Thompson v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
MAY 1996 SESSION
May 30, 1997

Cecil W. Crowson
GREGORY THOMPSON, * Appellate Court Clerk
C.C.A. # 01C01-9506-CC-00180

Appellant, * COFFEE COUNTY

VS. * Hon. William S. Russell, Judge

STATE OF TENNESSEE, * (Post-Conviction, Death Penalty)

Appellee. *

For Appellant: For Appellee:

Robert J. Warner Charles W. Burson
Boult, Cummings, Conners, & Berry Attorney General & Reporter
414 Union Street, Ste. 1600
P.O. Box 198062 Kimberly A. Chance
Nashville, TN 37219 Assistant Attorney General
450 James Robertson Parkway
Joseph E. Ford Nashville, TN 37243-0493
McBee & Ford
17 S. College Street C. Michael Layne
Winchester, TN 37398 District Attorney General
307 S. Woodland
P.O. Box 147
Manchester, TN 37355

Stephen Weitzman
Asst. District Attorney General
307 S. Woodland
P.O. Box 147
Manchester, TN 37355

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE
 OPINION

The petitioner, Gregory Thompson, appeals the trial court's denial of

post-conviction relief. The petitioner was convicted of first degree murder. The jury

sentenced the petitioner to death based upon three aggravating circumstances: (1)

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

of mind; (2) that the murder was committed to avoid prosecution; and (3) that the

murder was committed while the defendant was committing a robbery or kidnapping.

Tenn. Code Ann. § 39-2-203(i)(5), (6), and (7) (repealed 1989). Our supreme court

affirmed the conviction and sentence on February 27, 1989. State v. Thompson,

768 S.W.2d 239 (Tenn. 1989). In 1990, the petitioner filed this petition for post-

conviction relief. At the conclusion of an evidentiary hearing several years later, the

trial court denied the claim.

In this appeal of right, the petitioner presents the following issues for

our review:

(1) whether the post-conviction court erred by finding
that the petitioner received the effective assistance of
counsel;

(2) whether the post-conviction court erred by denying
funding for a psychologist or psychiatrist and an
investigator;

(3) whether the post-conviction court erred by refusing to
set aside the order designating Judge William Russell to
hear this case and in refusing to reinstate Judge Buddy
D. Perry;

(4) whether erroneous jury instructions defining
deliberation and premeditation require reversal;

(5) whether the jury instructions on the "heinous,
atrocious or cruel" aggravating circumstance were
unconstitutionally vague;

(6) whether the petitioner's confession was unlawfully
obtained and illegally admitted at his trial;

(7) whether the failure of the trial court to instruct the jury

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 on the effect of non-unanimity and the option to
recommend life imprisonment violated the petitioner's
rights under the Eighth and Fourteenth Amendments;

(8) whether the trial court's allowing Dr. Watson to testify
and introduce psychiatric/psychological reports through
his testimony was an unconstitutional denial of
petitioner's rights;

(9) whether the petitioner was denied his constitutional
right to a trial by jury by the exclusion of two prospective
jurors; and

(10) whether the petitioner's constitutional rights were
violated by implicit references to his failure to testify.

We find no merit in the first four issues. We conclude that issues five,

six, seven, and eight were previously determined by our supreme court on direct

appeal and that issues nine and ten are waived. Accordingly, we affirm the

judgment of the trial court.

A brief review of the convicting evidence is helpful. On January 1,

1985, the petitioner and Joanne McNamara, a juvenile, kidnapped the victim,

Brenda Lane, in a Wal-Mart parking lot in Shelbyville, Tennessee. He forced the

victim to drive them to an isolated area outside Manchester, Tennessee, where, he

stabbed her four times in the back and then abandoned her. After his arrest, the

petitioner confessed to the crime and assisted authorities in locating the body. His

confession was introduced as evidence during the trial.

At the penalty phase of the trial, several witnesses testified on behalf

of the petitioner. He was described as a well-behaved, good student prior to leaving

home in 1979. The defendant's girlfriend, Arlene Cajulao, testified about his life

after he left home, when he was in the military service and stationed in Hawaii. Dr.

George Copple, a clinical psychologist, testified about the general abilities of the

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petitioner and what kinds of work he could perform during his imprisonment. Dr.

Robert Watson testified that the petitioner exhibited anti-social adult behavior, was

not remorseful, and malingered mental illness. A more complete account of the

evidence appears in Thompson, 768 S.W.2d at 243.

I

The petitioner first argues that his two trial attorneys performed their

duties ineffectively. In this appeal, the state contends that this ground for relief is

barred as having been previously determined. During the course of the evidentiary

hearing, however, the petitioner was allowed to introduce proof that his trial counsel

was ineffective; at that time, the state did not assert the defense of previous

determination, Tenn. Code Ann. § 40-30-112 (repealed 1995), and made no

objections to the admission of the testimony.

In the direct appeal from the conviction and sentence, the petitioner

made two separate claims regarding his trial counsel:

Issue I: The constitutional rights of the defendant,
pursuant to Article I, Sections 8 and 9 of the Declaration
of Rights, Tennessee Constitution, and under the Fifth,
Sixth, and Fourteenth Amendments of the United States
Constitution were denied defendant by virtue of the
appointments of attorneys John W . Rollins and H.
Thomas Parsons, when they were disqualified to act as
counsel due to their respective representations of Coffee
County and Sheriff Bobby McCullough, sheriff of Coffee
County.

Issue II: The rights of the defendant, Gregory
Thompson, to competent counsel pursuant to Article I,
Sections 8 and 9 of the Declaration of Rights of the
Tennessee Constitution and under the Fifth, Sixth, and
Fourteenth Amendments to the United States
Constitution were denied him by the failure of the court to
appoint counsel experienced in both criminal litigation
and death litigation, neither Doyle E. Richardson nor H.
Thomas Parsons having ever participated in a death
penalty case.

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 In resolving the first claim, our supreme court ruled as follows:

Plainly, an accused is entitled to zealous
representation by an attorney unfettered by a conflicting
interest. To establish a denial of the sixth amendment
right to counsel, it is sufficient to show that an actual
conflict existed. If an attorney actively represents
conflicting interests, no analysis of prejudice is
necessary; it is presumed that his divided interests
adversely affected his representation. But as counsel
conceded, the conflict claimed here was only a potential
one and quite remote; and it was resolved before trial.
Without a showing of prejudice--and an attorney's good
faith assertion of his disqualification is not in itself
ineffective representation--there is no denial of counsel.

Thompson, 768 S.W.2d at 245 (citations omitted).

As to the second issue, our supreme court ruled as follows:

Neither is any prejudice apparent in this record from
counsel's lack of experience in capital cases or from co-
counsel Rollins' non-participation or from inadequate
compensation to Defendant's court-appointed attorneys.
While it is understandable that counsel would second-
guess their decisions in a case such as this, these and
related questions are more appropriately raised by other
counsel when the present attorneys are relieved of their
advocacy role.

Thompson, 768 S.W.2d at 245 (footnote omitted) (emphasis added).

The state argues that our supreme court has already determined the

petitioner received the effective assistance of counsel. "A ground for relief is

'previously determined' if a court of competent jurisdiction has ruled on the merits

after a full and fair hearing." Tenn. Code Ann. § 40-30-112(a)(1) (repealed 1995).

Ineffective assistance of counsel is generally "'a single ground for relief'" under the

post-conviction statute. Cone v. State, 927 S.W.2d 579, 581-82 (Tenn. Crim. App.

1995), app. denied, (Tenn. 1996), cert. denied, _____ U.S. _____, 117 S.Ct. 309

(1996). "'[T]he fact that such violation may be proved by multiple acts or omissions

5
does not change the fact that there remains only one ground for relief.'" Frank

McCray v. State, No. 01C01-9108-CR-00255, slip op. at 10 (Tenn. Crim. App., at

Nashville, Sept. 11, 1992) (quoting William Edward Blake v. State, No. 1326, slip op.

at 3 (Tenn. Crim. App., at Knoxville, March 19, 1991)). A petitioner may not

relitigate previously determined grounds for relief by presenting additional factual

allegations. Cone, 927 S.W.2d at 581-82.

Here, our supreme court clearly ruled on the first issue, holding that a

conflict of interest did not deprive the petitioner of the effective assistance of

counsel. Thompson, 768 S.W.2d at 245. While observing that the conflict issue

was "thoroughly litigated in the trial court," our supreme court pretermitted

consideration of the additional factual allegations in support of the claim of

ineffective assistance. Id. The court ruled that "these and related questions are

more appropriately raised by other counsel when the present attorneys are relieved

of their advocacy role." Id.

It is true that ineffective assistance is a single ground for relief and a

petitioner may not relitigate the issue by presenting new and different factual

allegations in a subsequent proceeding. In this instance, however, our supreme

court has deliberately abstained from ruling on whether some of the factual

allegations entitle the petitioner to relief. Thus, those additional allegations should

not be considered as previously determined. Except for the allegation that his

counsel was ineffective for laboring under a direct conflict of interest, we must

conclude that the issue has not been previously determined.

Nevertheless, raising the issue of ineffective assistance on direct

appeal is a "practice fraught with peril." State v. Jimmy L. Sluder, No. 1236, slip op.

6
at 16 (Tenn. Crim. App., at Knoxville, Mar. 14, 1990). In Sluder, our court, in order

"to prevent the appellant from being prejudiced due to counsel's ill-advised attempt

to raise this issue, [held] that the appellant may raise this issue in a proceeding

brought pursuant to the Post-Conviction Procedure Act." Id. (footnote omitted). An

appellant runs the risk of having the issue resolved "without an evidentiary hearing

which, if held, might be the only way that harm could be shown--a prerequisite for

relief in ineffective trial counsel claims." Jimmy Wayne Wilson v. State, No. 909,

slip op. at 10 (Tenn. Crim. App., at Knoxville, May 29, 1991). The supreme court's

recognition of these risks may have been the basis for their refusal to consider the

full issue.

The petitioner argues that his trial counsel was ineffective for the

following reasons:

(a) by failing to object to hearsay testimony at the
hearing on the motion to suppress the confession;

(b) by failing to interview witnesses who could have been
beneficial to the petitioner's case, especially at the
penalty phase;

(c) by failing to adequately investigate prior head injuries
to the petitioner;

(d) by failing to adequately prepare for cross-
examination of the state's witnesses;

(e) by failing to prepare and present defense witnesses;

(f) by "opening the door" to damaging evidence during
the penalty phase of the trial;

(g) by waiving during the penalty phase the right to
confront the state's expert witness when a deposition
was used in substitution of the appearance of a witness;

(h) by failing to question the assistant district attorney at
the motion for new trial about possible racist remarks,
which would have been useful in establishing a Batson
violation; and

(i) by failing to object to comments by the state upon his

7
 failure to testify.

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 advise given was below "the range of competence demanded of attorneys in

criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he

must show that the deficiencies "actually had an adverse effect on the defense."

Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, he is not entitled to relief. Recently, our supreme court

described the standard of review as follows:

Because a petitioner must establish both prongs
of the test, a failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not
address the components in any particular order or even
address both if the defendant makes an insufficient
showing of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

Moreover, in claims of ineffective counsel, the petitioner is not entitled

to the benefit of hindsight, may not second-guess a reasonably based trial strategy,

and cannot criticize a sound, but unsuccessful, tactical decision made during the

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.

1994); See State v. Martin, 627 S.W.2d 139, 142-43 (Tenn. Crim. App. 1981).

Such deference to tactical decisions of counsel applies only if the choices are made

after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528

(Tenn. Crim. App. 1992).

Finally, on appeal, the findings of fact made by the trial court are

conclusive and will not be disturbed unless the evidence contained in the record

8
preponderates against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim.

App. 1988). The burden is on the petitioner to show that the evidence

preponderates against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.

Crim. App. 1978).

(a)

The petitioner argues counsel was ineffective for failing to object to

hearsay testimony at the hearing on the motion to suppress the petitioner's

confession. On direct appeal, our supreme court summarized the facts surrounding

the defendant's confession:

Thompson was arrested on January 2 in Marietta,
Georgia, and transported to the local police department.
He was advised of his rights, and made an initial
admission to an agent of the Tennessee Bureau of
Investigation that he had been in Shelbyville and bought
the vehicle found on fire.

It is undisputed that Defendant then invoked his
right to counsel and all questioning ceased. T.B.I. Officer
Eubank[s] then consulted with a local detective about
securing counsel, and Detective Parker called, in turn, a
judge and District Attorney General Tom Charron.
General Charron came to the department and introduced
himself to Defendant at 11:30 p.m. According to his
testimony, he understood that Thompson had asked to
see him. He identified himself as a prosecutor and
repeatedly advised Defendant of his right not to speak.
He explained that counsel would be appointed at
arraignment at eight o'clock in the morning.

... At 1:15 a.m., as he admitted in the hearing,
Thompson asked to speak to this attorney again.
Attorney General Charron re-entered the room, identified
himself again, but did not give new "Miranda" warnings.
Thompson then, and later, confessed to the kidnapping-
stabbing and drew a map to the scene. His statements,
the map, and resulting evidence were introduced at trial.

Thompson, 768 S.W.2d at 247.

As stated in the petitioner's brief, "[t]he basi[c] issue at the hearing was

9
whether [he] had reinstituted talking to the authorities after having requested an

attorney." At the suppression hearing, T.B.I. Agent Jerry Eubanks testified as

follows: "I remember Detective Graham coming out of the interview room and telling

the Attorney General that Gregory Thompson wanted to talk with him." See State v.

Crump, 834 S.W.2d 265, 268-69 (Tenn. 1992). The petitioner specifically argues

his counsel was ineffective for failing to object to the admission of this hearsay

evidence.

In our view, the petitioner has failed to demonstrate any prejudice from

the failure to object to the hearsay. See Goad, 938 S.W.2d at 370. Our review of

the transcript establishes that the petitioner actually admitted during the suppression

hearing that he wanted to talk to the District Attorney again. When asked on cross-

examination, "Finally, you told that Detective Graham ... that you wanted to see that

lawyer [the District Attorney] again," the petitioner responded affirmatively. Also,

the following exchange occurred during cross-examination:

Assistant Attorney General: Then you tell Graham that
you want to talk to him again, didn't you?

Petitioner: Yes, sir, after he came in.

Assistant Attorney General: You told somebody, at least,
I say Graham ... you told him that you wanted to talk to
that district attorney?

Petitioner: Yes.

The petitioner acknowledged that he reinitiated contact with the District Attorney.

The hearsay evidence at issue was not necessary to establish that as fact. Thus,

there has been no showing of prejudice. Id.

(b)

The petitioner argues that his trial counsel was ineffective for failing

to interview witnesses who could have been beneficial to his case, especially during

10
the penalty phase. Although not fully articulated, the petitioner's brief suggests that

the witnesses could have been useful to show that head injuries might have

contributed to his commission of the offense. The petitioner specifically complains

about the failure to interview his step-father, his attorney in the military, the mother

of his co-defendant, a witness who worked with the petitioner after his head injuries,

a woman who lived in the residence where the arrest was made, and an employee

at the Middle Tennessee Mental Health Institute (MTMHI).

When the claim of ineffectiveness is predicated upon the failure to

present potential witnesses, their testimony should be offered at the post-conviction

hearing. In this manner the court can consider whether (a) a material witness

existed and could have been discovered but for counsel's neglect, (b) a known

witness was not interviewed by counsel, (c) the failure to discover or interview a

witness prejudiced the petitioner, or (d) the failure to call certain witnesses denied

critical evidence to the prejudice of the petitioner. See Black v. State, 794 S.W.2d

752, 757 (Tenn. Crim. App. 1990). Here, because none of the witnesses testified at

the hearing, the petitioner was simply unable to show prejudice. We cannot

speculate upon the usefulness of these witnesses without the information they could

have provided. Id.

(c)

The petitioner next argues that trial counsel was ineffective for failing

to investigate head injuries he had incurred well before the trial. The petitioner

contends that he had been hospitalized twice for injuries and the failure to produce

evidence of that at trial qualifies as ineffective assistance.

The trial judge made the following findings on this issue:

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 1. Defense counsel made an adequate investigation of
their client's background and prior medical history.
Present counsel presented no proof of mental problems
on the part of Mr. Thompson that would have been a
defense to the charge, or that would constitute a shield
against execution.

2. Counsel did not seek expert and investigative
assistance regarding alleged head injuries to Mr.
Thompson during his youth, or to testify as to his
incompetency at the time of his confession because the
facts and circumstances did not indicate the necessity for
such action.

Defense Attorney Parsons testified that he knew about the head

injuries the petitioner sustained, "one in a car wreck when he was young and ...

another as a result of an assault in the military." While he acknowledged that he

"probably" did not put these facts before the jury, Attorney Parsons claimed that he

was aware of the possible "significance" of the injuries but did not get all of the

medical records. He commented that testing by MTMHI also did not suggest brain

damage. Attorney Richardson concluded that he was not "as thorough as [he]

should have been" but contended that the testing by Dr. Copple and MTMHI did not

reflect "brain damage." Attorney Richardson also testified as follows:

[We d]id try to hire a psychiatrist but that was not
successful and it was... the type thing it was a theory as
to whether to go with his good character and reservoir of
moral upbringing, a man with a great deal of ability that
could be used in the penitentiary and a life sentencing. I
doubt if there will ever be another man on death row that
had as good a background as he did. I don't know of
any, and then the question as to whether to mix into that
or try to accentuate some brain damage that we hadn't
been able to spot, but at the same time, probably with
some more digging may[be] could have and then give the
jury the idea that this man, if he ever gets out of prison
with some brain damage, he will kill ... somebody else,
that is kind of counter productive. We went with one
strategy and probably if we had to do it over again, would
go with the other strategy because that one didn't work.

Dr. Gillian Blair, a clinical psychologist, who reviewed the petitioner's

12
medical records before and after his incarceration and read the reports from

MTMHI, conducted a basic psychological battery and neuropsychological tests. At

the time of the evidentiary hearing in 1995, she had not interviewed the petitioner in

three years. Since his incarceration for this crime, however, the petitioner had been

diagnosed with bipolar disorder, schizo affective disorder, or schizophrenia. It was

Dr. Blair's opinion that in order to determine whether the petitioner's medical

condition could have affected his behavior at the time of the murder, more testing

and background investigation would need to be conducted. She specifically testified

that she could not give an opinion on the petitioner's mental condition at either the

time of the murder or the time of the evidentiary hearing.

"[T]here is a 'greater duty of inquiry into [a] client's mental health

imposed for [the] penalty phase of [a capital] trial.'" Cooper v. State, 847 S.W.2d

521, 529 (Tenn. Crim. App. 1992) (quoting Bertolotti v. Dugger, 883 F.2d 1503,

1516 (11th Cir. 1989)) (second and third alterations in original). Even if a

psychologically based defense could not be supported at the guilt phase, the

evidence may be useful in mitigation at the sentencing phase. Id. Even when court-

ordered examinations result in a finding of sanity, defense counsel should always

attempt to determine whether psychological infirmities may be used as mitigating

evidence. Id.

Having determined there is a duty to investigate whether any

psychological impairments might qualify as mitigating evidence, we nonetheless

conclude that the petitioner has failed to demonstrate any prejudice from the failure

of trial counsel to further investigate the head injuries. The petitioner has failed to

establish that the head injuries had any effect upon his mental stability at the time of

the murder. Further, he has failed to establish that any type of psychological

13
impairment in general may have existed which would have been mitigating

evidence. Because Dr. Blair declined to give an opinion on these important issues,

the evidence does not preponderate against the trial court's finding that the defense

attorneys were not ineffective.

The decision not to further pursue the head injuries in the penalty

phase of the trial also qualified as a reasonable strategy. Trial counsel's decision to

emphasize the petitioner's positive qualities rather than to suggest brain damage,

while unsuccessful, was based upon adequate investigation. "[T]he fact that a

particular strategy or tactic failed or even hurt the defense does not, alone, support

a claim of ineffective assistance." Cooper, 847 S.W.2d at 528. Deference must be

given to an informed trial strategy. This court must refrain from second-guessing

trial counsel's decision to emphasize the petitioner's positive attributes rather than

possible brain damage. Because two experts did not detect brain damage, counsel

cannot be faulted for discarding a strategy that could not be supported by a medical

opinion.

(d)

The petitioner also alleges his counsel was ineffective for failing to

adequately prepare to cross-examine the state's witnesses. His chief complaint is

that Attorney Parsons was ineffective in his cross-examination of Dr. Charles

Harlan, then the State Medical Examiner.

At trial, Dr. Harlan testified that the victim died from the stab wounds.

He believed that she lived for five to ten minutes after sustaining the wounds and

would have been conscious for part of that time. Attorney Parsons, who cross-

examined Harlan acknowledged that he had not interviewed Harlan prior to trial and

14
conceded his surprise that the state utilized the pathologist to prove premeditation

and deliberation.

Again, however, the petitioner has not demonstrated that any

deficiency in the cross-examination of Dr. Harlan affected the outcome of the trial.

The evidence of guilt, including the elements of premeditation and deliberation, was

overwhelmingly established through the other witnesses. In our view, any failure to

more effectively cross-examine Harlan had no effect on the outcome of the trial.

Thus, the petitioner has failed to show prejudice. See Goad, 938 S.W.2d at 370.

(e)

The petitioner next argues that his trial counsel ineffectively prepared

the defense witnesses for trial. He specifically complains that his then girlfriend

Arlene Cajulao was not properly prepared to testify. During the penalty phase of the

trial, Ms. Cajulao testified that she met the petitioner while he was stationed in the

military in Hawaii, where they became romantically involved. She related that her

family was fond of the petitioner and that he was good with the children in her

family. She recalled that the petitioner was assaulted by three "guys" who struck

him on the head with a crowbar. She related that the petitioner, who had

unsuccessfully sought to have his attackers disciplined by the military, became very

paranoid after the assault. She also testified that the petitioner had been court-

martialed for dislocating an officer's shoulder in a pushing incident.

During her cross-examination, the state utilized military records to

establish that the petitioner was removed from the military, not only because of the

assault on the officer, but also because he had struck another person on the chest

and threatened to strike another person with a torque wrench extension bar. Ms.

15
Cajulao also acknowledged that the petitioner, while on military duty, had assaulted

a roommate with a deadly weapon.

The petitioner contends that if his trial counsel had spent more time

with the witness, his negative military history could have been avoided. At the post-

conviction hearing, Attorney Parsons recalled wishing that he had more time to meet

with the witness. He testified that his strategy at trial was to humanize the petitioner

by calling sympathetic witnesses. He was aware of the state's opportunity to rebut

any positive testimony about the petitioner and conceded that his only other option

would have been to present no mitigating evidence at all.

Attorney Richardson testified that "[t]here were certain witnesses that

we had to face a problem of them bringing up the problems that he had in the Navy."

He realized that the cross-examination of Ms. Cajulao might be risky but "didn't

realize we would have it to the extent that it ended up we had ...."

In our view, defense counsel's awareness of the possible dangers

inherent in the cross-examination and their decision to present her positive

testimony anyway was a classic tactical decision. Because the strategy was based

upon adequate preparation, this court must not second guess. In reviewing

counsel's conduct, a "fair assessment ... requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel's challenged conduct, and to evaluate the conduct from counsel's

perspective at the time." Strickland, 466 U.S. at 689. In our view, trial counsel had

little choice but to present as much mitigating evidence as possible even though

there were risks inherent in that strategy.

16
 Moreover, there is nothing in the record to suggest that additional

preparation time with the witness could have prevented the state from effectively

cross-examining her. If Ms. Cajulao were to testify at all to the petitioner's prior

military background, the state would be entitled to rebut that testimony. In summary,

we cannot hold that the evidence preponderated against the finding of the trial court

that trial counsel had performed effectively.

(f)

The petitioner also argues that trial counsel was ineffective by opening

the door to damaging evidence at the penalty phase. First, the petitioner claims

they questioned state witness Frank Floied "in such a fashion as to allow [him] to

comment that shortly after the killing the [p]etitioner appeared 'cool' and acted as if

the killing was nothing." At the guilt phase of the trial, Floied testified that he spoke

directly with the petitioner on the telephone the evening after the arrest. On cross-

examination, Attorney Richardson asked, "Did he appear to be motivated in

attempting to tell you where the body was ...?" Floied responded that "he was the

most cool and direct person that I've ever talked to in this situation.... I had some

disbelief that he could have done it--that anyone could have done it and described it

in that detail as if it was nothing." The record shows that Floied's answer to the

question was not responsive to the question asked. Perhaps trial counsel should

have objected and sought curative instructions. Yet the petitioner has again failed to

establish any prejudice. Officer Roy Phillips of the Tennessee Highway Patrol

testified that he gave the petitioner a speeding ticket only hours after the murder

occurred. He described the petitioner as "cool, calm, and collected.... [Y]ou'd think

he had just come from church the night I stopped him ...." Thus Floied's remark,

while probative as to the element of deliberation, was cumulative and may have

been admissible anyway had the state asked about the petitioner's demeanor. In

17
any event, we find no constitutionally deficient representation in this regard.

The petitioner also complains that the trial counsel opened the door to

devastating evidence by asking Dr. Copple about his good qualities. He points out

that the state was then able to present damaging evidence in rebuttal. Prior to trial,

a competency evaluation by MTMHI suggested the petitioner was a malingerer and

showed no remorse. The records there showed the petitioner was somewhat violent

and disruptive while at the facility. MTMHI classified the petitioner as having adult

antisocial behavior.

Attorney Richardson admitted, "I frankly did not know that ... the [s]tate

could use information given by the defendant to a psychiatrist." Attorney Parsons

testified that their strategy was to emphasize positive attributes of the petitioner and

show the jury that he could lead a productive life in prison. Dr. Copple's testimony

played a key role in this strategy. Although both trial attorneys apparently were

surprised by the fact that the state could use the information acquired by MTMHI,

Attorney Parsons did acknowledge that he knew that positive testimony by Dr.

Copple would open the door for the state to present negative information.

Again, the petitioner has failed to establish any prejudice by whatever

deficiency there may have been in the performance of counsel. The evidence does

not preponderate against the finding that the sentence would have been different if

the attorneys had known the information collected by MTMHI would have been

admissible. In our view, trial counsel had little choice other than to call Dr. Copple in

an effort to establish adequate mitigating circumstances. Even if there had been

proof that trial counsel should have pursued a different strategy, there has been no

indication that another strategy would have been more effective. Because the jury

18
found three aggravators, we cannot conclude that the outcome would have been

any different if the jury had not heard the evidence concerning the testing by

MTMHI. If any witness testified to the petitioner's good character, the state would

have been entitled to rebuttal. The only other option would have been to present no

proof at all. As Attorney Richardson noted, the petitioner had a relatively productive

background; the failure to present some evidence of his prior good behavior might

have qualified as ineffective assistance.

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 (g)

The petitioner next submits that his counsel was ineffective by allowing

a deposition to be used rather than requiring state witness Dr. Robert Glenn Watson

to appear at the penalty phase of the trial. The petitioner attended the deposition;

Dr. Watson was cross-examined by trial counsel. At the sentencing phase, the

deposition, including cross-examination, was read into evidence.

Dr. Watson testified that the petitioner's intelligence quotient was in the

lower average range. There was no real evidence of brain damage. He believed

that the petitioner had malingered on one test which indicated schizophrenia. He

found that the petitioner was untruthful in claiming he could not read. He testified

that the petitioner had a good self-concept and tried to portray himself in a positive

manner, but had some behavioral problems while at MTMHI. He recalled that the

petitioner had tripped one patient and had started a fight. Diagnosed as having

adult antisocial behavior, the petitioner showed very little or no emotion or

expressions of empathy when talking about the murder. Dr. Watson observed no

evidence of remorse.

The petitioner argues his counsel was ineffective for waiving his right

to confront the witness at trial and for failing to comply with Tenn. R. Crim. P. 15.

We need not address whether counsel was deficient by agreeing to the deposition

because it is apparent the petitioner cannot show he was prejudiced by the use of

the deposition. See Goad, 938 S.W.2d at 370 (a reviewing court need not assess

whether counsel's conduct was deficient if no prejudice can be found).

In Edward Samuel L. Foy, Jr., v. State, No. 03C01-9212-CR-00414

(Tenn. Crim. App., at Knoxville, Sept. 28, 1993), a similar issue was raised. There,

20
the deposition was taken outside the petitioner's presence; the petitioner argued his

counsel was ineffective for failing to comply with Rule 15 in taking a deposition. Id.,

slip op. at 6. The petitioner complained that "'[w]here petitioner's own counsel

violated [his] Sixth Amendment right to confrontation ..., counsel's performance was

obviously ineffective and deficient.'" Id. (alteration and omission in original). Our

court ruled that it was purely conjecture to suggest "that the jury would have ruled

for acquittal had the deposition testimony been excluded." Id.

We conclude any claim of prejudice in this case would also qualify as

mere speculation. In fact, the decision to use a deposition instead of live testimony

may have inured to the benefit of the petitioner. If Dr. Watson had appeared in

person at the trial, there is at least the possibility that his stature or demeanor might

have tended to accredit his testimony. An impressive witness is a persuasive

witness. The reading of the deposition into evidence might have been less effective

for the state. The petitioner has not carried his burden of establishing that but for

the deposition testimony, the outcome of the sentencing hearing would have been

different.

(h)

The petitioner also argues that his counsel was ineffective for failing to

question the assistant district attorney at the motion for new trial about racist

remarks; he contends the information would have been useful in establishing a

Batson violation. During jury selection, only one African-American, Alonzo Walker,

was examined as a prospective juror. The state peremptorily challenged that

individual. At the post-conviction hearing, Attorney Parsons testified that some time

after voir dire but before the motion for new trial, he had a conversation with the

assistant district attorney, who purportedly stated, "I hope they fry that nigger." One

21
of the grounds raised in the motion for new trial was whether the trial court erred by

refusing to enjoin the state from using peremptory challenges to exclude any

African-Americans. At the hearing on the motion for new trial, the assistant district

attorney explained that he peremptorily challenged Walker, not due to his race, but

because he was not strongly in favor of the death penalty. No questions were asked

about the racist comment.

At the post-conviction hearing, Attorney Parsons testified that he was

upset by the assistant district attorney's remark. Attorney Richardson, who was not

present at the time the comment was made, did recall that Attorney Parsons was

upset about the conversation. The assistant district attorney flatly denied having

made the remark.

In the order denying post-conviction relief, the trial judge accredited

the testimony of the assistant district attorney and found that the racist comment

had not, in fact, been made. Findings of fact made by the trial judge are conclusive

on appeal unless the evidence preponderates against those findings. Clenny v.

State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). The trial judge who sees and

hears the witnesses is generally in a better position than this court to assess

credibility. The record in this case does not preponderate against the trial judge's

finding. Thus, our scope of review is limited. Because the petitioner has failed to

meet his burden of proving that the racist remark had been made, trial counsel could

not have been ineffective by failing to cross-examine. This issue is, therefore,

without merit.

(i)

Finally, the petitioner insists that his trial counsel was ineffective for

22
failing to object to comments by the state upon his failure to testify. During closing

argument, the state argued that no defense to the crime had been offered. The

petitioner contends that his trial attorneys should have objected to this argument.

The law clearly prohibits any prosecutorial comment upon the

accused's election not to testify. Griffin v. California, 380 U.S. 609 (1965). To do so

constitutes misconduct. Id. at 615. After a careful review of the trial record,

however, we conclude that the argument did not qualify as a comment upon the

petitioner's failure to testify. In our view, comments by the state were a reasonable

assessment of the evidence. In State v. Blackmon, 701 S.W.2d 228, 233 (Tenn.

Crim. App. 1985), the state argued there had been no "excuse or justification"

offered for the offense. Our court ruled that the "comments [were] in the nature of

arguments that the State's proof is uncontradicted .... Our Courts have held that

arguments of this type are not improper comments on the defendant's exercise of

his right not to testify." Id. That ruling controls the disposition of the case. Because

the argument was not improper, there was no ineffective assistance in failing to

object.

II

The petitioner next argues the trial court erred by denying funds for the

employment of a psychologist, psychiatrist, or an investigator to help prepare for the

post-conviction hearing. Tenn. Code Ann. § 40-14-207(b) provides for state funding

of expert services in capital cases:

In capital cases where the defendant has been found to
be indigent by the court of record having jurisdiction of
the case, such court in an ex parte hearing may in its
discretion determine that investigative or expert services
or other similar services are necessary to ensure that the
constitutional rights of the defendant are properly
protected.

23
In Owens v. State, 908 S.W.2d 923, 928 (Tenn. 1995), our supreme court ruled that

the statute also "applies to post-conviction capital cases." The Owens court also

provided guidelines on how to request the services and when the trial court should

grant the services:

To obtain an ex parte hearing, a capital post-
conviction petitioner must submit a written motion to the
trial court, alleging why under the particular facts and
circumstances of the case, investigative or expert
services are necessary to ensure the protection of the
petitioner's constitutional rights. A bare allegation that
support services are needed is not sufficient. In addition,
the motion must include: (a) the name of the proposed
expert or service; (b) how, when and where the
examination is to be conducted or the services are to be
performed; (c) the cost of the evaluation and report
thereof; and (d) the cost of any other necessary
services, such as court appearances. Tenn. Sup. Ct.
Rule 13, § 2(B)(10). Once the petitioner satisfies these
threshold procedural requirements, the trial court must
conduct an ex parte hearing on the motion.

Owens, 908 S.W.2d at 928.

In Owens, the court ruled that the motion should be granted if the

proof at the hearing shows the services are necessary to protect the petitioner's

constitutional rights. Id. The Owens court also noted the statute "vests with the trial

court discretion to determine if investigative or expert services are necessary to

ensure that the movant's constitutional rights are protected." Id. at 929.

As a preliminary matter, the state argues that the petitioner is not

entitled to the benefit of the Owens decision because the opinion was released after

the petitioner's original motion was filed. The state contends the petitioner's motion

should be reviewed under Teague v. State, 772 S.W.2d 915, 927 (Tenn. Crim. App.

1988), where our court held a statutory right to investigative or expert services only

applied at trial. On certain other issues, our supreme court has decided that the

new rule would apply to all cases in the "pipeline ... to all actions pending on the

24
date this decision is announced, and to all causes of action arising subsequently."

State v. McClintock, 732 S.W.2d 268, 274 (Tenn. 1987). This court has previously

applied the "pipeline approach" to this very issue. Michael Eugene Sample v. State,

No. 02C01-9505-CR-00131, slip op. at 24 (Tenn. Crim. App., at Jackson, Sept. 30,

1996), app. denied, (Tenn., Jan. 1, 1997). In Sample, our court held that the

request for services was made before Owens was released; the panel nevertheless

used the standards adopted in Owens to determine whether the trial court erred by

denying the services. Id. We will attempt to do so here as well.

On February 1, 1991, the petitioner filed an ex parte, sealed motion

seeking funds to pay for a psychologist and investigator. The motion alleged that

funding was necessary to establish the following:

(1) whether trial counsel was ineffective for failing to
present proof of the defendant's impaired mental
condition at the time of the offense as mitigating
evidence;

(2) whether trial counsel was ineffective for failing to
investigate the petitioner's head injuries;

(3) whether the petitioner was mentally competent to
give a confession or knowingly waive his right to counsel;

(4) whether the petitioner was mentally competent to
stand trial; and

(5) whether the petitioner is competent to be executed.

The motion was supported by an affidavit of Dr. Gillian Blair, a licensed

psychologist. Dr. Blair's affidavit included information about the cost of her services

and documented her review of the petitioner's post-incarceration medical records,

which indicated that the petitioner had suffered from "escalating psychiatric

problems." Because the petitioner had been diagnosed as having a bipolar affective

disorder, a schizo-affective disorder, or schizophrenia paranoid type, and was taking

lithium, haldol, and cogentin, it was Dr. Blair's opinion "that some degree of such

25
impairment [likely] would have existed at the time of the offense and ... would ...

have been significant mitigating evidence ...."

Brock Mehler, who had experience in investigation and in the

development of mitigating circumstances in capital cases, also submitted an affidavit

estimating the cost of investigative services. The document sought a detailed

investigation into the petitioner's history so that a determination could be made of

the effectiveness of trial counsel in his presentation of mitigating circumstances.

The motion requesting an ex parte hearing was denied. Judge Gerald

Ewell did, however, indicate he would allow a hearing in open court on the matter.

The petitioner filed a motion for reconsideration on the ex parte aspect of the

motion, which was also denied. After an open hearing, the trial court denied the

motion for funds. Permission for an interlocutory appeal was denied.

Judge Ewell subsequently recused himself from the case and the

petitioner renewed his motion for expert funds before his replacement, Judge Buddy

Perry. The petitioner relied on the previous motion filed as well as the

memorandum and applications filed seeking interlocutory appeal. Judge Perry

entered an order staying the matter pending the release of this court's opinion in the

Owens case. See Gaile K. Owens v. State, No. 02C01-9111-CR-00259 (Tenn.

Crim. App., at Jackson, March 25, 1994), rev'd in part, 908 S.W.2d 923 (Tenn.

1995).

Later, Judge William Russell was designated to hear the case. Again,

the petitioner attempted to renew his motion for an ex parte hearing for

consideration of his request. An updated version of Dr. Blair's affidavit was filed.

26
Judge Russell denied the request:1

Petitioner has renewed his motion for State funds
to employ a licensed psychologist or psychiatrist to assist
in the preparation of this case for post-conviction relief.
Funds are also sought for an investigator. Such funds
may only be made available when there is a
demonstrated need. The issue of the petitioner's mental
competency was thoroughly litigated upon his trial. The
Court finds that there has been no demonstrated need
for the funds requested, and the motion is again denied.

A motion to reconsider contended that the expert assistance was

necessary to establish the ineffectiveness of trial counsel for failing to investigate (1)

the petitioner's mental state at trial and when he gave his confession and (2) the

effect of his head injuries. In a pre-trial hearing, Judge Russell stated, "[t]he one

issue that is basically new and will require some expertise on is the matter of his

present mental health." At that point, the petitioner discussed the motion to

reconsider the request for expert services. The trial court, ruling that "the matter of

funding now is not necessary to get her testimony," found that Dr. Blair had already

performed an evaluation and could be subpoenaed to testify. When the petitioner

argued that Dr. Blair's opinions were preliminary and that more testing was

necessary, the trial court denied further delay: "In other words, and I'm not

condemning you gentlemen, but if this man has been demented for months or

years, that should have been brought before the Court long before now." When the

petitioner argued that Dr. Blair's testimony was needed to establish whether trial

counsel was ineffective for failing to present evidence of his head injuries, Judge

Russell agreed to hear proof on that saying, "Let's put it this way. If she goes ahead

and there is something more than a delaying tactic, I will reconsider."

1
It is unclear from the record whether the petitioner filed a new motion for reconsideration
after Judge Russell was appointed or whether Judge Russell was acting on the motion taken under
advisem ent by Jud ge Perr y. All that is in the rec ord is Dr. B lair's affidavit.

27
 Later, the trial court entered an order providing as follows:

The petition[er]'s motion to reconsider the Court's
previous denial of pre-trial funds for investigators and
experts is overruled.

The State is ordered to make the petitioner
available immediately for mental status testing by Dr.
Gillian Blair. The results of Dr. Blair's tests will be made
available to the District Attorney General, and the reports
of any tests hereafter done by the State relative to the
petitioner's present mental state shall be shared with
petitioner's counsel.

The petitioner again filed a request for funds, contending that Dr. Blair

could not perform additional services without compensation and that she had never

been compensated for any of the services rendered. The trial court ruled that no

compensation beyond a witness fee was warranted and observed that the state

medical records could be obtained by subpoena for the post-conviction hearing.

Now, the petitioner argues that he was denied his right to due process

by the trial court's failure to authorize the funds for a psychologist or psychiatrist and

an investigator. He contends the original order denying services was rendered void

when Judge Ewell recused himself. The petitioner insists that the services were

necessary to establish the ineffectiveness of trial counsel by failing to pursue and

present significant mitigating evidence.

This court may not review this issue. The transcript of the hearing on

the motion for expert services conducted in front of Judge Ewell is not included in

the record on appeal. Owens clearly contemplates a presentation of proof: "The

trial court should grant the motion if, at the hearing, the petitioner demonstrates that

investigative or expert services are necessary to ensure the protection of the

petitioner's constitutional rights." Owens, 908 S.W.2d at 928. Without a record of

28
the hearing, this court cannot determine whether Judge Ewell erred by denying the

motion. See Edward Jerome Harbison, No. 03C01-9204-CR-00125, slip op. at 17

(Tenn. Crim. App., at Knoxville, May 20, 1996), app. denied, (Tenn., Nov. 12, 1996).

The petitioner also argues Judge Ewell's order is void because he

recused himself. In support of his contention, he filed as supplemental authority

Bolling v. Anderson, 63 Tenn. 550, 552 (1902), where our supreme court ruled that

a decree entered by an incompetent chancellor "fails, and with it all subsequent

proceedings based upon it." We disagree. The post-conviction statute

contemplates that the trial judge shall preside at the post-conviction hearing, if

available:

If a petition filed pursuant to this chapter raises the
issue of the competency of counsel representing the
petitioner, at either the original trial proceeding or an
appellate proceeding reviewing such original proceeding,
such petition shall be heard and determined by the trial
judge who presided at the trial in which the conviction
occurred ....

Tenn. Code Ann. § 40-30-103(b)(1) (repealed 1995). In this case, however, the

petitioner filed a motion to disqualify Judge Ewell on the grounds that he could not

be partial at the evidentiary hearing because he had already expressed the opinion

that petitioner's trial attorneys gave petitioner a vigorous and thorough defense. In

the Rule 12 report on the trial, Judge Ewell observed that the attorneys "afforded the

defendant as vigorous and thorough defense as [he] has observed in a lifetime of

exposure to the legal system." In his request for the designation of a replacement

judge, Judge Ewell explained his recusal as due to "compelling circumstances." At

the post-conviction hearing, Judge Ewell testified that, in his opinion, the petitioner's

trial counsel performed excellently.

Judge Ewell may have been qualified to hear the motion for services.

29
In our view, he recused himself out of his desire to assure the petitioner the

perception of a neutral arbiter, absent any personal bias as to his claims; however,

even if Judge Ewell believed trial counsel had performed within acceptable

standards of the profession, the petitioner waived any complaint about his

competency to hear the motion. The petitioner knew about the potential bias well in

advance of the motion and chose to ask for relief from Judge Ewell anyway. In

Holmes v. Eason, 76 Tenn. 754 (1882), our supreme court noted that the right to an

impartial judge may be waived where there is no timely objection:

For otherwise the parties would be allowed to experiment
with the court by tacit acquiescence, and raise the
objection when the result of the trial proved to be
unfavorable.

***

And, generally, if the facts are known to the party
recusing, he is bound to make his objection before issue
joined, and before the trial is commenced, otherwise he
will be deemed to have waived the objection .... If the
objection be raised of record, and the court undertake to
proceed notwithstanding, the judgment might be held
void under these principles .... But if no objection be
made, and the court is permitted to go to a trial of the
case on the merits, the judgment is clearly not void on its
face, and something more than the mere existence of the
fact on which the incompetency rests should be required
to authorize a resort to another tribunal.

Id. at 757, 761. This principal was affirmed more recently by our court. In Grant v.

State, 542 S.W.2d 626, 627 (Tenn. Crim. App. 1975), the petitioner had argued his

post-conviction judge "should not have heard this proceeding because he had heard

the early habeas corpus petition." There, counsel at the post-conviction hearing had

commented on the conflict but stated, "we can continue as you will." Id. On appeal,

this court ruled that the petitioner "acquiesced in Judge Hinson hearing the case."

Id. Also, in Woodson v. State, 608 S.W.2d 591, 593 (Tenn. Crim. App. 1980), our

court ruled "that the petitioner's failure to raise the issue prior to trial amounted to a

waiver of his right to question the trial judge's qualifications to hear the case ...."

30
See also James J. Benson v. State, No. 01C01-9401-CC-00026 (Tenn. Crim. App.,

at Nashville, Nov. 8, 1996), app. granted, (Tenn., April 14, 1997) (quoting with

approval the principles stated in Holmes, 76 Tenn. at 757, 761).

The same logic applies here. The recusal issue should have been

raised before the hearing. Judge Ewell's order was not rendered void by his

subsequent recusal. Moreover, without the transcript of the hearing before Judge

Ewell, we cannot conclude there was an abuse of discretion in denying the services.

It is the burden of the appellant to prepare a record on appeal that presents a

complete and accurate account of what transpired in the trial court with respect to

the issue on appeal. Tenn. R. App. P. 24(b). The failure to do so results in a waiver

of such issues and a presumption that the ruling of the trial court was correct. See,

e.g., State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); State v. Draper,

800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). On the record before us, we cannot

conclude the trial court abused its discretion by denying the services.

III

Next, the petitioner argues the trial court erred by refusing to set aside

the designation order by our supreme court and by refusing to reinstate Judge

Buddy D. Perry. After Judge Perry entered an order staying all proceedings until the

Court of Criminal Appeals released its opinion in Owens, the supreme court entered

an order specially designating Judge William Russell to hear the matter. Later, the

petitioner filed a motion requesting that the supreme court's order be "recalled."

That order was denied. A similar motion by the petitioner filed with the supreme

court was denied.

In its order designating Judge Russell to hear the matter, the supreme

31
court cited Tenn. Code Ann. § 16-3-212, which provides, in part, as follows:

Special personnel for expedition of post-conviction
proceedings in capital cases.--The supreme court is
authorized to employ, reassign, or contract with
individuals utilizing special funds appropriated solely for
the purpose of providing prompt and fair adjudication of
post-conviction proceedings in capital sentence cases,
including authority to assign the additional personnel the
duties of personnel reassigned to the post-conviction
cases.

The petitioner argues that the section cannot be construed to allow the supreme

court to remove judges without cause. First, he argues that such an interpretation

violates Tenn. Sup. Ct. R. 11 (III)(d), which places responsibility for reducing docket

delays on the presiding judge of each judicial district. Next, he insists that such an

interpretation violates Article VI, Section 11 of the Tennessee Constitution, providing

for the appointment of special judges in limited situations. Finally, he contends that

such an interpretation violates Article I, Section 8 and Article XI, Section 8 of the

Tennessee Constitution.

This court is bound by the decisions of our supreme court. Our court

may only review the "final judgments of trial courts." Tenn. Code Ann. § 16-5-

108(a). Our court does not have the jurisdiction to review the propriety of an order

by our supreme court. "'[I]t is a controlling principle that inferior courts must abide

the orders, decrees and precedents of higher courts. The slightest deviation from

this rigid rule would disrupt and destroy the sanctity of the judicial process.'" State v.

Irick, 906 S.W.2d 440, 443 (Tenn. 1995) (quoting Barger v. Brock, 535 S.W.2d 337,

341 (Tenn. 1976)). See also Bloodworth v. Stuart, 428 S.W.2d 786 (Tenn. 1968).

Accordingly, we may neither modify nor rescind the order of the supreme court

designating Judge Russell to hear the case.

IV

32
 The petitioner next argues that the opinion in State v. Brown, 836

S.W.2d 530 (Tenn. 1992), should be retroactively applied to his case, thereby

rendering the jury instructions at trial erroneous. In Brown, our supreme court ruled

that, because of potential juror confusion, trial courts should no longer instruct the

jury that the premeditation required to sustain a conviction for first degree murder

can be "formed in an instant." The trial in this case was conducted before the ruling

in Brown; thus, the petitioner would not be entitled to relief unless the holding had

retroactive application.

This court has repeatedly held that Brown did not announce a new

constitutional principle. Retroactive application is not permissible. See, e.g., Lofton

v. State, 898 S.W.2d 246, 250 (Tenn. Crim. App. 1994) (citing three unpublished

cases holding Brown does not apply retroactively). Accordingly, erroneous jury

instructions under Brown could not qualify as a basis for post-conviction relief.

V, VI, VII, & VIII

Issues five, six, seven, and eight may be considered together. They

are as follows:

(V) whether the jury instructions on the "heinous,
atrocious or cruel" aggravating circumstance were
unconstitutionally vague;

(VI) whether the petitioner's confession was unlawfully
obtained and illegally admitted at his trial;

(VII) whether the failure of the trial court to instruct the
jury on the effect of non-unanimity and the option to
recommend life imprisonment violated the petitioner's
rights under the Eighth and Fourteenth Amendments;
and

(VIII) whether the trial court's allowing Dr. Watson to
testify and introduce psychiatric/psychological reports
through his testimony was an unconstitutional denial of
the petitioner's rights.

33
In each instance, our supreme court previously determined the issue on direct

appeal. Thompson, 768 S.W.2d at 248, 251, 252. "A ground for relief is 'previously

determined' if a court of competent jurisdiction has ruled on the merits after a full

and fair hearing." Tenn. Code Ann. § 40-30-112(a) (repealed 1995). A "full and fair

hearing" occurs if the "petitioner is given the opportunity to present proof and

argument on the petition for post-conviction relief." House v. State, 911 S.W.2d

705, 714 (Tenn. 1996) (footnote omitted), cert. denied, 116 S.Ct. 1685 (1996).

The petitioner's fifth issue, that the jury instructions on the "heinous,

atrocious or cruel" aggravating circumstance were unconstitutionally vague has

been considered and rejected by our supreme court. On direct appeal,

the petitioner contended that the aggravator was "unconstitutionally vague under the

holding in Maynard v. Cartwright." Thompson, 768 S.W.2d at 252. Our supreme

court ruled that "the additional [Williams] instructions give the jury sufficient

guidance to prevent arbitrary sentencing." Id. Thus, the issue has been previously

determined. See Tenn. Code Ann. § 40-30-112(a) (repealed 1995).

In State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985), our supreme

court defined the "heinous, atrocious and cruel" aggravator in such a way as to

narrow its application and meet constitutional standards. The petitioner concedes

that these definitions comply with the requirements of Williams; he argues, however,

that subsequent cases, primarily federal cases, have found the instructions given to

be unconstitutionally vague. In Rickman v. Dutton, 854 F. Supp. 1305 (M.D. Tenn.

1994), a federal district court did indeed rule that the jury instructions on this

particular aggravating circumstance were erroneous. The ruling in Rickman,

however, does not bind this court. The United States Supreme Court is the only

federal court Tennessee courts are bound to follow. See State v. McKay, 680

34
S.W.2d 447, 450 (Tenn. 1984); State v. Bowers, 673 S.W.2d 887, 889 (Tenn. Crim.

App. 1984). Thus, the issue is without merit.

The petitioner's sixth issue is that his confession was unlawfully

obtained and illegally admitted at his trial. The petitioner admits that he

unsuccessfully contested the admission of his confession on direct appeal. See

Thompson, 768 S.W.2d at 247-48. On direct appeal, the petitioner cited a "violation

of his fifth amendment right to counsel during custodial interrogation." Id. at 247.

He insisted that an invocation of his right to remain silent was not honored. Our

supreme court agreed that when an accused invokes the right to remain silent, all

questioning must cease. Id. Yet the supreme court ruled the right may be

subsequently waived if the accused initiates further contact with police. Id. This

record demonstrates that the petitioner reinitiated contact with the police and

"voluntarily relinquished" his rights to counsel and to remain silent. Id. Our supreme

court so held. Id.

The petitioner claims, however, that he is entitled to a review of the

admissibility of his statement under the standards enunciated in State v. Crump, 834

S.W.2d 265, 269 (Tenn. 1992). In Crump, our supreme court held that the

admissibility of statements obtained after a person in custody has decided to remain

silent depends on whether his right to cut off questioning was "scrupulously

honored." Id.

Post-conviction relief may be granted when a conviction is "void or

voidable because of the abridgement ... of any [constitutional] right ... including a

right that was not recognized as existing at the time of trial if either constitution

requires retrospective application of that right." Tenn. Code Ann. § 40-30-105

35
(repealed 1995). By this argument, the petitioner implies that Crump created a

"right that was not recognized as existing at the time of trial." There must be

retroactive application "when the new state rule enhances the integrity and reliability

of the fact finding process of the trial." Meadows v. State, 849 S.W.2d 748, 754

(Tenn. 1993).

After Crump was arrested and provided Miranda warnings, he invoked

his right to remain silent. Crump, 834 S.W.2d at 266. Notwithstanding his assertion

that he did not wish to talk to police, the officers arranged to take Crump on a ride

through the crime scene area in the hope of learning more about the crime. Id. at

267. Crump did, in fact, make some incriminating statements and later gave a full

confession. Id. Our supreme court concluded that the police conduct in taking

Crump on the ride "amounted to a violation of the defendant's state and federal

constitutional rights." Id. at 270. Our supreme court also determined that the

subsequent confession given was inadmissible, even though it was made after

Crump had been given Miranda warnings. Id. at 271. In Crump our supreme court

relied on State v. Smith, 834 S.W.2d 915 (Tenn. 1992), a companion case released

the same day, to determine that the confession was inadmissible. In Smith, it was

held that under the Tennessee Constitution the "extraction of an illegal, unwarned

confession from a defendant raises a rebuttable presumption that a subsequent

confession, even if preceded by proper Miranda warnings, is tainted by the initial

illegality," but that presumption may be overcome by the state if the state can show

the "'taint is so attenuated as to justify admission of the subsequent confession.'" Id.

at 919 (quoting in part Oregon v. Elstad, 470 U.S. 298, 335 (1985) (Brennan, J.,

dissenting)).

The Crump decision encompasses two separate holdings: first, that

36
once an accused asserts his right to remain silent, the state must scrupulously

honor that right or run the risk that any statement acquired be excluded in some

circumstances; and second, relying on Smith, where an initial illegal confession is

tainted, the subsequent confession will be presumed illegal. That portion of Crump,

which holds that when an accused invokes his fifth amendment right it must be

honored, does apply to the petitioner in this case. Yet that portion of Crump is not

new law. In fact, the same law was applied in the direct appeal of this case. See

Thompson, 768 S.W.2d at 747. Thus, a Meadows analysis is unnecessary. This

issue has been previously determined adversely to the petitioner and cannot be the

basis for post-conviction relief.2

The petitioner's seventh issue involving challenges to certain jury

instructions at the penalty phase has been previously determined. First, he argues

that the instructions required the jury to find mitigating circumstances only if there

was unanimous agreement on their existence; he contends that the charge violated

the ruling in Mills v. Maryland, 486 U.S. 367 (1988). The petitioner also complains

that the jury was not instructed that if they failed to agree on a sentence, a life

sentence would automatically be imposed. Finally, the petitioner complains as

erroneous instructions that if aggravating circumstances had been proved, such

circumstances must be outweighed by "sufficiently substantial" mitigating

circumstances before a life sentence may be imposed; the petitioner admits this

issue was reviewed on direct appeal, but submits the supreme court "misse[d] the

point."

2
We m ake no findings as to whether the Sm ith holding on the presume d illegality of a
subsequent confession following an initial illegal confession is a new constitutional law to be applied
retrospectively, as that determination is not necessary to resolve this issue. "[C]ourts do not decide
constitutional questions unless resolution is absolutely necessary for determination of the case and
the rights o f the parties ." Owen s v. State , 908 S.W .2d 923, 9 26 (Te nn. 1995 ).

37
 On direct appeal, the petitioner argued "that the jury in this case was

required to agree unanimously on the existence of mitigating circumstances, and

thereby one or more jurors might have been precluded from considering evidence

he or she deemed mitigating in the ultimate determination." Thompson, 768 S.W.2d

at 250. The supreme court reviewed the instructions and ruled that they included

"none of the objectionable features of the instructions in Mills.... There is no merit to

this issue." Id. at 251. Thus, the issue has been previously determined. See Tenn.

Code Ann. § 40-30-112(a) (repealed 1995).

The contention that the instructions were erroneous for using the

phrase "sufficiently substantial" has also been previously determined. On direct

appeal, the petitioner argued that "this phrasing places a burden on the defendant to

demonstrate that death is not the appropriate penalty, and that this burden is a

denial of due process." Thompson, 768 S.W.2d at 251. In rejecting this claim, our

supreme court observed, "[w]e are convinced that in this context, the phrasing does

not operate to preclude consideration of any relevant mitigating factors and that it

satisfies the constraints of the eighth amendment." Id. at 252. Accordingly, this

issue has been previously determined.

The petitioner's eighth issue is that the trial court erred by allowing Dr.

Watson to testify. He argues that the testimony was not proper rebuttal evidence.

On direct appeal, the petitioner had contended that the trial court erred by admitting

Dr. Watson's deposition testimony to rebut the defendant's own expert. Id. at 248.

He insisted that the use of this evidence violated the United States Supreme Court's

holding in Estelle v. Smith, 451 U.S. 454 (1981), where limitations had been placed

on the use of court ordered mental evaluations. Our supreme court ruled that "[a]ll

of these limitations were observed in this case.... We find no constitutional error in

38
the admission of Dr. Watson's deposition." Thompson, 768 S.W.2d at 248. Thus,

the issue has been previously determined.

IX & X

Issues nine and ten may also be considered together. They are as

follows:

(IX) whether the petitioner was denied his constitutional
right to a trial by jury by the exclusion of two prospective
jurors; and

(X) whether the petitioner's constitutional rights were
violated by implicit references to his failure to testify.

Each claim has been waived. We will attempt to explain. The post-conviction

statute in effect when the petition was filed defines waiver:

(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.

Tenn. Code Ann. § 40-30-112(b) (repealed 1995). Our supreme court has held that

"the rebuttable presumption of waiver is not overcome by an allegation that the

petitioner did not personally, knowingly, and understandingly fail to raise a ground

for relief." House, 911 S.W.2d at 714. The court continued, "[w]aiver in the post-

conviction context is to be determined by an objective standard under which a

petitioner is bound by the action or inaction of his attorney." Id. Clearly, each claim

was available on direct appeal.

The petitioner submits as his ninth issue that his constitutional right to

a trial by jury was violated by the unconstitutional exclusion of two prospective jurors

by the trial court. The trial court excluded these prospective jurors because of their

39
moral or religious based reluctance to impose the death penalty. The petitioner now

argues that such an exclusion violates Article I, Section 4 of the Tennessee

Constitution, which provides that no political or religious test shall be required as a

qualification for any office of public trust in Tennessee. He also insists that such an

exclusion violates Article I, Section 6 which provides that no religious or political test

shall ever be required as a qualification for a juror.

This issue was not pursued at trial or on direct appeal. Accordingly,

the claim is waived. See House, 911 S.W.2d at 714. Notwithstanding waiver, our

courts have rejected the merits of this argument. Our supreme court has held that

there is no constitutional violation by excusing jurors whose "views on capital

punishment rendered them unable to follow the law as given to them by the court

and to perform their duties as jurors in accord with their oaths." State v. Jones, 789

S.W.2d 545, 547 (Tenn. 1990) (quoting State v. Bobo, 727 S.W.2d 945, 949 (Tenn.

1987)).

The petitioner's tenth argument, that his constitutional rights were

violated by the repetitive implicit references to his failure to testify, is also

procedurally barred. In closing, the state commented on the failure to present a

defense:

There has been no defense presented to first-degree
murder .... [T]hey [the defense attorneys] have been
able to see the "handwriting on the wall." They are good
attorneys, they saw the proof, they knew there was no
defense, so they have offered no defense to murder in
the first degree.

There was no objection at the trial and the issue was not raised on direct appeal. By

failing to raise the issue on direct appeal, the petitioner has waived it. Tenn. Code

Ann. § 40-30-112(b) (repealed 1995); House, 911 S.W.2d at 714. If we were to

address the merits of the issue, we would have ruled for the state. As stated

40
previously, the argument was not improper and was merely an assessment of the

evidence presented at trial. See State v. Blackmon, 701 S.W.2d 228, 233 (Tenn.

Crim. App. 1985).

Having found no merit to any of the petitioner's claims for post-

conviction relief, the judgment of the trial court is affirmed.

__________________________________
Gary R. Wade, Judge

CONCUR:

______________________________
Joseph M. Tipton, Judge

_______________________________
William M. Barker, Judge

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