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

6
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

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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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