information,

until she had conferred with counsel. Marty further testified that counsel never

advised the appellant not to talk to any mental health expert; explaining “I’m sure I

told her to cooperate with them because we needed the mental evaluation, and we

didn’t get it.”

Marty further testified that at trial the defense theory was that the appellant

had withdrawn her solicitations to kill her husband and that knowing this, Porterfield

murdered the victim in a burglary attempt on their house. Believing the appellant’s

testimony was critical to their defense, counsel stated that he tried upon several

occasions to get the appellant to testify at her trial. The appellant repeatedly

refused. He explained that her testimony was crucial to support her defense and

also to establish her mental state. In an attempt to bring into question her mental

state, he advanced the argument that no sane white lady would venture into an

unfamiliar, all black neighborhood and openly solicit men on the street to kill her

husband.

Brett Stein, defense co-counsel, testified that he has practiced law since

1963, engaging primarily in criminal practice. He was appointed to the appellant’s

9
case in December of 1985, some thirty days prior to trial, replacing Emmons. Stein

stated that Marty remained lead counsel deciding the strategy decisions. He

testified that he was aware of the death penalty aggravating circumstances that

would be used against the appellant long before the trial even though the State filed

their notice the day preceding the trial. Stein related that his file of this case was

burned in an office fire. He stated that this case was his first bifurcated capital trial.

Stein was also unable to remember much of his participation in the case occurring

over ten years ago. He testified that he did not independently obtain the appellant’s

medical, educational or employment history.

Wayne Emmons, an appointed attorney for the appellant’s trial, testified that

his first involvement in the case was in May of 1985 and he withdrew from the case

in December of 1985, because of commitments in other cases. Emmons testified

that he filed the motion for the services of mental health experts. Since the motion

was not filed ex parte, he did not specify the reasons for the request or any other

specifics for the evaluation, i.e., costs, venue, or doctor.

At the post-conviction hearing, Eric Gentry was called by the appellant to

testify as an expert in the field of traumatology. 4 Gentry’s testimony and

4
The trial court provided a concise summary of this witness’ qualifications in its written
finding of facts:
Altho ugh [Gen try] wa s unlic ens ed in a ny disc ipline, he he ld a M aste rs in
Coun seling, and at one tim e had be en licens ed in W est Virginia in Social W ork.
He had many “certifications,” many of which were irrelevant to the psychological
assessment of the petitioner, such as Art Therapy, Biofeedback, Eye Movement
Desensitization, etc., and many of which were the result of weekend training
seminars. He was tendered to the Court as an expert in Traumatology, which he
explained as a study of

traumatic experiences, the effects of traumatic experiences, and
what eff ects the y have on a person who’s ex perienc ed them both
from a point of view of a clinical point of view and from a disaster
point of view . I specialize with - - with the clinica l aspect o f that,
working with survivors of trauma.

He had not published, but had an article accepted for publication on “compassion
fatigue,” a study of emergency workers and their problems. He also had another
work accepted as a chapter in a book on how to work with trauma survivors,
which had not yet been published. His practical experience consisted of working
one year in an adole scent s helter, 1 ½ years as a couns elor for a c omm unity
agency, one year as a sex abuse counselor, one year working with homeless
children, one year as an addiction counselor at a “wilderness school,” and four

10
“psychosocial” assessment (a social history combined with Gentry’s impressions

thereof) was essentially offered to show what additional mitigation evidence was

available for defense counsel during the penalty phase of the trial. Gentry related

that the appellant grew up in a poor, filthy household. He stated that the appellant

apparently spent considerable time during her developmental years with her aunt

and uncle, which she apparently enjoyed more than living at home with her parents.

He testified that the appellant’s father was prone to drinking spells and would

sometimes beat his wife and children. The appellant also informed Gentry that her

mother would beat her as well.

The appellant told Gentry that she was sodomized by her husband on several

occasions and was forced to have sex the night before the birth of her second child,

which apparently caused severe bleeding. The appellant also told Gentry that her

husband was upset when she became pregnant with their first child, because she

had forgotten to take her birth control pills and he did not think they could afford the

expense of a child. The appellant was charged with embezzlement shortly after the

birth of their first child and again after the birth of her second child. Gentry

explained that the appellant probably felt the need to alleviate the financial strain on

the marriage. It was Gentry’s opinion that the appellant has “very poor problem-

solving and conflict resolution skills” and “often will acquiesce to the needs and

demands of others in order to avoid social conflict.” Also, according to Gentry,

years working for a psychiatrist as a therapist, gradually concentrating on
survivors of trauma. He had no training or experience in forensic psychology. At
the time of his testimony, he was a student at Florida State University studying
ma rriag e and fam ily thera py and psyc hotra um atolo gy. He claim ed no expe rtise in
anything other than his special area, and testified that “I consider myself an
expert in working with survivors of trauma. That’s the only thing -- claiming any
expertise in here as I sit in this chair right now.” He stated he had ne ver before
testified as an expert, and would never testify as one again, after this hearing,
becau se it was to o hard. . . .

When the witness was tendered as an expert in the field of
Traumatology, this Court had serious reservations about his expertise, and asked
the witness what he had been doing immediately before beginning his present
studies at Florida State. Mr. Gentry answered that he had spent those last seven
mon ths prior to h is curren t studies h iking the A ppalach ian Trail.

11
given the appellant’s upbringing she probably thought any abuse suffered at the

hands of her husband was “expected.” Gentry further testified:

As I’ve previously talked about from my point of view is that
there was nothing more important to Gaile than the approval and love
of Ron. And that turning him in, giving up that relationship, divorcing
him, would have been for her to give up her whole identity, her reason
for living, the thing inside of her that meant the most to her.

In assessing the value of the proffered mitigation evidence of Gentry, the post-

conviction court entered the following findings:

In addition to Mr. Gentry’s lack of training and experience, this
Court finds many of his sources of information appear highly suspect
or biased. His primary source for petitioner’s social history was
petitioner herself, who admittedly has a serious problem with
truthfulness. Much of the history she reported was contradicted by her
family members, and all of the “sexual trauma” she reported was
totally unsupported by any other witnesses or medical records. . . .
All of the “trauma” experienced by petitioner, on which Mr. Gentry
based his opinions, such as sexual brutality performed on the victim by
her husband, was totally unverified. As an example, petitioner claimed
that her husband once raped her with a wine bottle, breaking the neck
of the bottle off in her vagina. According to petitioner, she did not seek
medical treatment, however. There is no proof in the record that she
ever related any of this alleged sex abuse or violence to anyone during
her entire marriage, or for the first five months of her attorneys’
representation. She apparently first related this information to her
attorneys the week of the hearing on her pretrial motions. When
asked if her children were ever exposed to any of this, Mr. Gentry
responded that petitioner told him “that Gaile and Ron were very
careful to not let the kids see any of the fights between them that they
had” so they would send the kids out to play first. Her family members
and friends denied that anything seemed wrong.

...

Not only was most of the history petitioner related to Mr. Gentry
unverified by independent sources, but much of it was contradicted by
her family and other prior statements of petitioner herself. As
examples of this, petitioner related to Mr. Gentry that her uncle
sexually abused her, and that she had talked to her mother about it.
Her mother denied it. Petitioner apparently never told anyone about
this molestation until preparing for the hearing on this petition. She
said she wanted to have children and the victim did not, and was angry
with her for getting pregnant, so she committed the embezzlements to
eliminate the financial strain of her pregnancies. This flies in the face
of all the evidence that pointed to his loving his two sons, and her
reporting to Dr. W est that she stole because she wanted extra things
for herself and her family. She also stated to Mr. Gentry that in
December 1985, she caught her husband and Gala Scott coming back
together to his office early one morning, and when he got angry at her
for spying he slammed her into his car and called her a “bitch.” She
stated she decided at that time, while driving out of the parking lot, to
commit suicide, and headed to the Mississippi bridge, but instead,
apparently on impulse, asked a group of men she saw if they would kill

12
 her husband. She claims to have done this for only three days, and
then stopped and began trying to recover the photographs and
diagrams she had given the men. This unsupported allegation flies in
the face of trial testimony that she repeatedly solicited her husband’s
death over a period of weeks and months. She also explained to Mr.
Gentry that she was physically abused, but explained that she had told
the police and Dr. West that she had never been physically abused
because she didn’t think things like being beaten with a belt was
physical abuse. However, in her confession to the police she stated
she had her husband killed because “We’ve just had a bad marriage
over the years, and I just felt like he had ... mentally I just felt like he
had been cruel to me. There was very little physical violence.”

...

In summary, the best person to have testified to all this abuse
during trial would have been petitioner, if this story of continued sexual
abuse and physical abuse were true. If her trial attorneys had called
Mr. Gentry as a witness, or someone else in 1986 with the same lack
of qualifications, his testimony would have been given little or no
weight by the jury. . . . The state could have called petitioner’s family
members in rebuttal to deny the social history related by petitioner.
Finally, testimony of petitioner’s suffering from “dependent personality
disorder” would have negated a mitigating reason for her to have
caused her husband’s death.

Dr. West, a psychiatrist called at the sentencing phase of the trial by the

defense and also called at the post-conviction hearing, testified that he examined

the appellant for an hour in 1978 because of the appellant’s pending embezzlement

charge. From his evaluation, he determined that the appellant exhibited no

symptoms of a psychotic process, nor was there any history of psychotic disorders

in her family. He concluded that, due to her developmental experiences at home,

the appellant suffered from a personality disorder and some depression. During the

interview, the appellant told Dr. West that she needed help, she had a difficult time

being truthful with her husband and other people, and she had stolen at other times

when she was younger. She admitted to problems with sex early in her marriage

which decreased following the birth of her first child. Following his evaluation, Dr.

West informed appellant’s counsel, Marty, that “it’s extremely difficult if not

impossible to make a prediction in regards to possible future changes in

psychopathology which [appellant] has demonstrated.”

In reviewing the impressions of Eric Gentry at the post-conviction hearing, Dr.

13
West testified that those impressions were consistent with and were a logical

extension of his observation of the appellant from the one hour interview nineteen

years previous. Dr. West opined that “[t]here would be many factors that would

suggest she was ideally situated to be sexually abused” as a teenager, but that in

the brief time he saw her, the appellant stated that “everything was fine with her

husband.” The appellant related to Dr. West that the sexual adjustment in her

marriage was satisfactory and that she had no problems with her pregnancies. He

testified that his first contact with the appellant’s capital trial attorneys was through a

letter dated December 26, 1985.

The State called Carolyn Hensley, the appellant’s sister. At trial, Mrs.

Hensley also testified for the State. She has retained custody of the appellant’s

children since the appellant’s arrest. Hensley related that the appellant had told her

trial attorneys not to contact any of her family for trial purposes. Furthermore, she

stated that despite her sister’s insistence about leaving the family out of the trial, she

would not have testified on behalf of her sister for mitigation. She stated, “I think I

would have hurt her if they’d have asked me much more. . . in my mind I felt like that

it was a matter of taking a life. And pretty much felt that whatever the jury decided

and the judge that that was how it was going to be.” According to Hensley, her

parents were very distraught over the murder and would not have testified either. In

fact, Hensley stated that no one in her family wanted to testify for the appellant; “no

one wanted to change the sentence if that’s what you’re asking me.”

Hensley further testified that she was interviewed by Gentry before the post-

conviction proceeding. Moreover, she had reviewed his report. She testified that

she did not agree with some of the facts delineated in Gentry’s report. For example,

she testified that the appellant never had meningitis and was never sexually abused

by her uncle. However, she admitted that her father was abusive toward his

children.

14
 Ms. Hensley related that she frequently had social contact with the appellant

and the victim. She never witnessed the victim abuse the appellant nor did she

notice anything unusual about his behavior. Hensley testified that she talked with

her sister daily, however, she never mentioned any physical or sexual abuse. She

stated that the appellant “spent money like crazy.” The appellant’s parents

reimbursed some of the money the appellant embezzled from her employers.

Hensley testified that the appellant lied chronically and “[i]t wouldn’t have to be

anything even really serious.”

C. Analysis of Ineffective Claims

1. Various Claims of Inadequate Investigation

First, the appellant contends counsel were ineffective in preparing and

investigating this case. To support this contention, she relies upon trial counsel’s

time sheets which were submitted for compensation; in essence, she argues that

counsel did not log enough hours in this death penalty case. At the post-conviction

hearing, each of appellant’s counsel exhibited extreme difficulty remembering their

involvement in this case that occurred nearly ten years before this hearing. Since

the original trial, one of the attorneys lost his case file in an office fire. Additionally,

Marty testified that the time recorded on his time sheets was “way short” of the

actual time he spent working on the case. As the State argues, the entire record of

the trial proceedings must be examined to determine whether the appellant received

effective assistance of counsel. See e.g., Hopkinson v. Shillinger, 866 F.2d 1185,

1217 (10th Cir. 1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3256 (1990), overruled

on other grounds by Sawyer v. Smith, 497 U.S. 226, 110 S.Ct. 2822 (1990)

(defendant must show specific errors, not solely based upon amount of time

afforded to attorney to prepare defense) (citing United States v. Cronic, 466 U.S.

648, 654, 104 S.Ct. 2039, 2043 (1984) and United States v. Pearson, 798 F.2d 385,

388 (10th Cir. 1986)). Therefore, the appellant’s insistence that the length of time

counsel spent on the case is not dispositive of the issue.

15
 The appellant argues that counsel failed to investigate “the background and

personal medical and mental history of the appellant.” Specifically, she argues that

counsel failed to obtain (1) school records; (2) birth records of her children; (3) the

file of Dr. Max West; and (4) Midtown Mental Health Records. She contends that, if

these records had been obtained and properly utilized at trial, they would have

provided the jury with the “psychodynamics of Ms. Owen’s background and why

certain building blocks of her personality never developed.” In sum, she argues that

these records would demonstrate a “dependent personality disorder” and an abusive

childhood followed by an abusive marriage.

In reference to these allegations, the post-conviction court found:

No other witnesses support any of her alleged medical problems, or
their causes, which are also unsupported by any documentation.
Petitioner has failed to show her attorneys ineffective in failing to
investigate her medical history, as there is nothing her attorneys could
have discovered other than the unsupported statements of petitioner,
who has been described as a chronic liar by her psychiatrist, her
“traumatologist,” and her sister.

Moreover, the post-conviction court concluded,

that even assuming the performance of her trial attorneys was
deficient, that deficiency caused no prejudice to petitioner. First, the
nature and extent of the mitigating evidence that has been suggested
should have been offered has little credibility or relevance. Second,
although similar mitigating evidence was not presented, if it had been
presented it would have opened the door to damaging evidence to the
contrary.

Again, the post-conviction court’s findings are presumed correct unless the

evidence preponderates otherwise. We agree with these findings. This issue is

without merit.

Next, the appellant claims the victim’s records and investigation into his

background were essential to support her case that she was abused by the victim

physically, sexually, and mentally. She asserts that these records, especially his

military records and employment records, demonstrate that the victim perpetuated a

facade of a happy and normal home life while concealing the lies and the abusive

16
side of his marriage. This, she contends, would have allowed her claims of abuse to

be better received. The State cites State v. Johnson, 698 S.W.2d 631, 634 (Tenn.

1985), in which the court held that victim’s character traits are irrelevant for

mitigation in a capital sentencing hearing. As the post-conviction court observed,

the claims of abuse were just that, claims, without any other corroborating evidence

to support them. See also State v. Teague, 680 S.W.2d 785, 788 (1984) (victim’s

traits are irrelevant to mitigation evidence). Finding no evidence to preponderate

against the trial court’s findings, this issue is without merit.

2. Ex Parte Motion for Expert Services

The appellant also argues that counsel were ineffective by failing to file an ex

parte motion for state paid expert assistance prior to trial. Before trial, counsel filed

a motion, not ex parte, requesting funds for an independent mental evaluation.

Although the trial court denied the request for an independent examination, the

appellant was ordered to be examined for competency and sanity by the Midtown

Mental Health Center. The appellant asserts that counsel should have sought funds

in an ex parte hearing enabling counsel to provide better argument in support of the

motion.

The appellant has not demonstrated how she was harmed by counsel’s

failure to request the services of an independent expert by an ex parte motion. See

Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). “The defendant must

show that a substantial need exists requiring the assistance of state paid supporting

services and that this defense cannot be fully developed without such professional

assistance.” State v. Evans, 838 S.W.2d 185, 192 (Tenn. 1992), cert. denied, 510

U.S. 1064, 114 S.Ct. 740 (1994). Notwithstanding the testimony of the

traumatologist, we conclude that the proof did not establish that a “substantial need”

existed for state paid expert assistance. Finding no prejudice, this issue is without

17
merit.

3. Failure to Request Investigative Services

The appellant contends counsel was deficient by failing to request

investigative services or to file a continuance motion due to a lack of investigation.

For purposes of proving an ineffective assistance of counsel claim, proof of deficient

representation by omission requires more than a speculative showing of a lost

potential benefit. The appellant failed to produce any evidence at the post-

conviction hearing indicating that an investigator would have discovered any

information favorable to her case. Accordingly, this allegation of deficient

performance fails both prongs of Strickland and is without merit.

4. Testimony of Dr. West

The appellant alleges that counsel were ineffective in failing to properly

interview Dr. West pre-trial and failing to manage his testimony at trial. The

appellant contends that her attorneys should have questioned the trial court’s

hearsay ruling that prevented Dr. West from testifying to the information that the

appellant related about her social history. In a capital sentencing hearing, any

relevant mitigating evidence is allowed regardless of the rules of evidence. See

Tenn. Code Ann. § 39-2-203(c) (repealed 1991, replaced by 39-13-204 (1991)).

The post-conviction court found that the limited questioning of Dr. West was a

tactical, strategical decision by her attorneys, that would not be second guessed.

See Hellard, 629 S.W.2d at 9. Additionally, the court found that the appellant failed

to establish prejudice because if Dr. West testified to her social history, he would

have revealed, “damaging admissions by petitioner that she had no problems with

her marriage, and that she had a long term problem with lying and stealing, would

not have helped her gain sympathy with the jury.” The record does not

preponderate against these findings.

18
 5. Failure to Request a Continuance

The appellant complains that counsel were ineffective because they failed to

file a motion for a continuance prior to trial, which would have been “automatic,” due

to the State’s failure to comply with the notice requirements of the aggravating

circumstances sought in this capital case. At the post-conviction proceeding,

counsel testified that they were aware from the beginning of the case that the State

was seeking the death penalty. Counsel felt it was obvious which aggravating

factors the prosecution would use at the sentencing phase and therefore did not

move for a continuance. In this regard, the supreme court in the direct appeal

noted, “there is nothing in the record to indicate either that the defendants were

surprised when the state announced the aggravating circumstances it intended to

prove, or that the defendants were prejudiced in any way by the timing of the

notice.” See Porterfield, 746 S.W.2d at 450. The appellant also failed at the post-

conviction hearing to demonstrate any surprise on the part of the appellant, to

demonstrate how this motion would have impacted her trial, or that prejudice

resulted. This issue is without merit.

II. Recusal of Post-Conviction Judge

Second, the appellant contends that the post-conviction judge abused his

discretion in failing to recuse himself from these proceedings because (1) the

impartiality of the trial judge might reasonably be questioned because of his

employment in the district attorney’s office that tried the case and (2) the trial judge

“demonstrated actual bias [in numerous areas] in favor of the prosecution” during

the hearing and in the written order denying relief. She supports her argument by

citing Supreme Court Rule 10, Code of Judicial Conduct, Canon 3(E) in that, “[a]

judge shall disqualify himself. . . [where] a lawyer with whom the judge previously

practiced law served during such association as a lawyer concerning the matter” and

that the court’s “impartiality might reasonably be questioned.”

19
 In this case, the post-conviction judge was employed as a Shelby County

Assistant District Attorney during the period that the Shelby County District

Attorney’s Office prosecuted the appellant. The proof established that the judge

was one of nearly seventy attorneys employed by the District Attorney’s Office. He

was never assigned to prosecute or assist in the prosecution of this case. He

related that he knew nothing about the facts of this case, other than reading

advance sheets regarding the supreme court’s opinion in the direct appeal and their

interlocutory appeal opinion regarding expert services for post-conviction

defendants, nor did he know the attorneys involved.

A motion to recuse is addressed to the sound discretion of the trial court and

will not be reversed unless the face of the record reveals “clear abuse.” State v.

Hines, 919 S.W.2d 573, 578 (Tenn. 1995), cert. denied, 519 U.S. 847, 117 S.Ct.

133 (1996) (citation omitted).

Tenn. Sup. Ct. Rule 10, Canon 3(E) provides,

A judge shall disqualify himself. . . in a proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to
instances where:
(a) the judge has a personal bias or prejudice concerning a party or a
party’s lawyer, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a
lawyer with whom the judge previously practiced law served during
such association as a lawyer concerning the matter, or the judge has
been a material witness concerning it.

We note that the commentary to this section includes,

[a] lawyer in a government agency does not ordinarily have an
association with other lawyers employed by that agency within the
meaning of Section E(1)(b); a judge formerly employed by a
government agency, however, should disqualify himself . . . in a
proceeding if the judge’s impartiality might reasonably be questioned
because of such association.

Nothing in the record before us suggests that the judge’s impartiality should be

questioned. Therefore, we conclude that the trial judge did not abuse his discretion

in denying the recusal motion.

20
 Second, the appellant complains that the post-conviction judge’s conduct at

the post-conviction hearing demonstrated bias in favor of the prosecution as

exemplified by his written order denying relief. She claims bias of the post-

conviction judge in the following areas: (1) dismissing the appellant’s claims and

proof of sexual abuse; (2) assessing potential expert proof; (3) evaluating the

testimony of Dr. West; (4) dismissing a “legitimate psychological discipline” i.e.,

traumatology, thereby besmirching the expert testimony offered by the appellant.

Initially, we note, as the appellant acknowledges, that adverse rulings by a

court are not usually sufficient grounds to establish bias. Alley v. State, 882 S.W.2d

810, 820 (Tenn. Crim. App. 1994). Moreover, “[t]he issue to be determined is not

the propriety of the judicial conduct of the judge, but whether he committed an error

which resulted in an unjust disposition. . . .” State v. Hurley, 876 S.W.2d 57, 64

(Tenn. 1993). The appellant asserts that the trial court’s conduct in this case went

far beyond an adverse ruling.

From our review of the record, the post-conviction court conducted an

extremely fair hearing exercising great leniency for each side in managing their

witnesses, offering assistance in clarification of questions and responses, and did

not exclude any testimony or evidence. Moreover, the court rarely sustained an

objection for the prosecution. Within the trial court’s written order lies the appellant’s

greatest complaint. See supra. The appellant asserts in her brief that the court

failed to consider the traumatologist’s testimony or psychosocial report, which we

acknowledge was within the trial court’s bounds not to accredit as the trier of fact.

Following the trial court’s review of the trial record and the evidence introduced at

the post-conviction proceeding, the court filed a comprehensive written order,

addressing specifically each of the appellant’s allegations. The record is void of any

suggestion that the court demonstrated direct antagonism against the appellant or

expressed any opinion about the merits of the proceeding prior to the hearing. See

21
Alley, 882 S.W.2d at 821-822.

We conclude that neither the judge’s remarks and actions at the post-

conviction hearing nor his written order were inappropriate and did not diminish the

overall fairness of the proceeding, even applying the heightened standards of due

process applicable in a capital case. See State v. Cazes, 875 S.W.2d 253, 260

(Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 743 (1995). Accordingly, this

issue is without merit.

III. Alleged Brady Violations

The appellant asserts that the State withheld exculpatory evidence thereby

violating Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). Specifically, the

appellant argues that the State failed to relinquish “love letters” regarding

extramarital affairs of the victim found in the victim’s office after his death which

were material and relevant to the appellant’s state of mind and the victim’s treatment

of the appellant. Thus, she contends the letters should have been revealed prior to

trial to demonstrate proof of a “continuing extramarital affair.”

In Brady, 373 U.S. at 83, 83 S.Ct. at 1194, the Supreme Court held that the

prosecution has a duty to furnish the defendant with exculpatory evidence relating

either to the defendant’s guilt or innocence or to the potential punishment that may

be imposed. See also Roger Morris Bell v. State, No. 03C01-9210-CR-00364

(Tenn. Crim. App. at Knoxville, Mar. 15,1995), perm. to appeal denied, (Tenn. Aug.

28, 1995).

The proof establishes that the appellant discovered the victim’s affair with

Gala Scott several months prior to the murder. This discovery led the appellant to

consider suicide and subsequently solicit her husband’s murder. Moreover, the

22
appellant’s attorneys were aware of extramarital affairs of the victim through their

conversations with the appellant as evidenced by their request for information in

their exculpatory motion. The duty upon the State under Brady does not extend to

information already in the possession of the defense or that they are

able to obtain or to information not in possession or control of the prosecution.

Banks v. State, 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977).

More importantly, however, is the requirement that the information

suppressed must have been exculpatory, i.e., favorable to the appellant. We

conclude that this evidence was not favorable and, accordingly, no Brady violation is

found. In this regard, we would not disagree with trial counsel’s testimony that

introduction of this evidence may have provided the appellant with a motive to kill

her husband. This issue is without merit.

IV. Vicarious Application of the Heinous, Atrocious, and Cruel Aggravator

Next, the appellant argues that the vicarious application of the (i)(5)

aggravating circumstance, i.e., “[t]he murder was especially heinous, atrocious, or

cruel in that it involved torture or depravity of mind,” see Tenn. Code Ann. § 39-2-

203(i)(5) (1982) (repealed 1989), 5 was improper. Her argument is premised upon

United States Supreme Court decisions which hold that in order for a death penalty

to pass Eighth Amendment constitutional muster, the sentence must represent an

individualized sentence rather than one which “can be called capricious or

arbitrary.”6 Thus, she argues that constitutional restraints on the imposition of

capital punishment prevent the imposition of the death penalty based upon the

5
This provision has been replaced by Tenn. Code Ann. § 39-13-204(i)(5) (1997 & 1998
Sup p.), w hich prov ides , “[t]ha t the m urde r was espe cially he inous , atroc ious , or cr uel in th at it
involved tor ture or se rious phys ical abus e beyond that nece ssary to pr oduce death.”

6
In Gre gg v. G eorg ia, 428 U.S. 153, 96 S.Ct. 2909 (1976), the Supreme Court interpreted
the Eighth Amendment to require sentencers to individualize defendants through consideration of
mitigation evidence. In capital sentencing decisions, the States were required to allow the
sentencers to make a determination based upon “the circumstances of each individual homicide
and individual defendant.” Proffit v. Florida, 428 U.S . 242, 258 , 96 S.Ct. 2 960, 296 9 (1976 ).

23
conduct of an accomplice. Moreover, she contends there is no proof in the record to

indicate that she directed Porterfield, her co-defendant, to kill the victim by

bludgeoning him with a tire iron and, consequently, the acts of Porterfield cannot be

attributed to her. To support her contention, the appellant asks this court to adopt

the holdings of Omelus v. State, 584 So. 2d 563 (Fla. 1991) and State v. Isa, 850

S.W.2d 876 (Mo. 1993), both of which held that a convicted murderer who did not

actually kill the victim cannot be held responsible for the nature of the killing. In

Omelus, 584 So. 2d at 563, the defendant was convicted of contracting the murder

of another. The proof did not establish that the defendant was actively involved in

the planning of the murder or knew how the third person would commit the killing.

Id. The Florida Supreme Court held that the aggravating circumstance that the

murder was especially heinous, atrocious, or cruel could not be applied to the

defendant. Id.

The State argues, first, that this issue was raised by the appellant on direct

appeal, in that, in essence, it is a claim supporting the sufficiency of the aggravating

factor. Moreover, the State claims that the expansion of the argument regarding this

aggravating factor to its vicarious application is waived for failure to make an

objection at trial or raise the specific issue on direct appeal. Third, the State

contends that the aggravator is supported based upon the appellant’s “depravity of

mind.” In the alternative, the State argues that, if the aggravator was erroneously

applied, it constitutes harmless error under State v. Howell, 868 S.W.2d 238 (Tenn.

1993), in light of the substantial proof of the other aggravator and the minimal

mitigation.

We reject the State’s argument that this issue was previously determined by

the Tennessee Supreme Court. But see State v. Blanton, 975 S.W.2d 269, 280

(Tenn.), reh’g denied, (1998), cert. denied, -- U.S. -- , 119 S.Ct. 1118 (1999)

(appellant argued no evidence to determine whether he shot and stabbed victim;

24
court addressed issue under sufficiency of evidence review holding evidence of

aggravator was clearly sufficient in direct appeal). In the direct appeal, only the

defendant Porterfield challenged the application of the (i)(5) aggravator. Because

this issue was not raised in the appellant’s direct appeal, it is waived. See Tenn.

Code Ann. § 40-30-112(1) and (2) (1990).

Nevertheless, we address the issue of vicarious application of the (i)(5)

aggravating factor on the merits. Although, under the premise of vicarious

application, concerns arise regarding the constitutional standards governing

individualized sentencing, we conclude that the vicarious application of an

aggravating circumstance, where statutorily permissible, does not trespass upon the

mandates of either the Eighth Amendment of the United States Constitution or

Article 1, Section 16 of the Tennessee Constitution.

The United States Supreme Court addressed a similar issue in Enmund v.

Florida, 458 U.S. 781, 798, 102 S.Ct. 3368, 3377 (1982),7 where the Court’s holding

prohibited the institution of the death penalty on a non-participating accomplice, in

other words, a non-triggerman could not receive the death penalty. Specifically, the

Court held, “the imposition of the death penalty on one such as Enmund who. . .

does not himself kill, attempt to kill, or intend that a killing take place or that lethal

force will be employed” is constitutionally prohibited. Enmund v. Florida, 458 U.S. at

797, 102 S.Ct. at 3376. The opinion further held, “[t]he focus must be on [the

defendant’s personal] culpability, not on that of those who committed the robbery

and shot the victims, for we insist on ‘individualized consideration as a constitutional

requirement in imposing the death sentence.” Id. (citing Lockett v. Ohio, 438 U.S.

586, 605, 98 S.Ct. 2954, 2965 (1978)).

7
The defendant in Enmund v. Florida remained in the getaway car while one of his two
codefendants robbed and killed an elderly couple. The defendant was convicted of felony murder
and se ntence d to death . See Enmund , 458 U.S . at 784-78 5, 102 S .Ct. at 337 0.

25
 Five years later, the Court in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676

(1987), another felony murder case based upon accomplice liability, explained

Enmund to mean that Enmund’s conduct was too tangential and attenuated without

proof of intent. The Court dramatically refined the Enmund intent rule and held that

“major participation in the felony committed, combined with reckless indifference to

human life” demonstrated culpability sufficient for execution. Tison v. Arizona, 481

U.S. at 158, 107 S.Ct. at 1688.8 Thus, after Tison, nearly all defendants convicted

of felony murder, both killers and non-triggermen, became death eligible. Indeed,

a death penalty sentence may be imposed where a defendant kills,
attempts to kill, intends that a killing take place, or that lethal force will
be imposed, or where a defendant’s personal involvement in the
underlying felony is substantial and who exhibits a reckless disregard
or indifference to the value of human life.

See State v. Bigbee, 885 S.W.2d 797, 817 (Tenn. 1994) (Reid, J., concurring) (citing

Tison v. Arizona, 481 U.S. at 137, 107 S.Ct. at 1676; Enmund v. Florida, 458 U.S. at

797, 192 S.Ct. at 3377; State v. Brannam, 855 S.W.2d 563, 570-571 (Tenn. 1993);

State v. Middlebrooks, 840 S.W.2d 317, 338 (Tenn. 1992)).

Notwithstanding its expansion of the Enmund holding, Tison did not relax the

constitutional mandate against the arbitrary administration of the death penalty and,

particularly, did not address the vicarious application of aggravating circumstances.

But see State v. Tison, 633 P.2d 335, 354 (Ariz. 1981), cert. denied, 459 U.S. 882,

103 S.Ct. 180 (1982) (death penalty affirmed to nontriggerman where ‘heinous

atrocious cruel’ and pecuniary gain aggravating circumstances applied vicariously).9

8
Ricky and Raymond Tison, the two defendants in Tison v. Arizona, acc om pan ied by th eir
brother Donald broke their father, Gary, and his cellmate out of the Arizona State Prison. The
fugitives flagged down a passing car occupied by the Lyons family. This family was overtaken,
driven into the desert, ordered out of their car, and forced to stand in front of the headlights. Gary
Tison in structed his sons to retrieve s ome water for the Lyons from the trunk of the veh icle.
There after, Ga ry and his pr isonm ate bruta lly executed the entire L yons fam ily. See Tison v.
Arizona, 481 U.S. at 139-141, 107 S.Ct. at 1678-1679. Notwithstanding the fact that neither
brother w as the trigg erm an, the Su prem e Cou rt affirme d both se ntence s of dea th. Id.

9
We note that the Supreme Court did grant review of the Arizona Supreme Court’s denial
of post-c onviction re lief in the cas e of Rick y W ayne and Raym ond C urtis Tiso n. See Tison, 481
U.S . at 13 7, 10 7 S.C t. at 16 76. A post -con viction petitio n wa s filed by the Tiso n bro thers in
Arizona a lleging that Enmund v. Florida, which had been decided in the interim, required reversal
of the death penalty. A divided Arizona Supreme Court interpreted Enmund to require a finding of
intent to kill, see State v. Tison, 690 P.2d 747 (Ariz. 1984). In granting certiorari, the Supreme
Court limited its review solely to the Arizona court’s interpretation of Enmund .

26
Even though the United States Supreme Court has demonstrated apparent

reluctance to review the issue of vicarious application,10 it has repeatedly

emphasized that, to justify imposition of the death penalty, capital sentencing

decisions must be “an individualized determination on the basis of the character of

the individual and the circumstances of the crime.” Zant v. Stephens, 462 U.S. 862,

879-880, 103 S.Ct. 2733, 2743-2744 (1983) (first emphasis in original) (second

emphasis added). See also Eddings v. Oklahoma, 455 U.S. 104, 110-112, 102

S.Ct. 869, 874 (1982); Enmund v. Florida, 458 U.S. at 798, 102 S.Ct. at 3377;

Lockett v. Ohio, 438 U.S. at 601-605, 98 S.Ct. at 2963-2965 (plurality opinion);

Woodson v. North Carolina, 428 U.S. 280, 303-304, 96 S.Ct. 2978, 2990-2991

(1976) (plurality opinion); Proffit v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969

(1976). The Edmund-Tison holding addresses only whether a non-triggerman may

be sentenced to death; it does not address whether the conduct of the triggerman

may be used to aggravate the sentence of the non-triggerman. Thus, our inquiry

must necessarily begin where Edmund-Tison ends.

Although a defendant may be death eligible following a determination of

“major participation combined with reckless indifference to human life” under

Enmund-Tison, the question remains whether an aggravating factor may be applied

vicariously to a defendant if he was not the actor responsible for the particular

aggravating circumstance. In this regard, there is no Tennessee case that has

decided the issue of whether a convicted murderer, who took no part in the killing

itself and was unaware as to how it was to be accomplished, can be sentenced to

death based upon the “heinous, atrocious, and cruel” aggravating circumstance. In

the felony murder context, the Tennessee Supreme Court has impliedly upheld the

vicarious application of the heinous, atrocious, and cruel aggravator. See Blanton,

975 S.W.2d at 279-280 (‘heinous atrocious cruel’ factor upheld as applied to

10
The United States Supreme Court has been presented the issue of vicarious application
of a statu tory aggra vating circu msta nce on other oc casions and has denied re view. See, e.g.,
Herrera v. Arizona, 510 U.S . 951, 114 S.Ct. 398 (1993).

27
premeditated murder convictions based on sufficiency of evidence despite no

evidence that defendant was perpetrator who inflicted fatal blows); State v. West,

767 S.W.2d 387, 389, 396-397 (Tenn. 1989), cert. denied, 497 U.S. 1010, 110 S.Ct.

3254 (1990) (aggravating circumstances, (i)(5), (i)(6), and (i)(7), applied to

defendant in capital case based upon finding of major participation and reckless

indifference). 11 We conclude that a non-triggerman defendant can be held

vicariously liable for an aggravating circumstance following an Enmund-Tison

determination.

In the case sub judice, the appellant is death eligible under Enmund-Tison.

See State v. Johnson, 762 S.W.2d 110, 120 (Tenn. 1988), cert. denied, 489 U.S.

1091, 109 S.Ct. 1559 (1989) (finding that Eighth Amendment does not prohibit

death penalty in case of defendant whose participation in felony resulting in murder

is major and whose mental state is one of reckless indifference). The appellant

willingly and knowingly associated herself with others for the purpose of effecting a

premeditated murder upon her husband resulting in his heinous, atrocious, and

cruel death. The proof gleaned from her confession and testimony of eyewitnesses

demonstrated that she repeatedly gave several men large sums of money to

11
This co urt has a lso addre ssed s imilar issu es. See State v. Stacy Dewayne Ramsey,
No. 01C 01-941 2-CC -00408 (Tenn . Crim. A pp. at Na shville, May 1 9, 1998) , perm. to appeal
denied, (Tenn. Jan. 25, 1999) (life without parole upheld distinguished from principle announced
in Omelus becau se of de fendan t’s active pa rticipation in plan ning and nature o f killing); Jeffrey
Stuart D icks v. Sta te, No. 03C01-9606-C C-00231 (Te nn. Crim. App. at Knoxville, Mar. 17, 1998),
perm. to appeal granted, (Tenn . Sept. 21, 1 998), certiorari dismissed as moot, (Tenn. June 21,
1999) (recognizing principle stated in Omelus but distinguished because defendant present at
crime scene ); W illiam E. G roseclo se v. State , No. 02C01-9407-CR-00145 (Tenn. Crim. App. at
Jack son, Au g. 23, 199 5), perm. to appeal denied, (Te nn. 1 996 ) (dis tingu ishe d fro m h olding in
Omelus because defendant actively involved in planning of murder or knew how contract killer
was going to com mit murder).
Other fe deral and state cou rts have a lso addre ssed th is issue. See, e.g., W hite v.
Wainwright, 809 F.2d 1478, 1485 (11th Cir. 1987) (death penalty upheld based upon vicarious
application of heinous, atrocious cruel factor since defendant was arm ed and on scene as active
participan t in robbery); Ex parte Bankhead, 585 So. 2d 112, 125 (Ala. 1991) (‘heinous atrocious
cruel’ aggravating circumstance upheld based on manner of killing and not on defendant’s actual
participation ); Hane y v. State, 603 So. 2d 368, 380-381, 385-387 (Ala. Crim. App. 1991) (appellant
admitted paying co-defendant to kill her husband and giving him instructions on how to approach
her hom e without b eing obs erved); Fox v. S tate, 779 P.2d 562, 578 (Okla. C rim. Ap p. 1989) , cert.
denied, 494 U.S. 1060, 110 S.Ct. 1538 (1990) (death penalty supported by evidence that
defendant armed himself with shotgun and shells before robbing grocery store with codefendant
where th ree peo ple were killed). But see Omelus, 584 So. 2d at 563 (defendant who hired
contract killer cannot be held vicariously responsible under ‘heinous atrocious cruel’ factor).

28
effectuate that criminal purpose. She supplied these men with photographs of her

husband, his car, and their home, as well as a diagram of his parking space at work.

Moreover, she personally drove her codefendant by her home and her church

ordering him to make the crime appear to be a burglary/robbery. She gave her

codefendant a key to her house, met with him the afternoon of the murder, and went

to church with her husband that evening. The appellant refused to allow her

children to remain at church with their father to play basketball that evening; she

took them to her sister’s home and played games in order for the murder to occur.

Upon her later arrival at her home, despite obvious signs of the crime, she allowed

her children to enter into the house to find their murdered father. This proof evinces

the appellant’s participation combined with reckless indifference. Accordingly, the

appellant is death eligible under Enmund-Tison.

Eligibility for capital punishment via vicarious liability, however, is not

absolute; rather, it is subject to statutory limitations. Tennessee has chosen to

constitutionally narrow the class of death eligible defendants by statutorily

enumerating a number of specific aggravating circumstances and expressly

requiring the finding of at least one aggravating circumstance beyond a reasonable

doubt before the death penalty can be imposed. See Tenn. Code Ann. § 39-2-

203(g) (1982); see also Middlebrooks, 840 S.W.2d at 344.12 In the present case,

the State must prove that “[t]he murder was especially heinous, atrocious, or cruel in

that it involved torture or depravity of mind.” Tenn. Code Ann. § 39-2-203(i)(5)

12
This holding does not conflict with the decision of our supreme court in Middlebrooks,
840 S.W.2d at 317, which addressed the use of aggravating circumstances to narrow the death-
eligible class to those d efenda nts for wh om im position of the death penalty is m ost app ropriate. In
Middlebrooks, the court held that because the felony murder aggravating circumstance, Tenn.
Code Ann. § 39-2-203(i)(7), essentially duplicated the elements of the offense of first degree
murder, it failed to narrow the population of death-eligible felony murder defendants as required by
Article 1, Section 16 of the Tennessee Constitution. Thus, by eliminating felony murder as an
aggrav ating circu msta nce in first d egree fe lony mu rder con victions, Middlebrooks has
accomplished two results. First, it created a new category of defendants who are immune from
the imposition of the death penalty in cases where the defendant is charged with felony murder
and the o nly aggrava ting circum stance is the und erlying felony. See How ell, 868 S.W.2d at 267
(Reid, C .J., concu rring), cert. denied, 510 U.S. 1215 , 114 S.Ct . 133 9 (19 94). S eco nd, it
elim inate s felo ny m urde r as a n agg rava ting c ircum stan ce in s elec ting th ose deat h eligib le
defendants who are most deserving of the sentence of death in those cases where other
aggrav ating circu msta nces a re prese nt. Id.

29
(emphasis added), in order to establish the presence of the aggravating

circumstance at issue. The plain language of this provision, “read in context of the

entire statute, without any forced or subtle construction which would extend or limit

its meaning,” see generally State v. Cauthern, 967 S.W.2d 726, 735 (Tenn. 1998),

cert. denied, -- U.S. --, 119 S.Ct. 414 (1998); State v. Johnson, 970 S.W.2d 500,

505 (Tenn. Crim. App. 1996), perm. to appeal denied, (Tenn. 1997), clearly focuses

on the murder itself and not the defendant’s own actions or intent. Cf. State v. Hall,

976 S.W.2d 121, 134 (Tenn. 1998), cert. denied, -- U.S. --, 119 S.Ct. 1501 (1999)

(plain language of (i)(8) aggravator, during defendant’s escape from lawful custody,

adhered to in construing legislative intent). After examination of this issue, we

conclude that it was the legislature’s intent that the (i)(5) aggravator impute liability

upon a defendant for conduct for which he or she is criminally responsible. This

aggravator, by its plain language, clearly encompasses consideration of the nature

and circumstances of the crime itself, which would permit such a vicarious

application.13 Cf. Ex parte Bankhead, 585 So. 2d at 125 (‘heinous atrocious cruel’

aggravating circumstance upheld based on the manner of killing and not on

defendant’s actual participation). The emphasis in the (i)(5) aggravator is on the

manner of killing, not on the defendant’s actual participation. When the defendant

contracts for another to commit murder and that murder is committed in a heinous,

atrocious, and cruel manner, we conclude that this aggravator may appropriately be

applied in imposing a sentence of death. We hold that the factual application of the

heinous, atrocious, and cruel aggravating circumstance is supported by the proof in

this case. This issue is without merit.

13
Certain aggravators focus clearly on the defendant’s own actions or intent and
contemplates considerations on the defendant’s individual actions in determining the most
culpable capital defe ndants . See Tenn. Code Ann. § 39-2-203(i)(2) (defendant history of violent
felonies); -203(i)(3) (defendant created risk of death to others); -203(i)(4) (defendant committed
murder for remuneration); -203(i)(12) (defendant committed mass murder). Alternatively, other
statutory aggravators, by their plain language, clearly encompass consideration of the nature and
circu ms tanc es of the c rim e itse lf, perm itting vicarious application . See Tenn. Code Ann. §§ 39-2-
203(i)(1) (murder committed against person under 12); -203(i)(5) (murder was especially heinous,
atrocious , or cruel); -2 03(i)(6) (m urder co mm itted for purp ose of a voiding arr est or pro secution ); -
203(i)(7) (murder committed while defendant was engaged in enumerated felony); -203(i)(8)
(murder committed while in custody or during escape therefrom); -203(i)(9) (murder committed
against law enforce men t officer); -20 3(i)(10) (m urder co mm itted agains t judge/dis trict attorney); -
203(i)(11 ) (mu rder com mitted a gainst elec ted official).

30
 Within this challenge, the appellant citing Wade v. Calderon, 29 F.3d 1312,

1320 (9th Cir. 1994), cert. denied, 513 U.S. 923, 115 S.Ct. 923 (1995), contends

that the (i)(5) aggravator is unconstitutionally vague because it failed to instruct that

the appellant intended to inflict serious physical abuse. First, we note that the (i)(5)

aggravator at issue in this case does not contain any reference to serious physical

abuse but is related to torture and depravity of mind. Compare Tenn. Code Ann. §

39-13-204(i)(5) (1997 & Supp. 1998) and Tenn. Code Ann. § 39-2-203(i)(5) (1982)

(repealed 1989). Moreover, we are not bound by the decisions of the federal circuit

courts but only by decisions of the United States and Tennessee Supreme Courts.

See State v. Middlebrooks, No. 01S01-9802-CR-00017 (Tenn. July 6, 1999) (for

publication) (citing State v. McKay, 680 S.W.2d 447, 450 (Tenn. 1984)); State v.

Strouth, No. 03S01-9707-CC-00079 (Tenn. Jun. 28, 1999) (for publication).

Nevertheless, the supreme court of this state has repeatedly upheld the validity of

the (i)(5) aggravating circumstance when challenged for vagueness. See e.,g.,

Strouth, No. 03S01-9707-CC-00079; Blanton, 975 S.W.2d at 280; Hartman v. State,

896 S.W.2d 94, 105 (Tenn. 1995); State v. Black, 815 S.W.2d 166, 181 (Tenn.

1991); State v. Thompson, 768 S.W.2d 239, 252 (Tenn. 1989); State v. Barber, 753

S.W.2d 659, 670 (Tenn. 1988). Additionally, the supreme court has held that intent

is irrelevant in the (i)(5) aggravating circumstance because the focus remains on the

circumstances of the killing. State v. Carter, 988 S.W.2d 145, 150 (Tenn. 1999)

(citing Blanton, 975 S.W.2d at 269). Accordingly, this issue is without merit.

V. Unconstitutional Duplication of the Remuneration Aggravator

The appellant argues that the evidence used to convict her as an accessory

before the fact to first-degree murder duplicated that used to support the (i)(4)

aggravating circumstance. See Tenn. Code Ann. §39-2-203(i)(4) (1982) (repealed

1989).14 She argues that this duplication of facts to support both the conviction and

14
"The defendant committed the murder for remuneration or the promise of remuneration,
or em ployed ano ther to com mit the m urder fo r rem uneration or the pro mise of rem uneration .”

31
the sentence does not sufficiently narrow the class of death eligible defendants in

violation of the 8th and 14th Amendments to the United States Constitution and

Article I, §§ 8 and 16 of the Tennessee Constitution. She contends that the (i)(4)

aggravating factor falls under Middlebrooks, 840 S.W.2d at 317, as duplicating the

offense for which she was found guilty. The appellant’s argument is misplaced and

fails because this is simply not a Middlebrooks issue as was stated by the supreme

court in State v. Stephenson, 878 S.W.2d 530, 557 (Tenn. 1994).

The appellant attempts to distinguish her case from Stephenson on the basis

that the defendant’s conviction was based upon only the elements of first degree

murder and the (i)(4) aggravating circumstance narrowed the class of death eligible

defendants in that case because at the sentencing phase the prosecution had to

additionally prove that the defendant hired someone to kill her husband. Id. Her

case, she argues, found her guilty of hiring a codefendant to kill her husband and

then was sentenced on the same basis without the prosecution having to prove

anything else. However, the appellant ignores the fact that not only was

Stephenson convicted of first degree murder, his conviction was also based upon

the criminal responsibility statutes. See Tenn. Code Ann. § 39-11-402(2). 15

In Stephenson, the supreme court held that the (i)(4) aggravator sufficiently

narrowed those death eligible defendants because it provides a “principled way in

which to distinguish the cases in which the death penalty is imposed from the many

cases in which it is not. . . .” Stephenson, 878 S.W.2d at 557. The court further

reasoned:

The aggravating circumstance - the defendant employed another to
commit the murder for remuneration or the promise of remuneration-

15
A person is criminally responsible for an offense com mitted by the conduct of another if:
Actin g with inten t to pro mo te or a ssis t the c om mis sion of the offe nse , or to b ene fit
in the proceeds or results of the offense, the person solicits, directs, aids, or
attem pts to aid an other pe rson to c omm it the offens e. . . . See Tenn. Code Ann.
§ 39-11-402(2).

32
 does not duplicate the elements of the offense, even incorporating the
criminal responsibility statutes. Constitutional narrowing is
accomplished because at the sentencing hearing, the State was
required to prove that this defendant hired someone to kill his wife.
Obviously, not every defendant who is guilty of first-degree murder
pursuant to the criminal responsibility statutes has also hired another
or promised to pay another to commit the murder. Thus, the
aggravating circumstance found by the jury in this case narrows the
class of death-eligible defendants as required by State v.
Middlebrooks, supra.

Id. at 557 (emphasis added). See also Richard H. Austin v. State, No. 02C01-9310-

CR-00238 (Tenn. Crim. App. at Jackson, May 3, 1995), perm. to appeal denied,

(Tenn. Nov. 6, 1995).

The appellant was convicted of accessory before the fact to first-degree

murder. Accessory before the fact was defined as “any person who shall feloniously

move, incite, counsel, hire, command, or procure any other person to commit a

felony, is an accessory before the fact.” Tenn. Code Ann. § 39-1-301 (1982)

(repealed 1989).16 This definition was replaced by the criminal responsibility

provisions of Tenn. Code Ann. § 39-11-402(2). Thus, we conclude that we are

bound by the supreme court’s decision in Stephenson that the (i)(4) aggravator

achieves the constitutionally required narrowing of the death eligible defendants

even where the conviction is predicated on a criminal responsibility theory.

Accordingly, this issue is without merit.

VI. Reasonable Doubt Jury Instructions

Next, the appellant challenges the constitutionality of the reasonable doubt

jury instruction given at both stages of the trial including the language “moral

certainty” which he contends falls below the requirements of the Due Process

Clause. This argument had been rejected on numerous occasions. State v.

Nichols, 877 S.W.2d 722, 734 (Tenn. 1994), cert. denied, 513 U.S. 1114, 115 S.Ct.

909 (1995); Pettyjohn v. State, 885 S.W.2d 364, 365-66 (Tenn. Crim. App.), perm.

16
Existing at the date of this offense, an accessory before the fact was deemed a principal
offend er and p unished as suc h. See Tenn . Code A nn. § 39- 1-302 (1 982)(re pealed 1 989).

33
to appeal denied, (Tenn. 1994); State v. Hallock, 875 S.W.2d 285, 294 (Tenn. Crim.

App. 1993), perm. to appeal denied, (Tenn. 1994). See also Austin v. Bell, 126 F.3d

843, 846-47 (6th Cir. 1997), cert. denied, -- U.S. --, 118 S.Ct. 1526 (1998).

VII. Constitutionality of the Death Penalty

The appellant concedes that the constitutionality of the death penalty has

been upheld by the Tennessee Supreme Court, however, she raises the following

issues in order to preserve them for later review. The appellant contends that (1)

the death penalty statute fails to meaningfully narrow the class of eligible

defendants17; (2) the prosecution has unlimited discretion in seeking the death

penalty; (3) the death penalty is imposed in a discriminatory manner based upon

economics, race, and geography; (4) there are no uniform standards for jury

selection; (5) juries tend to be prone to returning guilty verdicts; (6) the defendant is

denied the opportunity to address the jury’s popular misconceptions about parole

eligibility, cost of incarceration, deterrence, and method of execution; (7) the jury is

instructed it must unanimously agree to a life sentence, and is prevented from being

told the effect of a non-unanimous verdict; (8) courts fail to instruct the juries on the

meaning and function of mitigating circumstances; (9) the jury is deprived of making

the final decision about the death penalty; and (10) electrocution is cruel and

unusual punishment.

These issues have repeatedly been rejected by our supreme court. See

State v. Smith, 893 S.W.2d 908 (Tenn. 1994); State v. Brimmer, 876 S.W.2d 75

(Tenn. 1994); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994); State v. Smith, 857

S.W.2d 1 (Tenn. 1993); Black, 815 S.W.2d at 188-190; State v. Boyd, 797 S.W.2d

589 (Tenn. 1990); State v. Teel, 793 S.W.2d 236 (Tenn. 1990); Thompson, 768

17
W ithin this issue the appellant challenges Ten n. Code Ann. § 39-3-20 3(i)(2), (i)(5), (i)(6),
and (i)(7). In th is case, th e State on ly relied upon T enn. Co de Ann . § 39-3-2 03(i)(4) an d (i)(5).
Therefore, the appellant is without standing to challenge (i)(2), (i)(6), and (i)(7). The
constitutionality of (i)(5) is addressed previously in this opinion.

34
S.W.2d at 252-253. See also State v. Keen, 926 S.W.2d 727 (Tenn. 1994).

VIII. Conclusion

For the foregoing reasons, we affirm the judgment of the Shelby County

Criminal Court denying post-conviction relief.

IT IS ORDERED that the appellant’s sentence of death by electrocution shall

be carried out in the manner provided by law on December 10, 1999, unless

otherwise stayed by an appropriate order.

____________________________________
DAVID G. HAYES, Judge

CONCUR:

________________________________________
DAVID H. WELLES, Judge

________________________________________
NORMA MCGEE OGLE, Judge

35