Irick v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
JULY SESSION, 1997 January 14, 1998

Cecil Crowson, Jr.
Appellate C ourt Clerk

BILLY RAY IR ICK, ) C.C.A. NO. 03C01-9608-CR-00304
)
Appe llant, )
) KNOX COUNTY
)
V. )
) HON. RAY L. JENKINS, JUDGE
STATE OF TENNESSEE, )
) (POST-CONVICTION
Appellee. ) (DEATH PENALTY)

FOR THE APPELLANT: FOR THE APPELLEE:

DOUGLAS A. TRANT JOHN KNOX WALKUP
900 South Gay Street Attorney General & Reporter
Ste. 1502, Riverview Tower
Knoxville, TN 37902 AMY L. TARKINGTON
Assistant Attorney General
T. HAROLD PINKLEY 2nd Floor, Cordell Hull Building
CHIMBLISS & BAHNER 425 Fifth Avenue North
1000 Tallan Building Nashville, TN 37243-0943
Two U nion Squa re
Chattanooga, TN 37402 RANDALL EUGENE NICHOLS
District Attorney General

ROBERT L. JOLLEY, JR.
Assistant District Attorney General
400 Main Street
P.O. Box 1468
Knoxville, TN 37901

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
 OPINION
The Petitioner, Billy Ray Irick, appeals as of right pu rsuan t to Ru le

3 of the Tenn essee R ules of Appe llate Procedure from the denial of his petition

for post-conviction relief by the Knox County Criminal Court. He argues that he

received the ineffective assistance of coun sel, tha t the sta te’s violation of its d uty

under Brady v. Maryland warrants a new trial, a nd that his senten ce of dea th

must be put aside because the four aggrava ting circumstan ces found b y the jury

were invalid.

After a thorough review of the record, including the trial transcript

and the evidentiary hearing on the post-conviction petition, we are of the opinion

that the Petitioner receive d the effective assistance of counsel; that the Petitioner

failed to prove a Brady violation; and that the on ly invalid aggravating factor,

the felony-m urder ag gravating circums tance, was harmless beyond a reaso nable

doubt. The trial court’s denial of the P etitione r’s petition is the refore affirm ed.

PROCEDURAL HISTORY

The Petition er was convic ted in 1987 of felony murder and two

counts of aggra vated rap e. He wa s senten ced to de ath by electrocution for the

felony murder conviction and to forty (40) years as a Range II esp ecially

aggravated offender on each charge of aggravated rape, to be served

conc urren tly with each other and consecutively to the death sentence.

Specifically, in imposing the death penalty, the jury found the presence of the

following four aggravating circums tances: (1) Th e victim was less than twelve

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(12) years of age and the defendant was eighteen (18) years of age or older; (2)

the murder was especially heinous, atrocious, or cruel in that it involved torture

or depravity of mind; (3) the murder was committed for the purpose of avoiding,

interfering with, or preventing a lawful arrest or prosecution of the defendant; and

(4) the murder was committed while the defendant was engaged in committing

the felony of rape. T .C.A. § 3 9-2-203 (i)(1), (5), (6) an d (7).

The Tennessee Supreme Court affirmed the Petitione r’s convictions

and sentences on direct appeal. State v. Irick, 762 S.W .2d 121 (Te nn. 1988),

cert. denied, 489 U.S. 102, 109 S. Ct. 1357, 103 L. Ed. 2d 825 (1989). The

Supreme Court’s opinion p rovides the following s ynopsis of the evidence

prese nted a t trial:

In summary, the State’s proof was that Billy Ray Irick
was a friend of the child’s mother and step-father. He
had lived with them for a time, often caring for the five
(5) young children in the family while the Jeffers were
working. At the time of the incide nt the Jeffers were
separated. Mr. Jeffers and the defendant were living
with Jeffers’ mother. On the night of the occurrence
Mrs. Jeffers left defendant with the children when she
went to work. Sh e was som ewha t unea sy abo ut this
because defendant had been drinking, although he did
not seem to be in toxicated. He was in a bad mood
because he ha d bee n in an argum ent with Mr. Jeffers’
mother earlier in the day. He did not want to keep the
children since he planne d to leave Knox ville for V irginia
that night. Mrs. Jeffers called her husband at the truck
stop where h e worke d to tell him o f her fears. He
reassured her an d said he would check on the children.

About midnight Mr. Je ffers received a telephone
call from Iric k telling him to come home, suggesting
there was something wrong with the little girl, saying, “I
can’t wake her up.” When Jeffers arrived at the house
defendant was waiting at the door. The c hild was lying
on the living room floor with blood between her legs.
After ascertaining she still had a pulse, Jeffers wrapped
her in a blanket and took her to Child ren’s H ospita l.

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 Efforts to resuscitate her there failed and she was
pronounc ed dead a short time later.

Physical examin ations of her body at the hospital
emergency room and during the autops y were
indicative of asphyxiation or suffocation. The cause of
death was cardiopulmonary arrest from inadequate
oxygen to the heart. There was an abrasion to her
nose near one eye and lesions on her rig ht chin
consistent with teeth or fingernail marks. Blood was
oozing from her vagina, which had suffered an extreme
tear extending into the p elvic region. There were less
severe lacerations around the op ening of her re ctum in
which semen and pubic hair were found. These
injuries were consiste nt with penetration of the vagina
and an us by a p enis.

Irick, 762 S.W.2d at 133-34.

The Petitioner filed his petition fo r post-co nviction relief on May 5,

1989. After counse l was appointe d to represen t the Petitioner, the petition was

amended on num erous occasions. The hearing on the petition was held in the

trial court on November 30, 1995, December 1, 1995, and December 14, 1995.

The trial court dismissed the petition on April 1, 1 996, issu ing a state ment o f its

finding of fa cts and c onclusio ns of law.

The trial court found: (1) that the Petitioner was afforded the effective

assistance of counsel; (2) that no Brady violations were proven and nothing was

introduced to show the alleged violations were material to his punishment; (3)

that the sentence was not a violation of the Double Jeopardy clause; (4) that the

claims concerning the flight instruction and appea rance b efore a M agistrate were

waived because there was no objection at trial or on direct appeal; (5) that the

“heinous, atrocious or cruel” aggravating circumstance is constitutional; (6) that

Ten ness ee’s death penalty is not cruel and unusual punishm ent; (7) that the

court’s failure to allow polygraph evidence was not a violation of due process; and

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(8) that the Middlebrooks error w as ha rmles s. The Petition er time ly filed his

notice of a ppeal.

POST-CONVICTION EVIDENTIARY HEARING

At the post-conviction evidentiary hearing , Jimmy R ay Morris, a

polygraph examiner, was allowed to testify for the Petitioner as an offer of p roof.

He stated that he was asked by Detective Wiser to perform a polygraph

examination on Kenneth Jeffers, the victim’s stepfather, on April 16, 1985. The

examination was cond ucted and M r. Jeffers was asked two questions concerning

whether he had done anything physica lly to the victim to cause he r death. Mr.

Jeffers respon ded tha t he had not, and Mr. Morris stated that his conclusion had

been that Mr. Jeffers was no t telling the truth . A copy of Mr. Morris’s report was

introduced into evidence.

On cross-exa mination , Mr. Morris stated tha t he did no t recall at what

time of the day the exam had been given but that it had been given the day after

the victim was murdered. He admitted that he did not kno w whether M r. Jeffers

might have given a poor response because of the guilt he was experiencing for

leaving his stepda ughter with the P etitioner.

Don ald Wis er, a detective with th e Kno xville Po lice De partm ent in

April 1985, testified that he had reques ted that a polygraph test be conducted on

Mr. Jeffers because W iser ha d inform ation th at whe n Mr. J effers h ad lived in

Clinton, Tennessee, he had been under investigation for abusing his natural

children. Wh en question ed conce rning whethe r there had be en any proble m

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when Detective Wiser took the Petitioner’s statement, the state objected on the

ground that the issue of the admissibility of the statement had been raised and

refuted on direct appeal. However, as an offer of proof, Wiser testified that when

he had taken the statement, he, himself, had been very tired and the Petitioner

had been ve ry emo tional. He a dmitted that he ha d been under p ressure to

comp lete the investigation in this case and that he wished he had gone b ack to

the area wh ere the P etitioner alleged he ha d spent the nig ht after the murd er.

Detective Wis er iden tified ph otogra phs o f the victim ’s “very unkem pt, nasty”

resid ence, taken on the night of the incident, and the photographs were

introduced into evidence. Wiser then testified concerning a conversation he had

with Robe rt Holt, the F .B.I. serolog ist, in which Mr. Holt ha d state d that h e cou ld

not offer a definite opinion concerning blood evidence.

The Petitioner, Billy Ray Irick, testified that he had not raped and

killed the victim. He stated that he had been incarcerated a week prior to being

taken before a ma gistrate. H e testified tha t what he had sa id in his state ment

was not the truth because he had felt there w ere only two w ays he w as going to

come out of the room in which he wa s being que stioned, “either I tell them what

I [sic] wanted or I was going to be coming out feet first.” He stated that he had

been told by h is initial attorneys that if he had a preliminary he aring, the court

could find him guilty and send him to the electric chair, and because of that

advice, he waived his right to a preliminary hearing.

The Petitioner testified that new counsel had been appointed and

that these atto rneys ha d sugg ested tha t he utilize an insanity de fense, b ut that

when he refused to “go along with them,” they would not talk with him. He stated

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that he had met with counsel only three or four times prior to trial and that he had

mentioned that he wanted a DNA analys is but th at his attorne ys had treated him

like he did not kno w what h e was ta lking abo ut. He also testified that his

attorneys had suggested that he not testify at trial even though it was h is desire

to do so. Mr. Irick claimed that his attorne ys had never ques tioned him

concerning any head injuries he had previously experienced and that he had

never be en ask ed abo ut blood o r hair testing .

On cross-examination, the Petitioner was questioned as to how his

pubic hair had been found in the victim’s rectum, and he replied that he did not

know that the hair was his. He admitted that no one had specifically threatened

him during questioning, but because of the actions of the police, he had been

frightened. He admitted that he had never told his attorne ys that he had lied to

the police but stated that when his a ttorney s had show n him his stat eme nt in

which he had admitted killing the victim, he had told them that he had not

committed the crime. He testified that he was not sure why he had run away on

the night of the m urder.

In desc ribing his recollection of the events occurring on the day of

the murder, the Petitioner stated that when he had arrived at the victim’s house,

he had go ne “out back” to drink beer and had smoked marijuana with a friend.

He testified that Ms. Jeffers went to work, Mr. Jeffers left shortly thereafter, and

he remained at the house alone with the Jeffers’ children. He put the children

to bed and laid on the couch to watch television. Sometime during the evening,

the victim c ame to the livin g room and to ld him that she was sick. The Petitioner

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told her to “go back and lay down in daddy’s bedroom” because that would be the

first place w here M s. Jeffers w ould find h er.

Later, the Petitioner observed that the dog had come in. He stated

that he had wondered how the dog had gotten in and that he had gone to the

back door, noticing that something was not right because the back door was

“wide open.” He shut the back door and when he pass ed be side th e room in

which the victim was lying down, he stated that he observed the victim was not

breathing because she always sn ored. He the n called Mr. Jeffers and attempted

to cond uct CP R on the victim.

When questioned as to how blood had gotten inside the crotch of his

pants, the Pe titioner sta ted that it may have gotten there when he picked the

victim up from the bed. He testified that h e left when Mr. Jeffers arrived because

he was scared. When questioned as to why he had told his attorneys that he did

not remember what had happened on the night of the murder, he stated that he

could not remember everything but did rem emb er telling his atto rneys that he did

not commit the crime. When questioned as to why he told police in his statement

that “when I los t it, it was when I raped her,” he answered only that he did not

rape the victim. He admitted that in his statement he had told Officer Wiser that

he had not bee n threate ned or c oerced into mak ing the sta temen t.

Pam ela Mary Auble, a clinical neuropsychologist, testified that she

was asked to evalua te the Pe titioner to determ ine the po ssibility that he suffered

from some type of brain damage and to determine his personality structure . She

stated that either she or others workin g under he r supervision had spent twenty-

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one (21) hours with the Petitioner and had examined records from Home for

Children, the Mental He alth Center, Kn oxville Orthopedic C linic, Lakeshore

Psych iatric Hospital, the Army, and the Petitioner’s GED. She also obtained and

examined record s from We st Kno xville Neurological Associates, Dr. Diana

McCoy, Fort Sanders Regional Medical Center, and the Helen Ross McNabb

Center. She stated that she had relied upon these records and her evaluation of

the Petitioner in makin g her co nclusion s. The s tate objec ted to the relevance of

her testimony since her evaluation was conducted after the Petitioner had been

convicted of the crime. The objection was sustained, but as an offer of proof, she

stated that from the ea rlier reco rds sh e had review ed, the poss ibility of bra in

damage had been raised in an evaluation conducted by the Mental Health Center

when the Petitioner was six yea rs old. The possibility was raised again when the

Petitioner was hospitalized at Lakeshore Psychiatric Hospital when the Petitioner

was eight yea rs old. Th e Petitione r’s diagno sis at that time w as ch ronic b rain

syndrom e of unkn own or u nspec ified origin with behavio ral reaction .

Dr. Auble testified concerning the Petition er’s m other’s difficult

pregnancy with the Petitioner and the fact that the Petitioner had been a “blue

baby.” As a child, reports showed that the Petitioner was passive and

unresponsive, a pattern indicative of brain damage. Ms. Auble testified that from

the test results obtained from the Petitioner, he had particular difficulty with tasks

which required him to modulate his behavior and to regulate his actions. She

stated that he ac ts imp ulsively and without regard for the consequences and has

major difficulties with relationships.

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 In response to questioning conce rning th e Petitio ner’s m ental health,

Dr. Auble testified that he had suffered emotional damage as a child. When he

was three years old, he began exh ibiting behavioral hype ractivity and told others

that his mo ther tied him up and abused him. At the age of six, he began a lifetime

of outpatien t psycho logical trea tment. H e was h ospitalized for a year at

Lakesho re Hospital when he was eight years old, and from there, he was se nt to

a children’s home in Sevierville, Tennessee. During the next five years, his

parents were not involved in his treatment, and when he was sent home for

summer vacation in 1972, he report edly chopped the television set with an a x,

clubbed flowers in the flower bed, cut up his sister’s paja mas, a nd set fires to

wasteb askets. In July he was returned to the children’s home, where he broke

a window and climbed into a young girl’s bedro om. He wa s chase d away, b ut a

knife was later found in the bed. He was then readmitted to Lakeshore

Psychia tric Hosp ital where h e was g iven Th orazine , a major tranquilize r.

Dr. Auble’s test results also indicated that the Petitioner has no

empathy with other people, that he does not know how to form relationships, and

that he does not know how to show anger in a modulated way. His intellectual

functionin g was in th e low ave rage ran ge.

Dr. Auble concluded that based upon the Petitioner’s history and

current evaluation, he su ffers from a serious mixed personality disorder and that

brain dam age c ould n ot be ru led ou t. She a lso sta ted tha t the Pe titioner’s

statem ent to the police would be consistent with his mental condition in that he

would be respon sive to people structuring the situation for him in asking yes-no

questions and would answer accordingly. She testified that the Petitioner’s flight

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after the death of the victim was consistent with his behavioral pattern of leaving

the situation in times of stress.

Dr. Auble testified that in reviewing the Petitioner’s jail records, of

significance were two instances whereby the Petitioner attempted suicide. On

one occasion he cut his wrists with a steel shank and on the other he was

observed beating his head on the floor. T he jail reco rds were introduce d into

evidenc e.

Dr. Auble also reviewed the Petitioner’s medical records from the

Prison Health Servic es an d con clude d that o ther tha n the s uicide attempts, he

had adjusted well to prison life. A psychiatrist and a psychologist had seen him,

and they had not seen the nee d to force h im to hav e treatm ent. These records

were made e xhibits. Finally, Dr. Auble reviewed materials provided to her by Dr.

McCoy. The m aterials cons isted o f two pre trial drawings and writings of the

Petitioner on why he hates people and his war on life. These were also

introduced into evidence.

On cross-examination, Dr. Auble admitted that the Petitioner had

once obtained an IQ test score of 107. She admitted that the file she had

reviewed contained a letter stating that the records had been made available to

the Petitioner’s original trial counsel on November 18, 1985. Counsel was also

allowed acce ss to re cords conc erning the Petitioner’s pas t social history,

espe cially those in which the Petitioner had behaved inapp ropria tely. Dr. A uble

admitted that the Petitioner had denied that he had ever been hospitalized or

had ever suffered from depression or any mental condition when he had enlisted

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in the United States Army. Dr. Auble also acknowledged that included in the file

she had reviewed was an emergency room summary by a Dr. Turner who had

examined the Petition er on Ap ril 16, 1985 , the day following the murder of the

victim, and ha d found some dark spo ts on the Petitioner’s scrotum. The doctor

had concluded that he could not determine whether the spots were b lood o r stool.

Dr. Au ble also admitted that the file contained a neuropsychological evaluation

conducted by Emily Oglesby prior to trial in which Dr. Oglesby concluded that she

could not rely on the test results because the Petitioner had cooperated poorly

and had d emons trated loud and insistent behavior.

The state referred Dr. Auble to numerous instances in records from

the Helen Ross McNabb Center in which the Petitioner had mocked the

dece ased ’s family, had described himself as dangerous, and had admitted that

he had been enraged at the stepfather of the victim for making him babysit on the

evening of the murde r. The state also n oted reports from Dr. Tennys on and D r.

Dye which found the Petitioner antisocial, schizoid, narcissistic, and histrionic and

concluded that his forgetfulness was not supported by indications of any linked

psychopathology or neurological illness.

Dr. Auble admitted that the Petition er’s score on the “fake scale” of

the Minnesota Multiphasic Personality Inventory had been high enough to be

significant. It was her opinion a high score on this scale indicated the possibility

that the Petitioner h ad be en exa ggera ting or th at he w as se riously e motio nally

disturbed. She c onclu ded th at bas ed up on oth er test re sults a nd the Petition er’s

history, serio us em otional distu rbance was the cause of this high fa ctor.

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 Dr. Auble also admitted that the records reflected that based upon

tests completed in Janua ry 1967, a prior diagnosis of chronic brain syndrome had

been changed to situational reaction of c hildho od at L akes hore P sychia tric

Hosp ital. Dr. Auble stated, howeve r, that when she was com pleting her report

on the Petitioner she had reviewed all of the Petitioner’s records and had reached

the conc lusion that he poss ibly suffe red fro m org anic brain dysfunction. The

Petitione r then de clared tha t he had conclud ed his pro of.

The state called as its first witness Randy Reagan, initial counsel for

the Petitioner. Mr. Reagan testified that he had been appointed to represent the

Petitioner at his pre limina ry hea ring in 1985 but that the preliminary hearing had

been waived because of a concern over pretrial publicity. He also testified that

because the preliminary hearing was waived, defense counsel was allowed to

review photographs that were taken and was supplied with the witness

statements. He recalled talking to the Petitioner concerning the prelim inary

hearing and testified that his practice at that time would have been to discuss the

pros and cons of the hearing with the Petitioner to make sure the Petitioner

unders tood why a defen dant would h ave a prelimina ry hearing and why a

defendant would waive a preliminary hearing. When question ed as to whether

he threa tened th e Petitione r by telling him that he w ould go to the ele ctric chair

if he had a preliminary hearing, Mr. Reagan stated that he definitely would not

have thre atened the Petition er in that m anner.

On cross-examination, Mr. Reagan was shown numero us exhib its

including a list of que stions purpo rtedly sent to the pro secu tor from the victim ’s

mother which impliedly implicated the victim’s stepfather. He was also shown

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several DHS reports concerning abuse of the stepfather’s natural children by the

stepfather. Mr. Reagan stated that he did not see thes e docu ments prior to the

preliminary hearin g, and that the y would have be en imp ortant to rebut th e state ’s

proof of probable cause that the Petitioner was the person who committed the

crime.

On redirect, Mr. Reagan was shown the statement of the Petitioner

in which he admitted raping a nd cho king the vic tim. However, Mr. Reagan

testified that the Petition er had told him that he had been coerced into making the

statem ent. It was Mr. Reagan’s opinion that if he had had the DHS information,

he would have been “on stronger ground” in making a motion to suppress the

Petitione r’s statem ent.

Ken Miller, trial counsel for the Peti tioner, testified that he and co-

counsel Jim Va rner had been a ppointe d to repre sent the Pe titioner in Criminal

Court in 1985. He testified that he had spoken with the Petitioner on many

occasions and that he would have d iscuss ed with him whethe r he sho uld testify

at the suppression hearing and at trial. He recollected that the Petitioner was not

anxious to testify and that the more counsel talked to him, the more counsel

realized that the Petitioner would not make a good witness. He recalled that the

Petition er’s mem ory of events surrounding the victim’s death changed from time

to time. He did not rec all any spe cific reque st of the Petitioner as to what he

wanted done with the case and did not remember the Petitioner asking for a DNA

test. He stated that he had discussed a mental related defense with the

Petitioner and that the Pe titioner h ad be en eva luated at Ridg ecres t Psych iatric

Hospital and examined by Diana McCoy. A neuropsychological evaluation had

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been obtained, and the resulting proof had been presented at trial through Nina

Bras well Lunn, a social wo rker. Counsel testified that a strategic decision not to

call Dr. McCoy or the psychiatrist had been made becau se they h ad referre d to

the Petitioner as a sociopath.

On cross-examination, Mr. Miller testified that he had been aware

that the victim’s stepfather had failed a polygraph test but state d that he had

never seen the list of questions purportedly from the victim’s mother or any of the

DHS records. He stated that the allegations of the victim’s mother w ould have

been important for impeachment purposes and in the sentencing phase of the

trial. He tes tified tha t the D HS re cords would have b een e xtrem ely imp ortant in

both the guilt and s entenc ing pha ses.

DHS records presented to Mr. Miller during the hearing included (1)

an order from the Juvenile Court for Knox County finding that the children of Mr.

Jeffers had been subjected to “severe child abuse” caused by “continual

excessive discipline,” (2) complaints received by DHS concerning physical abuse

of Mr. Jeffers’ children, (3) a foster care plan which required that Mr. Jeffers and

his wife attend couns eling dea ling with paren ting sk ills and pay support while the

children were placed in foster care, and (4) a redetermination of eligibility fo r Title

XX services which stated that Mr. Jeffers had not obtained parenting counseling.

The records also included a letter to Juvenile Court Judge Wagner from social

workers who had conducted a surprise visit to the Jeffers home and reported that

the Petition er lived in the ho me a nd pro vided c hild care and that he had been

observed taking good care of the children. Another DHS report stated that the

DHS supervisor had gone to the home and talked with the children, asking them

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about the Petitioner. The girls in the family told the supervisor that they liked

“Unc le Bill” and that he had never hurt them or tried to do anything else such as

“touch[ing ] them in th eir panties .”

Mr. Miller testified that if he had been given these documents, he

would have contacted the social workers who interviewed the children and

conducted the hom e visit as poss ible witnesses to show that the Petitioner loved

and cared for the children. He also stated that the inform ation would ha ve been

extremely important to cast doubt as to who committed the crime.

On redirect, Mr. Miller stated that he had investigated whether

another perso n com mitted the offe nse, b ut the e ffort had been unsu cces sful in

that the only information they had obtained ha d been the polygraph test w hich Mr.

Jeffers failed a nd wh ich wa s inad miss ible. Mr . Miller admitted that he did not

investigate whether or not Mr. Jeffers was where he said he was on the night of

the murde r.

James H. Varn er, Jr., co-counse l for the Petitioner, testified that he

had assisted Mr. Miller in representing the Petitioner. He stated that he had had

several conversations with the Petitioner and recalled that the decision had been

made that the Petitioner not testify because he could not remember what

happened on the evening of the murder. He stated that if the Petitioner had

insisted on testifying, he would have been allowed to do so.

On cross-examination, Mr. Varner was shown the same DHS

docum ents and letter that had b een show n to Mr. Miller. He too s tated that he

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had not been given these documents and felt that they would have been

important to impeach Ms. Jeffers and to attack the credibility and character of the

only other su spect in th e case , Mr. Jeffers . He state d that the overall trial

strategy would have changed because attacking the parents of a child who had

been murdered without something substantial to place in front of a jury w ould be

something an attorn ey shou ld not do. H oweve r, with the substantial allegations

of child abuse over a period of time, counsel could have cast Mr. and Ms. Jeffers

in a different light. He stated that he would not have backed off some of the

questions that he ha d wante d to ask Mr. and Ms. Jeffers. Mr. Varner also stated

that the records would have been beneficial to bolster the Petitioner’s claim that

he had no reason to commit this offense and that he had always cared for the

children a ppropria tely.

Mr. Varner testified that he had made an effort to determine whether

Mr. Jeffers’ alibi had checked out. He stated that there had been a period of time

when Mr. Jeffers had su ppose dly been at work tha t could no t be verified. He

admitted that at the original trial an FBI expert testified that hair found on the

victim was co nsistent w ith that of the Petitioner, but he could not recall whether

a hair analysis was done on Mr. Jeffers.

On redirect, Mr. Varne r stated tha t he had hired Cle veland B lake, a

certified forensic pathologist, to testify conc erning the stre ngth o f the sta te’s

analysis of the sero logical evid ence. H oweve r, on the da y Dr. Blak e was to

testify, he purp ortedly star ted “waffling ” as to his prior conclusions, and counsel

decided not to present him as a witness. Mr. Varner stated that there was

nothing in the FBI report conc erning the ha ir analys is to indicate that Mr. Jeffers’

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hair was tested for the purpose of comparison to the hair that was found inside

the victim.

The final witness for the state, David Jennings, the assistant district

attorney who assisted in the prosecution of the Pe titioner, te stified th at in his

contac ts with Mr. and Ms. Jeffers, pretrial and during the trial, Ms. Jeffers had

appeared to be grief stricken an d Mr. Jeffers had acted like a grieving stepfathe r.

He stated that he had no recollection of seeing the letter purportedly written by

Ms. Jeffers, but that he recalled that Ms. Jeffers would go into “ramb lings” with

him during their interviews and sometimes ask que stions sim ilar to those in the

letter. W ith this testim ony, the s tate conc luded its p roof.

In reviewing the trial court’s de terminations, we are guided b y certain

rules. Since this pe tition wa s filed prior to the effective date of the Post

Conviction Act of 1995, the burden was on the Petitioner at the hearing to prove

his case by a pre pond eranc e of the eviden ce. On appe al, the tria l court’s

findings are co nclus ive unle ss the evide nce pre ponde rates ag ainst its

determinations. Turne r v. State, 698 S.W.2d 90, 91 (Tenn. 1985). The burden

now rests upon the Petitioner to illustrate how the record preponderates against

the judgm ent. Black v. S tate, 794 S.W .2d 752, 755 (Tenn. Crim . App. 1990 ).

I. EFFECTIVE ASSISTANCE OF COUNSEL

The Petitioner contends that his attorneys were ineffective for failing

to object to th e trial court’s fa ilure to instruct the jury that it is the sole judge of not

only the facts b ut also the law, for failing to follow thro ugh in atte mpting to

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introduce evidence that Kenneth Jeffers failed a polygraph test concerning the

incident, for failing to raise the issue of double jeopardy concerning convictions

for felony murder and aggravated rape, for failing to object to a jury instruction

that evidenc e of flight m ay justify an inference of guilt, and for failing to raise an

issue concerning the fact that he was not taken before a magistrate until a week

after his arrest. We hold that the Petitioner received the effective assistance of

coun sel.

In determining w hethe r coun sel pro vided e ffective a ssistance at trial,

this court must decide whether counsel’s performance fell within the range of

competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a Petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the Petitioner,

resulting in a failure to produce a reliable res ult. Strickland v. Washington, 466

U.S. 668, 68 7, reh’g denied, 467 U.S. 1267 (1984); Coop er v. State , 849 S.W.2d

744, 74 7 (Ten n. 1993 ); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy the second prong, the Petitioner must show a reason able pro bability that,

but for counsel’s unreasonable error, the fact find er wou ld have had re ason able

doubt regardin g Petitione r’s guilt. Strickland, 466 U.S. at 695. This re ason able

probab ility must be “sufficient to undermine the confid ence in th e outco me.”

Harris v. S tate, 875 S.W .2d 662, 665 (Tenn. 199 4).

When review ing trial c ouns el’s actions, this court should not use the

bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics.

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Hellard v. State, 629 S.W.2d 4, 9 (T enn. 1 992). C ouns el’s alleg ed erro rs sho uld

be judged at the time they we re ma de in lig ht of all the facts and circumstances.

Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.

The Petitioner first claims that couns el was ine ffective for failing to

object to the trial court’s failure to instruct the jury that it was the sole judge of not

only the facts but also the law. The state asserts that no Tennessee a ppellate

court has e ver he ld that a defen dant h as a rig ht to ha ve a jury instruc ted tha t it

may ignore the mandates of the law set out by the trial court’s instructions.

In Judge v. State, 539 S.W.2d 340, 342-43 (Tenn. Crim . App. 1976 ),

the defendant alleged that the court erred in instructing the jury that it was the

judge of fact and in reach ing its ve rdict, it was to consider the law in connection

to the facts but that the court was the proper source from which it was to get the

law. As in the case at bar, the defendant insisted that the instruction violated

Article 1, Section 19 of the Tenn essee Constitu tion which states tha t, “[t]he jury

shall have the right to determine th e law and facts under the direc tion of the court

in libel as in oth er crimina l cases.”

This court concluded that it was unnecessary to decide the issue

because the erro r in the c harge , if any, wa s harm less error. Id. at 343 . This

court cited the following standard as set out in Ford v. S tate, 101 Tenn. 454, 47

S.W. 703 (1898), in rejecting the defendant’s claim:

. . .[The] mere failure to tell the jury that they are the
judges of the law is not necessarily reversible error. . . .
[W]here no injury co uld ha ve resu lted to d efend ant, it
is not reversible error. Such a case is one where,

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 whoever judged of the law, it was sufficiently and
accu rately charged, and as fully as should have been.

Judge, 539 S.W .2d at 343 .

In this case, the record reflects that the jury was sufficiently and

accu rately charged as to the applicable law, and we cannot conclude that the

Petitioner was p rejudic ed by th is om ission . Acco rdingly , even if P etitione r’s

counsel should have objected to the charge as given, the e rror does not rise to

the leve l of ineffe ctive as sistan ce of c ouns el.

The Petitioner next claims that counsel was ineffective for failing to

follow through in attemp ting to introd uce evid ence th at Kenneth Jeffers,

stepfather of the victim, had failed a polygraph test concerning his involvement

in the murder of the victim. The Petitioner asserts that counsel failed to follow

through in its attempt to introduce the evidence at the guilt phase and, more over,

failed to attempt to introduce the evid ence at the p enalty p hase where it would

clearly have been admissible. We do not agree.

It has long been established in Tennessee that the results of a

polygraph examination are not admissible as evidence in a criminal prosecution.

State v. Cam pbell, 904 S.W.2d 608, 614 (Tenn. Crim. App. 1995); Grant v. S tate,

213 Tenn. 440, 443 374 S.W.2d 391, 392 (1964); Marab le v. State, 203 Tenn.

440, 456, 31 3 S.W .2d 451 , 458 (19 58); State v. Adkins, 710 S.W .2d 525, 529

(Tenn. Crim. App. 19 85); State v. Elliott, 703 S.W.2d 171, 177-78 (Tenn. Crim.

App. 1985). T he cou rts of this state have consistently held that the results of

such tests are “inherently unreliable.” Adkins, 710 S.W .2d at 529 .

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 The Petition er argu es tha t the afo reme ntione d evide nce w ould

“clearly” have be en adm issible at the penalty phase of the proceedings.

Howeve r, Tennessee Code Annotated section 39-2-203(c), now codified at

section 39-13-204(c) (1996 Supp.), simply provides that the following evidence

may be presented at the penalty phase:

. . . evidence may be presented as to any matter that
the court deems relevant to the punishment and may
include, but not be limited to, the nature and
circumstances of the crime; the de fendant’s cha racter,
background history, and physical condition; any
evidence tending to establish or rebut the aggravating
circumstances enum erated in sub sectio n (i); and any
evidence tending to estab lish or rebut any mitigating
factors. Any such evidence which the cour t deem s to
have probative value on the issue of punishment may
be received regardless of its admissibility under the
rules of evide nce; p rovide d, that th e defe ndan t is
accorded a fair opportunity to rebut any hearsay
statements so admitted.

The admissibility of the evidence of which the Petitioner complains

does not fit under any of these categories. The results of a polygraph test would

have no probative value on the issue of punishment. Accordingly, again, we must

conclud e that the P etitioner’s cla im is witho ut merit.

The Petitioner contends that trial counsel was ineffective for failing

to raise the issue that his convictions for both felony murder and the underlying

aggravated rapes are a violation o f the doub le jeopard y clause o f the Fifth

Amendment of the United States Constitution and thereby violate th e Petitio ner’s

due process rights. The Petitioner cites the United States Suprem e Court

decision in Whalen v. United States, 445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed. 2d

715 (1980) in support of this proposition. He also cites Briggs v. S tate, 573

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S.W.2d 157 (Tenn. 1978), in which our supreme court held that convictions for

felony murder and the underlying felony of arme d robbe ry could n ot stand. The

Petitioner faults counsel for failing to raise this issue.

The state concedes that Briggs does supp ort the P etitione r’s

argum ent, but correctly asse rts that Briggs is no longer controlling law. 573

S.W.2d 157. In State v. Blackbu rn, 694 S.W.2d 934 (Tenn. 1985), our supreme

court revisited Briggs and reve rsed the underlyin g appe llate court’s dismissal of

the defendan t’s conviction for assau lt with intent to c omm it rape. The

interme diate appellate court concluded that the assau lt conviction m erged w ith

the felony murder conviction. However, the Supreme Court concluded that the

legislature intended that mu ltiple punish ments be imp osed o n convictio ns of a

defend ant for felon y murd er and th e unde rlying felony. Id. at 937.

Since Blackburn , Tennessee courts have consistently rejected a

doub le jeopardy claim on convictions for felony murders and the underlying felony

offense. See State v. Denton, 938 S.W.2d 373, 379 (Tenn . 1996); State v. Zirkle ,

910 S.W.2d 874, 890 (Tenn. Crim. App. 1995). In that the double jeopard y

clause was not implicated in the Petitioner’s convictions, counsel cannot be

faulted for fa ilure to raise such cla im.

The Petitioner next argues that his attorneys were ineffective for

failing to object to the trial court’s instruction on flight. He argues that because

there was no evidenc e of flight, cou nsel com mitted a c ritical error in failing to

object when the instruction was given. We disagree.

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 The instruction given to the jury on flight reads as follows:

The flight of a person accused of a crime is a
circumstance which, when conside red toge ther with all
of the facts of the case, may justify an inference of
guilt. Flight is the voluntary withdrawal of one’s self for
the purpose of evading arrest or prosecution for the
crimes charged. Whether the evidence presented
proves beyond a reasonable doubt that the defendant
fled is a question for your consideration.

The law makes no nice or refined distinction as
to the ma nner or m ethod o f a flight. It may be open, or
it may be a hurried or concealed departure, or it may
be a conce alme nt within the juris diction . How ever, it
takes both a leaving the scene of the difficulty and a
subsequent hiding out, evasion, or concealment in the
comm unity, or a leaving of th e com munity fo r parts
unkno wn to co nstitute flight.

If flight is proved, the fact of flight alone does not
allow you to find tha t the defen dant is gu ilty of the
crime alleged. H owever, since flight by a defendant
may be caused by a consciousness of guilt, you may
consider the fact of flight, if flight is so proven, together
with all of the other e videnc e whe n you d ecide the gu ilt
or innocence of the defend ant. On the other hand, an
entirely innocent person may take flight and such flight
may be explained by proof offered or by the facts and
circumstances proved in the case . Whether there was
flight by the defendant, or the reasons for it, and the
weight to be g iven it are questions for you to determine.

In Hall v. State , 584 S.W.2d 819, 821 (Tenn. Crim. App. 1 979), th is

Court q uoted 2 9 Am . Jur. Evidence § 280 a t 329 on the issue of flight:

The fact that a defendant after the commission
of a crime concealed himself or fled from the vicinity
where the crime was committed, with knowledge that
he was like ly to be a rreste d for the crime or charged
with its commission, may be shown as a circumstance
tending to indicate guilt.

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 In Rogers v. State , 2 Tenn. Crim. App. 491, 455 S.W.2d 182, 187

(Tenn. Crim. App. 1970), this Court set out a two-prong test for determining

whethe r the facts o f a case w ere indica tive of flight:

The law makes no nice or refined distinction as
to the m anne r or me thod o f a flight; it may be open, or
it may be a hurried or concealed departure, or it may
be concealment within the ju risdictio n. How ever, it
takes both a leaving the scene of the difficulty and a
subsequent hiding out, evasion, or concealment in the
comm unity, or a lea ving of th e com mun ity for parts
unkno wn, to con stitute flight.

Contrary to the Petitioner’s assertions, there is evidence in the

record to justify this instruc tion. At th e mo tion to s uppre ss he aring a nd at tria l,

Detective Wis er testifie d that th e Petitio ner ha d told him that he had slept under

an interstate bridge the night befo re he wa s taken in to custody. Also, D etective

Parker testified that whe n he ha d taken the Petition er into custody, the Petitioner

had told the m an who had ac comp anied D etective P arker in se arching for the

Petitioner that he (the Petitione r) had been hiding under the bridge all day and

had thought about turning himself in. At trial, Ms. W allace Sm ith Bailey, a

neighbor of the Jeffers, testified that on the night of the murder, the Petitioner had

knocked on her door and asked to use the telephone. He called Mr. Jeffers and

told him to come home because the victim could not be revived. As he was

leaving, Ms. Bailey asked the Petitioner why did he not call an ambulance. He

told her tha t it was too late for that. After Mr. Jeffers arrived at the Jeffers home

and took the victim to the hospital, Ms. Bailey watched the Petitioner put on a

jacket from the house, walk down the steps, and leave the s cene. Cum ulatively,

this evidence was sufficient to warrant an instruction on flight. Trial counsel was

not ineffective for failing to object to this instruction.

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 Last, the Petitioner claims that counsel was ineffective for not raising

the issue that because the Petitioner was not taken before a m agistrate prom ptly,

his statement to police should be suppressed. According to the Petitioner, he

was not taken befo re a magistrate until about a week after his arrest. The

Petitioner relies upon the supreme court’s holding in State v. Huddleston, 924

S.W.2d 666 (T enn. 1 996) in support of his claim. In Huddleston, 924 S.W.2d at

670-71, the court held that a delay of seventy-two hours before bringing the

Petitioner before a magis trate violated Rule 5(a ), Tenn . R. Crim. P. and the

Fourth A mend ment to the U.S . Constitu tion.

The Court must initially note that the decision in Huddleston had not

been rendered a t the time of the petitione r’s trial. Moreo ver, State v. Readus,

764 S.W.2d 770 (Tenn. Crim. App. 1988), a decision relied upon in Huddleston,

was not issued un til two years after the Petition er’s trial. A ccord ingly, it wo uld

seem inappropriate to fault counsel for failing to raise an issue relying upon

autho rity in a su prem e cou rt decis ion filed nine ye ars afte r the P etitione r’s trial.

Nonetheless, in addressing the Petitioner’s implication that he was

illegally detained at the time of his statements to the police, thus requiring the

suppression of those s tateme nts, we co nclude that the P etitioner would not be

entitled to relief. In Huddleston, the Tennessee Supreme Court concluded that

a statem ent give n in violation of Tenn. R. Crim. P. 5(a) need not be suppressed

if the statement was voluntarily given under the totality of the circumstances.

Huddleston, 924 S.W.2d at 670 (citing Readus, 764 S.W .2d at 774 ); see also

State v. Middlebrooks, 840 S.W.2d 317, 327-28 (Tenn. 1992). The Tennessee

Supreme Court has alread y deter mine d on d irect ap peal th at the P etitione r’s

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confession was volunta rily given un der the to tality of circum stance s test. State

v. Irick, 762 S.W.2d at 126-27.

Howeve r, in addressing the claim of a Fourth Amendment violation,

the Huddleston court noted that “[i]f the probable cause determination does not

occur within forty-eig ht hours , ‘the burd en shifts to the gove rnmen t to

demo nstrate the exis tence of a bo na fide emergency or other extrao rdinary

circum stanc e.’” 924 S.W.2d at 672 (citing Cou nty of R iverside v. McL augh lin, 500

U.S. 44, 57, 11 1 S. Ct. 16 61, 167 0 (1991 )). For the purpose of determining the

admis sibility of the Petitioner’s statements, assuming that a McLa ughlin violation

has occurred, the question becomes whether the statement was sufficiently an

act of free will to purge the primary ta int of the un lawful invas ion. Huddleston,

924 S.W.2d at 674 (citing Brown v. Illinois, 422 U.S. 590, 598, 95 S. Ct. 2254,

2259 (1975) and Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407,

416 (1963)). In determining whether a su fficient act of free will exists, the court

suggested that the following four factors be considered:

(1) the presence or absence of Miranda warnings;

(2) the tempo ral proxim ity of the arres t and the
confession;

(3) the presence of intervening circumstances; and

(4) the purpose a nd flagrancy of the official
misco nduct.

Huddleston, 924 S.W.2d at 674-75. The burden of proving the admissibility of the

challenged evidence by a preponderance of evidence rests upon the prosecution.

Id. at 675.

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 W e conclude that the reco rd reflects sufficie nt atten uation to perm it

the introdu ction o f the Pe titioner’s statem ent. Mo st imp ortantly , the Pe titioner’s

statement was obtaine d within two hou rs of his arrest. Thus, the statement was

given to the police before the Petitioner’s detention would have pu rporte dly

ripened into a constitutional violation. The only evidence presented at the post-

conviction hearin g con cernin g illega l detention was the Petitioner’s testimony that

he believed he was in jail about a w eek before he was take n before a judge for

his initial ap peara nce. T he Pe titioner w as rep eated ly advise d of his rights at the

time of his arrest and throughout the interrogation process. Finally, the Petitioner

does not argue, nor could he, that his initial arrest was n ot sup ported by prob able

cause. Under the se circ ums tance s, it wou ld app ear tha t the Pe titioner’s

statement would n ot have b een su bject to suppression under Huddleston, even

if it had b een in effect at the time of the Petitioner’s trial. This claim is without

merit.

II. BRADY VIOLATION

The Petitioner asserts that the state withheld eleven items of

exculpatory evidence in violation of the Supreme Court’s decision in Brady v.

Maryland, 376 U .S. 83, 83 S. Ct. 119 4 (1963 ). The following documents and

photog raphs w ere sub mitted by Petitioner a t the post-c onviction h earing:

Exhibit 1 An unsigned and undated document
purported ly written by Kathy Je ffers
(Kenn eth Jeffers’ wife) to the district
attorne y’s office consisting of a list of
questions which would implicate Mr.
Jeffers in the murder of the victim.

Exhibit 3 A Department of Human Services report
with the date of complaints listed as

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 February 2, March 7, and March 29,
implicating Mr. Jeffers, Pamela Jeffers,
and Vickie Jeffers in the physical abuse of
Mr. Jeffers’ two minor children.

Exhibit 4 A Knox C ounty Juvenile Cou rt order
declaring Mr. Jeffers’ three minor children
dependent and neglected and awarding
custody of the children to the Department
of Human Services due to “continual
excessive discipline” by Mr. Jeffers,
Pamela Jeffers, and Vickie Jeffers.

Exhibit 5 Foste r Care Plans for Mr. Jeffers’ two
male children from 1980 to 1982
suggesting that the biological mo ther, the
stepmoth er, and Mr. Jeffers attend
counseling dealing with parenting skills.

Exhibit 6 Redetermination of Eligib ility for Title XX
Services made in 1981 and 1982, a letter
to Judge Carey Garett dated March 23,
1984, from the Department of Human
Services concerning Mr. Jeffers’ attempt
to regain custody of his minor da ughter,
and report s of ho me s tudies mad e in
1983, suggesting that all three minor
children be placed in the custody of Mr.
Jeffers.

Exhibit 7 Redetermination of Eligibility for Title XX
Services made in 1982 recommending
that Mr. Jeffers’ two minor sons rema in in
foster care because Mr. Jeffers had not
obtained parental counseling.

Exhibit 8 Letter to Judge Brenda Wagner dated
March 23, 1994, from the Department of
Human Services deta iling Mr. Jeffers’ and
Kathy Jeffers’ home situation and
explaining that the Petitioner also live d in
the home and “appeared stable “and had
“been observed taking good care of the
children during a surprise home visit”
while Mr. and Ms. Jeffers were working.

Exhibit 9 Department of Human Services report
dated December 23, 1984, substantiating
abuse of Mr. Jeffers’ minor daughter while
in the custody of Mr. Jeffers and Kathy
Jeffers.

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 Exhibit 10 Department of Human Services reports
concerning Mr. Jeffers’ two minor sons
dating from 1979 until 1982.

Exhibit 11 A Department of Human Services report
dated April 26, 1985, in which the worker
visited the Jeffers home after the victim’s
death and Mr . Jeffers at first was h ostile
and then requested counseling for him self
and his son.

Exhibit 17 Photographs of the victim’s home on the
night of the mu rder.

According to both trial coun sel, none of this information was provided

to them prior to tr ial.

The state c onten ds tha t in refere nce to Exhib it 1, the c laim that a

Brady violation occurred must fail because the Petitioner did not demonstrate that

the state suppressed this information. At the hearing, Assistant District Attorney

Gen eral D avid Jennings testified that he did not recall ever having seen Exhib it

1. The state claims that because this document was unsigned and undated,

there is no evidence to demonstrate at what point this information came into the

possession of the state. The state further contends that the Petitioner has failed

to prove th at the doc umen t was m aterial.

As to Exhibits 3 through 11, again the state claims that the Petitioner

has failed to demonstrate that the state suppressed the information because

there is nothing to indicate at what p oint the D epartm ent of Human Services

records came into the possession of the state. Also, as in Exhibit 1, the state

conte nds th at this e videnc e was not m aterial.

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 Last, the state contends the Petitioner has failed to prove that the

photographs introduced as Exhibit 17 were suppressed because there was

unrefuted testimony that the procedure would have been that the p hotographs

would have been kept by the Criminalistics Division of the Police Department and

that they would have been available to defense counsel at all times. Again, the

state a rgues that the photo graph s were not m aterial.

In the landm ark case of Brady v. Maryland, 373 U.S. 83, 83

S.Ct.1194, 10 L. Ed. 2d 215 (1 963), th e Unite d State s Sup reme Cour t held that

the prosecution has a constitutional duty to furnish the accuse d with exculpatory

eviden ce pe rtaining to eithe r the ac cuse d’s gu ilt or innocence and the potential

punishment that may be imposed. Failure to reveal exculpatory evidence violates

due proce ss wh ere the eviden ce is m aterial e ither to g uilt or pu nishment,

irrespective of good faith or bad faith of the pros ecution. Brady, 373 U.S. at 87,

83 S. C t. at 1196-9 7. The prosecution must also disclose evidence which may

be used b y the defe nse to im peach a witness . Giglio v. United States, 405 U.S.

150, 15 4-5, 92 S . Ct. 763,7 66 (197 2); Workm an v. State, 868 S.W.2d 705, 709

(Tenn. Crim. A pp. 199 3); State v. Davis , 823 S.W.2d 217, 218 (Tenn. Crim. App.

1991).

Before a reviewing court may find a due process violation under

Brady, all of the following four prerequisites must be satisfied:

(1) The defendant must have requested the
information (unles s the e videnc e is ob viously
exculpatory, in which c ase the state is bound to
release the information whether requested or
not);

(2) The state must have suppressed the information

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 (3) The information m ust have been favorable to the
accused; and

(4) The inform ation m ust ha ve bee n ma terial.

State v. Edg in, 902 S.W .2d 387, 390 (Tenn.) amended o n reh’g , (Tenn. 199 5).

Our examination of the record leads us to the conclusion (1) that the information

was requested; (2) that the Petitioner failed to prove that the information was

suppressed by the state; (3) that the information may have been favorable to the

defend ant; but (4) that the information was not material under the standards of

Kyles v. Whitley, 514 U.S . 419, 115 S. Ct. 155 5, 131 L . Ed. 2d 4 90 (199 5). In

Kyles, 115 S. Ct. at 1566, the United States Supreme Court pronounced the

standard by which the mate riality of undisclosed information is measured, holding

that, “[t]he question is not wh ether the defen dant would m ore likely than not have

received a different ve rdict with the evidenc e, but whether in its absence he

received a fair trial, understood as a trial resulting in a verdict worthy of

confidence .” See also Edgin , 902 S.W.2d at 390. Thus, in order to prove a

Brady violation, a de fendan t must sho w that “th e favor able e videnc e cou ld

reaso nably be taken to pu t the whole cas e in such a differe nt light as to

underm ine the confiden ce of the verdict.” Id.

In the ca se at b ar, trial co unse l testified at the e videntia ry hea ring

that he had had a problem with discovery in this case and that he had s pecific ally

requested information about Mr. and Ms. Jeffers’ background. The direct appeal

record reflects that, through counsel, the Petitioner filed an extensive disc overy

motion. Among the items sought were:

The criminal record, including any juvenile record, or
any prior conviction of any person who may be called
as a witness. While not limited to, spe cific req uest is
made for the crim inal rec ords, a dult and juvenile, if any,

-32-
 of Kathy Ann Dyer Jeffers and Kenneth Michael
Jeffers.

The state appealed the trial court’s granting of the motion, asserting that the trial

court abused its discretion because Rule 16(a)(1)(B), Tenn. R. C rim. P ., only

provides that upon the defendant’s request the state must furnish a copy of the

defen dant’s prior criminal record and does not require the production of criminal

records of witness es. Citing Graves v. State, 489 S.W.2d 74, 83 (Tenn. Crim.

App. 1972), th is Court h eld that in the interest of justice, a trial court may grant

such a request. State v. Billy Ray Irick, C.C.A. No.1060, Knox County. (Tenn.

Crim. App ., Knoxville, Apr. 18, 1986 ).

At the evidentiary hearing, the Petitioner presented no evidence as

to when the state received either the letter purportedly written by Ms. Jeffers or

the DHS records . The lette r was un dated a nd uns igned. We cannot, therefore,

undeniably conclude that the state withheld this evidence.

W e also cannot conclude that the evidence wa s material. In regard

to the letter purportedly written by Ms. Jeffers, trial counsel for the Petitioner

testified that he was not sure if Ms. Jeffers tes tified to anyth ing incon sistent with

the question s referred to in the letter. Furthermo re, the fact that Mr. Jeffers was

initially the prim e susp ect was brough t out at trial.

As for the DHS records, none of the documents deal with Ken neth

Jeffers’ abuse of the victim. The Petitioner has failed to demonstrate how prior

allegations of child abuse would have affected either the guilt or the penalty

phase of the tria l. Again, the defense presented evidence at the guilt phase that

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Kenn eth Jeffers was initially considered the prim e suspect in this case, but the

state’s evidenc e refuted this theory. It was the Petitioner who called Mr. Jeffers

at work to tell him that the victim had stopped breathing. It was the Petitioner who

stated that he could not remem ber what ha ppened on the night of the m urder.

It was the Pe titioner’s pubic hair that ma tched hair found inside the victim.

Moreover, on e of the reports co ncluded tha t one of Mr. Jeffers’ natural children

should be returned to him.

Although the petitioner contends that information in the records

concerning surprise visits in which he was found to be taking good care of the

children would have been favorable and material, the record reveals th at this

information was also brought out during the testimony of Mr. and Ms. Jeffers.

Both testified that the Petitioner had lived with the family for two years and had

not given them any cause for concern in regard to his relationship with the

children.

In summ ary, we conclude that the Petitioner has failed to show: (1)

that the state suppresse d the a bove m ention ed evid ence and (2 ) that sa id

evidence, under the Kyles “materiality standard,” was material. The absence of

the unsigned, undated, and untitled letter and the DHS records of Mr. and Ms.

Jeffers did not deprive the petitioner of a fair trial a nd did not un derm ine faith in

the verdict reached by the jury. In light of the eviden ce pre sente d at trial, even

had this inform ation b een d isclose d, there is not a reasonable probability that the

result would h ave bee n different. See Edgin , 902 S.W .2d at 3 90. Th is issue is

without m erit.

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 II. AGGRAVATING CIRCUMSTANCES

The Petitioner next asserts that all four aggravating circumstances

found by the jury are invalid, and therefore, the death penalty must be set aside.

The state relied upon and the jury found applicable the following four aggravating

circumstan ces to warran t the death pen alty:

(1) The crime was committed against a person less
than twelve (12) years of age and the defendant
was eig hteen (1 8) years o f age or o lder;

(2) The murder was especially heinous, atrocious or
cruel in that it in volved torture or depravity of
mind;

(3) The murder was committed for the purpose of
avoiding, interfering with, or preventing a lawful
arrest or prosecution of the defendant or
another; and

(4) The murd er was com mitted while the defendant
was engaged in committing the felony of rape, or
was an accomplice in the commission of, or was
attempting to commit, or was fleeing after
committing or attempting to commit rape.

Tenn. C ode Ann . §§ 39-2-203 (i)(1), (5), (6), and (7)(1985).

The Petitioner first argues that two of the aggravating circumstances

found to exist by the jury are invalid under State v. Middlebrooks, 840 S.W.2d

317 (Tenn. 1992). He asserts that the aggravating circumstance that the murder

was comm itted during the perp etration of a rape and the circumstance

concerning the ag e of the victim a nd the defen dant a re inva lid bec ause they did

not narrow the classes of persons eligible for the death penalty when the

defendant was convicted of felony murder and the felony was aggravated rape.

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 In Middlebrooks, the supreme court held that the felony murder

aggravator cannot be used to s upport a death sentence in felony murder cases

because this aggravating circumstance does not narrow the death eligible class

of defendants who are convicted of felony murder. In ruling, the court said:

W e have determined that in light of the broad definition of
felony murder and the duplicating language of the felony murder
aggravated circumstance, no narrowing occu rs und er Te nnes see’s
first-degree murde r statute. W e hold tha t, when the de fenda nt is
convicted of first-degree murder solely on the basis of felony
murder, the aggravating circumstance set out in T.C.A.§ 39-2-
203(i)(7) (1982) and 39-13-204(i)(7) (1991), does not narrow the
class of death -eligible mu rderers s ufficiently und er the Eig hth
Amendment to the U.S . Constitu tion and Article I, § 16 of the
Tennessee Constitution because it duplicates the elements of the
offense. As a result, we conclude that Tenn. Code Ann. § 39-2-
203(I)(7) is unconstitutionally applied under the Eighth Amendment
to the U.S . Constitu tion and A rticle I, § 16 of the Tennessee
Constitution where the death pena lty is imposed for felony murde r.
According ly, we expressly overrule State v. S mith, 755 S.W.2d 757
(Tenn. 1988) and its progeny on this issue.

Middlebrooks, 840 S.W.2d at 346. The court has subsequently held that the

holding in Middlebrooks should b e applied retroactive ly. Barbe r v. State, 889

S.W .2d 185, 186 -87 (Tenn . 1994).

The state con cedes that the felony murder aggravator was

impro perly applied in this ca se, bu t argue s that th e app lication of this aggravator

is harmless beyond a reasonable doubt. In State v. Howell, 868 S.W.2d 238

(Tenn. 1993), the court adopted the harmless error standard used by the United

States Supreme Court in Stringer v. Black, 503 U.S. 222 , 112 S. Ct. 1130, 117

L. Ed. 2d 367 (1 992), fo r deter minin g whe ther the impro per ap plication of the

felony murd er agg ravato r could be co nside red ha rmles s beyo nd a re ason able

doubt. In How ell, our supreme court held the following:

In order to guarantee the precision that
individualized sentencing considerations demand and

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 provide a princ ipled e xplana tion for o ur con clusion in
each case , it is important, when conducting harmless
error review, to com pletely examine the record for the
presence of factors which potentially influence the
sentence ultimately imposed.

868 S.W.2d at 260-61. These factors include, without limitation, the following:

(1) The num ber an d stren gth of re main ing valid
aggravating circumstances;

(2) The prosecutor’s argument at sentencing;

(3) The eviden ce ad mitted to esta blish th e invalid
aggravator; and

(4) The nature, quality, and strength of the
mitigating evidence.

Id. at 261. In the case at bar, we conclude that in reviewing the applicability and

reweighing of the three remaining aggravating factors, any error was harmless

under How ell.

The Petitioner contends that the aggravating circumstance regarding

the ages of the defenda nt and the victim m ust also fail under Middlebrooks. The

Petitioner maintains that the rape was cons idered aggra vated beca use th e victim

was less tha n thirtee n (13) y ears o f age a nd tha t one o f the ap plicab le

aggravating factors found by the jury was that the victim was less than twelve

(12) years of age and the defendant older than (18) years of age. He argues that

this situation is analogous to Middlebrooks in that the conviction of the defendant

of the underlying felony would automatically make him death-qualified, and

therefore the aggravating circumstance would not narrow the class of persons

eligible for the death pe nalty.

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 The application of the age enhancem ent fac tor is dis tinguis hable

from the problem in Middlebrooks. In order to convict the Petitioner of felony

murder, the state simply had to prove that he committed murder in the

perpetration of a rape. Tenn. Code Ann. § 39-2-202 (a) (1982). The victim’s age

was relevant in convicting the Petitioner of aggravated rape, but it was not

relevant in determining whether the petitioner was guilty of felony murder. The

victim’s age is not an element of the offense of felony murder, an d according ly,

a Middlebrooks problem does n ot exist.

Moreover, allowin g the victim’s age to be used as an aggravating

circumstance does narrow the class of death eligible defendants. Offenders who

kill young victims during a rape are a distinct subset of all murderers, and even

a subset of all felony murderers. Therefore, this aggravating circumstance

sufficie ntly narrows the class of death eligible defendants, and this aggravator

was properly applied.

The Petitioner next argues that the “heino us, atro cious , or crue l”

aggravating circumstance is unconstitutionally vague. However, the Tennessee

Supreme Court has consistently upheld the constitutionality of this aggravating

circumstance. See State v. Cazes, 875 S.W .2d 253 , 267 (Tenn . 1994), cert.

denied, 115 S. C t. 743 (19 95); State v. Black, 815 S.W .2d 166, 181 (Tenn. 199 1).

In the case at bar, the jury was instructed as to the terms of the statute and was

given de finitions for the terms. T his issue is without m erit.

The Petitioner also argues that the evide nce wa s insufficien t to

support the jury’s application of this a ggrav ating c ircum stanc e. How ever, th is

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issue was raised on direct appeal, and the Supreme Court concluded that the

evidence was m ore than adequ ate to establish all the e leme nts of th is

aggravating circums tance. State v. Irick, 762 S.W.2d at 134. This issue has

therefore been p reviously d etermin ed. See Hous e v. State, 911 S.W.2d 705, 711

(Tenn. 19 95).

Last, in regard to this aggravating circumstance, the Petitioner

contends that the application of this circumstance does not sufficiently narrow the

class of death eligible defendants. Again, howeve r, the Tennessee Supreme

Court reviewed the application of this aggravator in light of the definition in State

v. Willia ms, 690 S.W.2d 517, 532 (Tenn. 1985), and concluded that it was

cons titutiona lly acceptable and properly applied in the case at bar. State v. Irick,

762 S.W.2d at 132-34.

The Petitioner next contends that the evid ence is in sufficient to

support application of the aggravating circumstance that the murder was

comm itted for the purpose of avoiding, interfering with, or preventing a lawful

arrest or prosecution of the defendant or another. In State v. S mith, 868 S.W.2d

561, 580-8 1 (Te nn. 19 93), the Ten ness ee Su prem e Cou rt held that for purposes

of applying this circum stance, the state n eed only prove that at least one m otive

for killing was the prevention of prosecution.

In this case , the jury con victed the P etitioner of two counts of

aggravated rape. Th e eviden ce sup ports this conviction. Also, the evidence was

uncontested that the victim knew the Petitioner and that the Petitioner fled the

scene after Kenneth Jeffers took his daughter to the hospital. Under these facts,

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a reasona ble juror could ha ve found that the Petition er killed the v ictim, in part,

because he did not wa nt her to identify h im as the perpetrator of the aggravated

rape. See State v. S mith, 857 S.W .2d 1, 14 (T enn. 19 93), cert. denied, 114 S.

Ct. 561 (1993). Moreover, this inference is further strengthened by the fact that

after fleeing the scene, the Petitioner admitted that he had hid under a bridge for

most of the d ay following the m urder.

As previous ly stated, this C ourt concludes that the Middlebrooks

error was harmless beyond a doubt. In conducting the How ell analysis, the Court

must first consider that the jury correctly applied the three remaining aggravating

circumstances. The proof clearly supports their application.

Second ly, we must consider the extent to which the prosecu tor

emphasized the invalid felony-murder aggravator in his closing argument at

sentencing. The r ecord revea ls that th e pros ecuto r only br iefly discu ssed this

aggrava tor at sente ncing.

Thirdly, all of the evidence concerning the murder being committed

during the course of aggravated rape was admitted during the guilt phase, and

the jury could have considered the fact that the murder was committed during the

rapes as part of the circumstances of the crime and the character of the

Petitioner.

Last, in examining the nature, quality, and strength of the mitigating

evidence, the record reveals that mitigation evidence was admitted through Nina

Bras well Lunn, a licensed clinical social worker, who testified concerning the

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Petition er’s early psychiatric problems and institutionalizations. The assistant

district attorney who handled the Petitioner’s initial arraignment was also called

to testify that the Petitioner offered to plead guilty before being asked to plead

guilty or not gu ilty. The court gave the following instructions to the jury on

mitigation: (1) that the Petitioner had never before been convicted of a felony; (2)

that the Petitioner had never been arrested or convicted of a misdemeanor

involving moral turpitude; (3) that the Petitioner had a history of mental

impairm ent; (4) that the Petitioner was under the influence of alcohol or marijuana

at the time of the offense; (5) that the Petitioner had attempted to obtain help for

the victim after the crime; and (6) that the Petitioner had shown rem orse. There

was evidence in the record dealing with all of the ab ove fac tors, bu t the jury could

have justifiably concluded that it was not substantial enough to outweigh the

aggravating factors. On rebuttal at sentencing, the state presented the testimony

of Dr. Clifton Tennison, Jr., the psychiatrist who examined the Petitioner

concerning his mental condition at the time of the crim e and h is comp etency to

stand trial. Dr. Tennison tes tified that it was his opinion that the re was no

medical or psych iatric eviden ce to sup port incom petenc e to stand trial or reason

to support an insanity defense. He further testified that the Petitioner suffers from

an anti-social personality disorder. Based upon a thorough review of the record,

after careful analysis in conformity with How ell, we conclude , beyond a

reasonable doubt, that the sentence would have been the sa me had the jury

given no weig ht to the inva lid felony-m urder ag gravating factor. This issue is

without m erit.

CONCLUSION

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 After a thorough review of this record and the briefs filed on

behalf of th e parties, w e conc lude that th e eviden ce doe s not pre ponde rate

against the findings of the trial court. The judgment of the trial court is thereby

affirmed. The sentence of death will be carried out as provided by law on the

5th day of May, 1998, unless otherwise ordered by the Tennessee Supreme

Court or othe r proper autho rity.

____________________________________
THOMAS T. W OODALL, Judge

CONCUR:

___________________________________
DAVID H. WELLES , Judge

___________________________________
JOHN K. BYERS, Senior Judge

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