        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                      March 19, 2013 Session

            STATE OF TENNESSEE v. WILLIAM EUGENE HALL

                          Circuit Court for Humphreys County
                     Nos. 10526 et al. Jon Kerry Blackwood, Judge


               No. M2012-00336-CCA-R3-DD             Filed October 22, 2013


The Appellant, William Eugene Hall, was convicted of two counts of felony murder, three
counts of first degree burglary, three counts of grand larceny, and one count of petit larceny.
The Appellant received the death penalty for one of the murder convictions, a life sentence
for the other, and an effective eighty-year sentence for the remaining convictions. The
Appellant was unsuccessful in his original direct appeal. State v. Hall, 976 S.W.2d 121
(Tenn. 1998). The Appellant subsequently pursued post-conviction relief. This Court
affirmed the trial court’s denial of that relief. William Eugene Hall v. State, No. M2005-
02959-CCA-R3-PD, 2008 WL 2649637 (Tenn. Crim. App., July 7, 2008). The supreme
court, however, has granted the Appellant a delayed appeal. This appeal stems from the
original and amended motions for new trial, which the trial court denied. Following our
review, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.

Patrick T. McNally and Paul J. Bruno, Nashville, Tennessee, for the Appellant, William
Eugene Hall

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General,
and James E. Gaylord, Assistant Attorney General; Dan Alsobrooks, District Attorney
General and Robert Wilson, Deputy District Attorney General, for the Appellee, State of
Tennessee
                                        OPINION

                                         Overview

        The Appellant and his co-defendant, Derrick Quintero, were each convicted on two
counts of felony murder, along with several other burglary and larceny offenses, and both
were sentenced to death for one of the two murders. State v. Hall, 976 S.W.2d 121 (Tenn.
1998). The trial lasted just over six weeks. The defendants were unsuccessful in their direct
appeal. Id. They subsequently filed individual petitions for post-conviction relief, which
were denied after a joint hearing by the trial court. This Court affirmed the denial of post-
conviction relief. William Eugene Hall v. State, No. M2005-029590CCA-R3-PD, 2008 WL
2649637 (Tenn. Crim. App. July 7, 2008). The supreme court denied Quintero’s Rule 11
application, but granted the Appellant a delayed appeal due to the ineffective assistance of
trial counsel during the motion for new trial and direct appeal. No. M2005-02959-SC-R11-
PD (Order, Oct. 30, 2009).

         This appeal stems from the denial of the original and amended motions for new trial
filed by the Appellant. On appeal, he again challenges the sufficiency of the convicting
evidence, and also argues a new trial is warranted due to newly discovered evidence. In
addition, he contends he was improperly shackled in front of the jury during trial, and he
advances a claim of ineffective assistance of trial counsel. The Appellant also argues a new
trial is warranted because the judge the supreme court appointed to preside over the case
following remand, Judge Allen W. Wallace, died before the hearing on the amended motions
for new trial. Senior Judge Jon Kerry Blackwood was appointed to preside over the case
following Judge Wallace’s death.

                                        Background

        The Appellant was part of a group of eight inmates who escaped from prison in
Eddyville, Kentucky on Thursday morning, June 16, 1988. Three of the escapees were
captured near the prison in Kentucky. Five of the escapees, the Appellant, Quintero, James
Blanton, Joseph Montgomery and Ronnie Hudson, eventually made their way to a community
in Stewart County, Tennessee near Kentucky Lake. Several homes in the area were reported
burglarized prior to Monday, June 20, 1988, and the victims in this case were murdered in
their home the night of June 20th. Montgomery and Hudson left the other three escapees and
returned to Kentucky on Sunday, June 19, 1988, and they spent the next few days with
Hudson’s family until their arrest on June 22, 1988. The Appellant, Quintero and Blanton
fled Stewart County and were seen in Memphis on Tuesday, June 21, 1988. The Appellant
was eventually captured in Texas, and Quintero and Blanton were subsequently apprehended
in Mexico. Although Blanton was indicted along with the Appellant and Quintero, he

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successfully moved to sever his case. Blanton also received the death penalty for one of his
two murder convictions. State v. Blanton, 975 S.W.2d 269 (Tenn. 1998). Blanton died in
prison in 1999.

       The following summary of the trial testimony is from the supreme court’s opinion on
the original direct appeal:

              The proof introduced by the State during the guilt phase of the trial
       demonstrated that Myrtle and Buford Vester were murdered in their home in
       the Leatherwood community of Stewart County, which is situated on Kentucky
       Lake and in close proximity to the Tennessee-Kentucky border. The Vesters
       were murdered sometime after their son left their home at 6:00 p.m. on
       Sunday, June 19, 1988 and sometime before their bodies were discovered by
       their neighbor around 10:00 a.m. on Wednesday, June 22, 1988.

               Along with six other men, the defendants in this appeal, Derrick
       Quintero and William Hall, escaped from the Kentucky State Penitentiary at
       Eddyville during the early morning hours of June 16, 1988. Three of the
       escapees [Bobby Sherman, Leo Sperling, and Floyd Cook] were apprehended
       in the vicinity of the prison on or before June 18, 1988. However, the other
       five escapees, including Quintero, Hall, James Blanton, Joseph Montgomery,
       and Ronnie Hudson left the area in a 1966 Chevrolet pick-up truck which they
       stole from Curtis Rogers who lived about one-half of a mile from the prison
       facility. [The truck was located seventeen months after the escape in a wooded
       area of Stewart County, Tennessee. It had been completely covered with branches.]

              The Stewart County Sheriff’s department was notified at 2:30 a.m. on
       June 16 that inmates had escaped from the penitentiary at Eddyville. After
       news of the escape had been broadcast to the public, the Sheriff’s department
       received a telephone call from Zachery Pallay, a resident of the Leatherwood
       community, warning that Quintero was familiar with the area and would
       probably seek refuge there. The Sheriff’s department’s also received several
       reports of suspicious individuals in the Leatherwood area including a report of
       three men attempting to flag down a car. However, when a rash of burglaries
       broke out in the Leatherwood community, the Sheriff’s department became
       convinced that the escapees were in the area. The burglarized residences in
       Stewart County were owned by Jim McMinn, Neal Foster, Essie Settles,
       Alfred Cherry, Thomas Harris, and John and Virginia Crawford.

              Though it is not possible to determine from the record the precise order

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in which the burglaries occurred, the proof demonstrates that five of the six
burglaries occurred before 1:00 p.m. on Sunday, June 19, 1988.

        The first burglary was reported and occurred on June 18, 1988. That
day, Jim McMinn of Clarksville, Tennessee, arrived at his cabin in the
Leatherwood area at approximately noon. He left the cabin to go fishing in his
boat at around 1:00 p.m. Upon returning to the cabin at 2:30 or 3:00 p.m.,
McMinn noticed a box of shotgun shells lying on the floor and discovered that
his loaded .22 caliber pistol was missing from the bedroom. The telephone in
his cabin had been removed from the wall, and the outside portion of the
phone line also had been severed. McMinn went to his truck and discovered
that the windows had been rolled up and the ignition destroyed with his ax.
The telephone from McMinn’s cabin was in the bed of the truck.

       Following the report of the McMinn burglary on June 18, the Sheriff’s
Department initiated an intensive search of the area, utilizing helicopters, four-
wheel drive vehicles, and tracking dogs. At one point law enforcement officers
chased some individuals on foot through the woods, but they were not able to
overtake the persons suspected to be the escapees.

        At some point, perhaps during that chase, Hudson and Montgomery
became separated from the defendants and Blanton. Hudson and Montgomery
left the Leatherwood community and drove to Lebanon, Kentucky in a 1982
White Ford Fairmont they stole from Essie Settles, a resident of the Standing
Rock Community, which is approximately six highway miles from the
Leatherwood community. Montgomery’s fingerprint was found on Settles’
garage door. Hudson’s fingerprint was found inside the car when it was later
recovered. Settles had seen the car in her garage around 10:00 a.m. on
Saturday morning and discovered that it was missing at approximately 1:30
p.m. on Sunday afternoon. The proof demonstrated that the car was stolen
sometime Saturday night or before daylight on Sunday morning. Burned
matches were found inside the garage indicating that it had been dark when the
theft occurred. In addition, when she watered her flowers around 8:00 a.m. on
Sunday morning, Settles noticed that someone had removed the hose from the
outside faucet during the night. Settles stated that the hose had been connected
when she had used it on Saturday evening around 6:00 p.m.

       Hudson and Montgomery arrived at Hudson’s brother’s apartment in
Lebanon, Kentucky on Sunday, June 19, at approximately 1:00 p.m. They were
driving a white car with Tennessee license plates, which witnesses identified

                                        4
at trial as the vehicle which had been stolen from Settles. Hudson’s brother and
a friend accompanied the two escapees to a secluded area on the river where
Hudson and Montgomery hid the stolen car among the weeds. Around 6:00 or
6:30 p.m., Hudson’s brother left the two escapees in the company of Hudson’s
mother and sister. The next day, Hudson’s sister, her two children, and Martha
Grover picked up the two escapees and transported them to Grover’s apartment
where they stayed until early evening on Tuesday, June 21. The following day,
Wednesday, June 22, Kentucky authorities apprehended both Hudson and
Montgomery near the location where Settles’ car had been hidden. Shots were
exchanged prior to the convicts’ apprehension. Hudson and Montgomery had
in their possession McMinn’s .22 caliber pistol and a .22 caliber pistol which
had been stolen from another resident of the Leatherwood community, Neal
Foster. Two live rounds were recovered from Foster’s pistol, and four spent
shells were recovered in the area. While this proof demonstrated that Hudson
and Montgomery were some two hundred miles away in Lebanon, Kentucky
when the Vesters were murdered in Stewart County, Tennessee, it also showed
that the McMinn and Foster burglaries occurred before 1:00 p.m. on June 19.

        The Cherry and Harris burglaries were discovered around 3:00 or 4:00
p.m. on June 19, 1988 by Alfred Cherry. Cherry’s trailer was located
approximately one-half of a mile from the murder victims’ residence. The
inside of the trailer was in disarray. A bed was unmade and wet towels were
in the bathroom. The refrigerator light switch had been taped down to prohibit
the light from operating when the refrigerator door was opened. The hot water
tank had been set on high.

        Missing from the trailer were two bedspreads, a green thermal blanket,
a sleeping bag, a portable radio, approximately fifteen cassette tapes, a
rechargeable flashlight, a small handsaw, six knives, coffee mugs, various
canned goods, a gallon of homemade wine, two bottles of bourbon, a six-pack
of beer, a toothbrush, underwear, and two paperweights bearing the
Cumberland Electric logo. [These paperweights were found seventeen months
later in the bed of the 1966 Chevrolet truck which the escapees had stolen near
Eddyville and driven to the Leatherwood community.]

        Cherry did not have a telephone in his trailer. Upon discovering the
burglary, he went next door to call the police on the telephone in the trailer
owned by his brother-in-law, Thomas Harris. Cherry discovered that Harris’
trailer had also been burglarized. The trailer had been ransacked. The
refrigerator light had been removed. The sink was full of dirty dishes, and food

                                       5
was in a skillet on the stove. Wet towels and sheets were strewn about and
cigarette burns were all over the floors. Stolen from the trailer were all the
canned food items, two quilts, silverware, butcher knives, towels, toilet
articles, and a fishing tackle.

       When Harris later received his telephone bill, he realized that several
unauthorized long distance telephone calls had been placed from his trailer.
Three of the unauthorized calls had been placed to a number in Springtown,
Texas. These calls occurred on Sunday, June 19, at 3:51 a.m., 8:55 a.m. and
9:19 a.m. Two additional unauthorized calls were placed to a telephone
number in Hopewell, Pennsylvania, at 4:00 a.m. and 9:19 a.m. The telephone
number called in Springtown, Texas, was listed to Bryan Quintero, who is a
brother of Derrick Quintero. The telephone number called in Hopewell,
Pennsylvania, was listed to a Barbara Vasser, William Hall’s girlfriend.

       At trial, Vasser testified that Hall told her during their first telephone
conversation after the escape that his parole had been denied. Hall would not
reveal to Vasser his and Quintero’s location, but told Vasser that there were
helicopters in the area searching for the escapees and that he and Quintero had
been separated from Hudson and Montgomery.

       Two knives taken from the Cherry trailer were found at Neal Foster’s
residence indicating that it was burglarized sometime after the Cherry and
Harris trailers. Again, however, the burglary occurred sometime before 1:00
p.m on June 19, because Montgomery and Hudson had in their possession a
gun which had been stolen from the Foster residence when they were apprehended.

       However, Foster did not discover the burglary until Tuesday, June 21.
The residence had been ransacked. Food was on a kitchen counter, deer steaks
were in the microwave, and his binoculars were sitting on a kitchen counter.
A green ammunition box, a plastic bag full of old coins, a flashlight, and the
holster for his .22 caliber RG pistol were on the floor of the living room. The
hallway floor was littered with a Diet Pepsi can, a tin can of old coins, a
notebook that once had old coins in it, some socks, a laundry basket with
clothes that did not belong to him, and a pair of white tennis shoes that did not
belong to him. Towels were strewn around the house. He found in his
bathroom a pocket knife, towels, a pair of socks, a .22 caliber shell box, and
a 20 gauge shotgun shell. The beds were unmade and had items spread on top
of them. The master bedroom dresser drawers were open, and items were
scattered all around the bedroom, including two walkie-talkies, a hacksaw, and

                                       6
a 12 gauge shotgun barrel. In the front bedroom, he found several hats,
matchbooks, a jar of marshmallow cream, a box of graham crackers, and a
small drinking glass.

        In a walk-in closet in the residence Foster had kept a .22 caliber pistol,
a Glenfield .22 caliber rifle, a Marlin .30-30 caliber lever action rifle, a 20
gauge shotgun, a single shot shotgun, and a Remington Model 1100, 12 gauge
shotgun. Following the burglary, he found the 12 gauge shotgun lying on his
bed. Someone had attempted to saw off the barrel and had rendered the gun
inoperable. The 20 gauge shotgun was missing from his house, but a portion
of the gun’s barrel had been sawed off and left in Foster’s bedroom. Also
missing after the burglary were his .30-30 lever action rifle and ammunition
for various weapons, including .30-30 accelerator rifle bullets, .30-30 caliber
rifle shells, 20 gauge shotgun shells, and 12 gauge shotgun shells. In addition
to the ammunition, several coins which Foster had collected, including silver
dollars, were taken in the burglary.

        The authorities found several latent prints at the Foster residence, and
identified some of them as belonging to the escapees. A latent left thumb print
matching that of Quintero was found on a full box of Federal 12 gauge
shotgun shells. A latent right ring fingerprint matching that of Quintero was
found on another Federal 12 gauge shotgun shell box. A right middle finger
and a right index fingerprint matching Blanton’s print was found on a Federal
field load 12 gauge shotgun shell box. A right palm print matching that of
Quintero was lifted from one of the gun barrels. A latent right ring fingerprint
matching that of Hall was lifted from a Diet Pepsi can.

         Though the Crawford burglary was not discovered until after the
Vesters’ bodies had been discovered, a glove taken from the Crawford
residence was found at the home of the murder victims, indicating that the
burglary actually occurred before the murder. The Crawford residence was less
than a quarter of a mile from the Vesters’ home. John and Virginia Crawford
had left their trailer, clean and orderly, around 2:00 p.m. on Sunday, June, 19.
Following the burglary, they found their kitchen ransacked. Canned foods,
crackers, and candy bars from the cabinet and refrigerator had been eaten.
Prints were lifted from several items in the trailer. A latent left thumb print
matching that of Hall was found on the bottom of a can of ham. A latent right
index fingerprint left by Blanton was lifted from a Butterfinger candy wrapper
found inside the refrigerator. The Crawfords identified two gloves found at the
trailer, one white jersey and one brown jersey, as belonging to Mrs. Crawford.

                                        7
A patch on one of the gloves had been sewn on by Mrs. Crawford. Mr.
Crawford testified that a flashlight had also been taken from the trailer. One
of the gloves found at the Crawfords’ trailer matched a glove found outside the
Vesters’ front bedroom window. A fiber analysis of the two gloves indicated
that they were likely originally sold together as a pair.

        With respect to the timing of the murder, the proof showed that late on
Monday evening, June 20, John Corlew and Arthur Jenkins arrived at the
Leatherwood boat dock, launched their boat, and night fished in the
Leatherwood Bay. Between 11:00 p.m. and 12:00 a.m. they heard five
gunshots emanating from the direction of the Vesters’ residence. Corlew
testified that he first heard two gunshots that were fairly clear, and after a
pause, he heard two additional shots, another pause, and one final shot. Corlew
testified that the first two shots and the second two shots sounded as if they
were from different weapons. Mr. Jenkins testified that the two initial shots
sounded like repercussions from a pistol. Both Jenkins and Corlew heard a
total of five gunshots.

        The victims, Buford and Myrtle Vester, were last seen alive around 6:00
p.m. on Sunday June 19 by their son Wayne. He, along with his twelve-year-
old son, had arrived at his parents’ home for a weekend visit on the evening of
Friday, June 17. He had picked up groceries for his parents including Pepsi
colas, lunch meat, bread, and milk. Wayne Vester left his parents home on
Sunday, June 19, at approximately 6:00 p.m. At that time, the Vesters were
alive and well. Wayne attempted, unsuccessfully, to reach his parents by
telephone once on Monday, June 20, and twice on Tuesday, June 21.
Concerned, Wayne called their neighbor, Howard Allor, who lived
approximately one quarter of a mile from the Vesters, but Allor had not seen
them since the preceding Friday morning. When Wayne was still unable to
reach his parents on June 22, he again called Allor and asked him to check on
them. Allor drove to the Vesters’ residence and discovered their dead bodies.
He attempted to telephone the Sheriff from their residence, but the telephone
was not functioning, so he returned home and reported the murders to the authorities.

       David Hicks, Sheriff of Stewart County, was notified of the Vester
murders at approximately 1:00 or 1:30 p.m. on Wednesday, June 22. The
Tennessee Bureau of Investigation (“T.B.I.”) conducted the primary
investigation of the crime scene. The only entrance to the Vester residence was
a screen door located at the side of the house opposite to the victims’
bedrooms. The screen door had not been damaged. However, the front window

                                         8
was open, and the screen from the front window was lying on the ground near
Myrtle Vester’s bedroom window which was located at the back of the house.
Underneath the front window was a concrete block which apparently had been
taken from the front of a shed located at the back of the house. A cloth glove
which matched a glove found at the Crawfords’ residence was found on the
ground beside the concrete block. An unopened Pepsi cola can lay next to the
walkway to the screen door of the house. The packages of Pepsi cola that
Wayne Vester had brought his parents were missing from the porch. The
Vesters’ maroon 1985 Pontiac Bonneville also was missing. The wires to the
telephone connection box outside the Vesters’ residence had been damaged
and the line was dead. A live 20 gauge Federal shotgun shell with number 6
bird shot was found lying near the electrical box. A spent 20 gauge number 4
shot Federal shotgun shell casing was found near the shed approximately 18
feet from Mr. Vester’s back bedroom window.

       The windows to the victims’ bedrooms were located along the back of
the house. Buford Vester’s bedroom window frame was visibly bent. The
screen covering the window had a hole in it which indicated that Mr. Vester
was shot at least once from outside the house. Some the glass louvers were
broken, and shards of glass were found lying on the bed. Mr. Vester’s body
was found on the floor next to his bed. The covers were drawn back, and blood
was on both the pillow and the bed. Number 4 and 5 bird shot pellets were
retrieved from Mr. Vester’s room. Two shot shell filler wads were found
beside Mr. Vester’s body, and a 20 gauge plastic shot wad was recovered from
beside his head. A plastic shot sleeve, one shot shell, a plastic shot wad, and
several shot pellets, all either number 4 or 5 bird shot, were recovered from
Mr. Vester’s body.

        The victims were in separate bedrooms joined by a bathroom. Myrtle
Vester’s body was found lying in a pool of dried blood on the floor of her
bedroom next to the bathroom. Mrs. Vester had been shot three times, once
with a 20 gauge shotgun, once with a high-powered rifle, and once again with
either a shotgun or a high-powered rifle. She also had been stabbed thirteen
times. A copper-jacketed bullet was recovered from her body. Blood was
found on Mrs. Vester’s bed, and a considerable amount of blood was found on
the bathroom floor. Blood was splattered on both the bathtub and the
commode, and the bottoms of Mrs. Vester’s feet also were covered in blood.
The screen covering Mrs. Vester’s bedroom window also had a hole in it,
indicating that at least one shot had been fired from outside. The open and
unbroken condition of the glass louvers indicated that the high-powered rifle

                                      9
or shotgun had been near the window when it was fired. Shot was sprayed all
over the house, especially the kitchen. All of the shot pellets found in the
house were either number 4 or 5.

       On the victims’ sofa authorities found a portion of The Tennessean,
dated Monday, June 20, 1988. The local mail carrier testified that the victims
did not receive The Tennessean by mail. A live 20 gauge shotgun shell with
number 7.5 shot was found lying on the floor in the front bedroom next to a
ransacked jewelry box.

        Dr. Charles Harlan, the medical examiner, performed an autopsy on
each victim and testified that the Vesters had died within two hours of
consuming dinner. He stated that the victims had been shot a total of five
times, and a minimum of three different weapons had been used to murder them.

       Mrs. Vester had sustained three gunshot wounds. Gunshot wound A,
located at the right portion of Mrs. Vester’s chest just below her collarbone,
measured approximately a quarter of an inch and was basically round in shape.
This wound resulted when a copper jacketed bullet entered Mrs. Vester’s body
and lodged in her left arm. Wound B resulted from a shotgun blast and was
located in the upper arm. This wound measured 3.4 inches by 1.8 inches, was
jagged, with an irregular edge, and had multiple associated tangential
abrasions. Wound C resulted from either a high-velocity rifle or shotgun. This
gunshot blast had severed the two bones in Mrs. Vester’s right forearm,
leaving her hand and wrist attached to her body by a piece of tissue, consisting
of only skin, muscle, and fat. Dr. Harlan could not determine the order in
which these three gunshot wounds were inflicted.

        Mrs. Vester also had sustained thirteen stab wounds, one to the middle
of her back and twelve to her head, neck, and shoulder region. A majority of
the stab wounds were inflicted to the left side of her head and neck. Dr. Harlan
surmised that the puncture wounds were made by a squared object with a sharp
edge, such as a kitchen or hunting knife. Two of the stab wounds severed her
right and left common carotid arteries. The right carotid artery was 90 percent
severed, and the left was 10 percent severed. Dr. Harlan testified that either the
injuries to her carotid arteries or the gunshot injury to her right forearm would
have been fatal. Dr. Harlan determined that Mrs. Vester could have survived
the brutal attack for up to 15 minutes.

       Mr. Vester had sustained two gunshot wounds. Shotgun wound A was

                                       10
located at the head and neck juncture. The total dispersal pattern of shotgun
pellets was 13 inches. Wound A caused significant injury to his left lung,
aorta, and pulmonary artery. Shotgun wound B was to Mr. Vester’s right breast
and caused trauma to his right lung and to his liver. Dr. Harlan recovered
shotgun pellets and a shot column from Mr. Vester’s chest and abdomen. Dr.
Harlan opined that Mr. Vester could have survived from four to twelve
minutes after sustaining the gunshot injuries.

        On June 21, 1988, around 8 a.m., employees of the Memphis Funeral
Home observed three men, in a maroon Pontiac which was later identified as
the victims’ car, enter the funeral home parking lot and park the car
approximately 250 feet from the building. Two employees of the funeral home
testified that one man got out of the front seat, took his tank top off, and put
on three additional shirts. The two other men also exited the car. None of the
witnesses could make a positive identification of the three men. The witnesses
testified that all three men were white and about the same height, but two of
the men were approximately 180 pounds and had darker hair. They stated that
all three men had facial hair. One funeral home employee described the three
men as having beards and stated that one had long hair.

       The three men remained in the parking lot for approximately five to
eight minutes. Then, after one of them took something out of the trunk, the
three men walked towards a hospital across the street from the funeral home.
One of the men turned, walked back to the car, and appeared to have placed
an item back into the car. He then joined the two other men, and then all three
walked away. The funeral home employees assumed that the three men were
working on a construction project at the hospital. However, when the car had
not been removed by Thursday, the funeral home employees contacted the
Memphis Police Department.

        On the morning of Thursday, June 23, the Memphis Police Crime Scene
Squad responded to the call from the Memphis Funeral Home. The police
found a 1985 maroon Pontiac Bonneville in the funeral home’s parking lot.
The vehicle matched the description of the victims’ vehicle. The keys were in
the car’s ignition. The officers found a sawed-off 20 gauge shotgun containing
one live round under the floor mat behind the driver’s seat which was later
identified as the weapon stolen from the Foster residence, and as the weapon
from which a spent shell found outside the Vesters’ residence had been fired.
Foster was able to identify the weapon by its serial number; however, the gun
also had Foster’s full name carved into it. The police also discovered under a

                                      11
floor mat a .30-30 caliber cartridge which matched ammunition that had been
taken from the Foster residence. From a crumpled Budweiser beer can which
also was found under the back seat police were able to lift three latent prints
belonging to Blanton. No other prints were found in the car. The officer noted
that the extremely hot temperatures in Memphis at the time the car was found
made it difficult to lift intact prints. Other items retrieved from the vehicle
included a Ray-O-Vac flashlight, similar to one taken from the Crawford
residence, electrical tape, thirteen 20 gauge shotgun shells, three 12-ounce
Pepsi colas, one 12-pack of Pepsi colas, a portable electric air compressor, a
Black & Decker car vacuum, and a brown umbrella.

        Curtis Jones, who was a security guard at the Memphis Greyhound bus
station, testified that he worked Tuesdays and Wednesdays at the bus station
in June of 1988. The bus station, located in downtown Memphis was
approximately one mile from the Memphis Funeral Home. His job was to
prevent loitering at the bus station. Mr. Jones sat in a booth and observed
people who came inside to determine whether they purchased tickets.
Periodically, he would walk around and ask people whether they had tickets
or if they were waiting for someone to arrive.

        Mr. Jones recalled three men entering the bus station either Tuesday,
June 21, or Wednesday, June 22, between 11 a.m. and 1 p.m. Two of the men
sat down and watched television. One of the two seated men spoke to a man
seated nearby. The third man, who had darker skin and appeared Hispanic,
used a telephone. Mr. Jones approached the two seated men and asked them
whether they had tickets. A man, whom he identified as Blanton, told him that
they would leave as soon as their friend finished using the telephone. The three
men remained in the station five to ten minutes. Later that same day, the
Memphis police stopped by the bus station with a photographic line-up of the
eight escapees. Jones responded that Blanton and Hall had previously been at
the station. Later in the week, Jones spoke with T.B.I. Agent Stout. Jones
identified Blanton and Hall from a photographic line-up and made an in-court
identification of Hall as one of the men at the bus station.

       The Blue Movies West adult bookstore and entertainment center was
located across the street from the bus station. Shirley Denise Morrow testified
that she worked as a cashier in the bookstore in June of 1988. On Tuesday,
June 21, the day before her birthday, three men entered the bookstore around
9:00 or 10:00 a.m. Two of the men were white, and one appeared Mexican.
The men traded a few silver dollars and half dollars for tokens. Morrow also

                                      12
purchased some of the silver dollars and half dollars for herself.

        The men went to the back of the establishment to watch movies.
Darlene Christof, a dancer at the establishment, testified that three “scruffy”
men entered her booth on June 21. Two of the men were white, and the other
appeared either Hispanic or Mexican. Ms. Christof informed the men that only
one was allowed to remain in the booth. Two of the men left. From a
photographic line-up, she identified the man who remained in her booth as
Quintero. Quintero later gave her several silver dollars and tried to sell her a
class ring and a man’s wedding band.

        The men then returned to the front of the establishment approximately
fifteen to twenty minutes later. They attempted to sell Morrow what appeared
to be a class ring and a wedding band. Morrow declined and suggested they try
a pawn shop. One of the men indicated that they did not have any
identification and offered Morrow fifty dollars if she would allow them to stay
in the movie house until their transportation arrived. Morrow declined their
offer. Christof then came out from the back of the establishment and pretended
to use the telephone. When Christof commented that the three men resembled
the escapees from the Kentucky prison, they left. Morrow then contacted the
police.

       When shown a pre-trial photographic array of the eight escapees,
Morrow identified Blanton, Quintero, and Hall as the three men who had
visited the bookstore. Morrow turned over to the authorities the six silver
dollars she had purchased from the men, and later, Foster identified the coins
as those stolen from his residence. Morrow also made an in-court identification
of both Quintero and Hall.

        Lt. Thomas Pryor, an employee at the Eddyville penitentiary, testified
that Quintero had long hair, a moustache, long side burns and a goatee prior
to the escape. Lt. Pryor stated that he had never seen Hall with a beard.

        Hall was eventually captured in El Paso, Texas. Both Blanton and
Quintero were captured in Mexico near El Paso. Barbara Vasser, Hall’s
girlfriend at the time, testified that her mother called the Pennsylvania State
Police after Hall called her for a third time following the escape. Afraid for
Hall’s safety, Vasser notified the authorities that she had agreed to wire money
to him at the Western Union on North Stanton Street in El Paso, Texas. Hall
was apprehended by agents of the Federal Bureau of Investigation (“F.B.I.”)

                                      13
       when he entered the Western Union in El Paso at approximately 2:20 p.m. on
       July 6, 1988.

               On July 10, 1988, Quintero and Blanton were apprehended by Mexican
       officials at the Santa Fe Hotel in Juarez, located just across the border from El
       Paso, Texas, and transported across the international bridge. F.B.I. agents took
       custody of both Quintero and Blanton from Mexican officials at a border
       checkpoint. Found in Quintero’s possession when he was taken into custody
       was an old wallet bearing an imprint of Neal Foster’s driver’s license.

              Based upon the proof summarized above, the jury convicted both Hall
       and Quintero of two counts of murder during the perpetration of first degree
       burglary, three counts of grand larceny, one count of petit larceny and three
       counts of first degree burglary.

Hall, 976 S.W.2d at 124-32.

       Although the evidence in this case was wholly circumstantial, the supreme court
affirmed this Court’s conclusion that the convicting evidence was sufficient. Id. at 140-141.

                            Alleged Newly Discovered Evidence

       In his amended motions for new trial, the Appellant argues that his own post-
conviction and motion for new trial testimony, the testimony of two of his fellow inmates,
and the deposition of Quintero’s father, in addition to the record of a pay telephone at the
Greyhound Bus Station in Memphis reflecting that a call was placed at 11:33 p.m. on June
20, 1988, to a telephone in the same area code in Texas where Quintero’s brother lived,
represent newly discovered evidence of his innocence. Accordingly, Judge Blackwood
agreed to review some of the evidence proffered in support of the Appellant’s post-
conviction and error coram nobis petitions. This alleged newly discovered evidence is
summarized below.

        The Appellant was the only witness who testified at the hearing on the motion for new
trial. His testimony is basically the same as his testimony at the post-conviction hearing
wherein he claimed he was in Memphis the day the victims were killed. See Hall, 2008 WL
2649637 at 20-21. The Appellant said Quintero’s father dropped off him and Quintero at the
Greyhound station in Memphis around 10:00 or 11:00 a.m. on June 20th. The Appellant
testified that Quintero placed a call from a pay phone at the Greyhound station around 11:30
p.m. that same night. The Appellant could not adequately explain why Mr. Quintero drove
all the way from Texas to Nashville to pick up the Appellant and Quintero, then drop them

                                              14
off in Memphis on his way back to Texas (instead of driving them to Texas too, which is
closer to their planned final destination in Mexico), other than to state that he and Quintero
had an arrangement with Blanton and Hudson to meet in Memphis before fleeing to Mexico.
The Appellant testified that Mr. Quintero could not wait around for Blanton and Hudson to
show up in Memphis because he had business to attend back in Texas. The Appellant
testified that he did not inform his trial attorneys about his alleged alibi because he was not
paying attention during trial, and he did not think the dates were relevant. According to the
Appellant, “I didn’t know I had an alibi.”

       The Appellant filed a petition for a writ of error coram nobis the day the post-
conviction hearing commenced. The basis of the petition was the testimony of two fellow
death row inmates who stated that Blanton confessed to them that he acted alone, or with
another individual, when he broke into the victims’ home and killed them. According to
these inmates, Blanton told them he did not come forward earlier because he did not want
to jeopardize his own case. Blanton died in prison in 1999.

        Ronnie Cauthern, an inmate on death row in Tennessee, knew James Blanton prior
to his death in 1999. Cauthern testified about statements Blanton made to him concerning
the crimes in this case. According to Cauthern, Blanton said the Appellant and Quintero
were not present when Blanton killed the victims. Blanton also said “if anything were to
happen regarding the execution of [the Appellant and Quintero], he would step up and stop
it,” but would not say anything “at that time, because it would jeopardize his own case.”
Blanton had previously been convicted of murder, and according to Cauthern, he bragged
about the killings.

      Terry Lynn King, another death row inmate, also testified that Blanton told him the
Appellant and Quintero were not present when the murders took place. Blanton “was
somewhat troubled of [sic] whether he was going to testify at [the Appellant’s and
Quintero’s] post-conviction hearing,” but when King informed Blanton it would be his only
opportunity to help the Appellant and Quintero, he decided he would testify on their behalf.
According to King, Blanton “felt really bad” that the Appellant and Quintero were on death
row for something he did.

       King described the crimes as told to him by Blanton: Blanton, Montgomery and
Hudson thought they had been spotted after breaking into a trailer, so they went to tell the
Appellant and Quintero what happened. The Appellant and Quintero had set up a separate
camp from the other three escapees. Quintero told Blanton that he and the Appellant were
going to meet his friend Zach later that night. After Blanton and the other two thought they
had been seen breaking into a trailer, all five of the escapees broke into another home looking
for guns and more supplies. Blanton told King that Quintero sawed off a shotgun, but that

                                              15
they all fled the house when they thought they saw a police officer. The Appellant did not
have a weapon in his hands when they fled, but Quintero had a rifle. Quintero and the
Appellant ran off in a different direction than Blanton, Montgomery, and Hudson. Later that
night, Blanton, Montgomery and Hudson tried to stop a couple of cars on a roadway but
eventually ran off into the woods after they saw a patrol car.

        The night after all five escapees fled from the house where they stole the guns,
Blanton went to the location where Quintero said they would meet his friend Zach. Zach
eventually appeared and told Blanton that he drove Quintero and the Appellant to meet
Quintero’s father in Nashville earlier that day. Zach asked Blanton where the other two
(Montgomery and Hudson) were, and Blanton told him how they became separated after
seeing the police car. Blanton asked Zach for a ride out of the area, but Zach was reluctant
to aid Blanton. However, Zach apparently told Blanton where he could find a car and some
money to steal. Zach took Blanton to the Vester’s home. Blanton told King that the man
“put up a fight” so he “had to kill him.” Zach was with Blanton at the time, but Blanton did
not explain Zach’s role in the murders, if any. Blanton rendezvoused with the Appellant and
Quintero in Memphis at the bus station, which was their plan if they became separated.

       King testified that he did not know Zach’s last name. During his testimony, King
referred to “these people’s house,” but he only mentioned that a man was killed. He never
mentioned a woman having been killed. Nor did he mention the number or types of weapons
used. King stated that the only information he received about the facts of this case came
from Blanton. He testified he never read the appellate court opinions. King also testified
that he never discussed the matter with Cauthern.

        The deposition testimony of Celerino Quintero was as follows: Mr. Quintero had
lived at the same address in Spring Town, Texas since 1981 or ‘82. In the early morning
hours on Sunday, June 19, 1988, Mr. Quintero received two calls from the Appellant. During
the first call, the Appellant asked Mr. Quintero if he had seen his son in the last day or so.
The Appellant stated that he and Quintero became separated. During the second call, the
Appellant stated that he had since found Quintero. When asked why his son did not call him
instead of the Appellant, Mr. Quintero testified he did not know. The Appellant did not say
where Quintero was when the Appellant made the phone calls. During the second call, the
Appellant stated they had escaped from prison and asked Mr. Quintero to meet them at “the
old truck stop in Nashville.” Mr. Quintero left Texas that morning at approximately 8:30
a.m., drove about fourteen hours, and arrived at the truck stop around midnight. Mr.
Quintero fell asleep after he arrived, but was awakened before sunrise Monday morning by
his son, the Appellant, and Zach Pallay.




                                             16
        Quintero told his father they had to meet someone at the Greyhound bus station in
Memphis. Mr. Quintero insisted that he drive them to Memphis, rather than Pallay. Mr.
Quintero did not think much of Pallay because of things that happened when his son and
Pallay were younger. When Mr. Quintero asked his son why Pallay drove them to Nashville,
Quintero said there was no one else he could call and he did not want Mr. Quintero to be seen
in the Leatherwood community with Texas license plates. When they arrived in Memphis,
Mr. Quintero dropped off the Appellant and Quintero about seven or eight blocks from the
station. Mr. Quintero wanted to take the Appellant and Quintero back to Texas with him, but
they informed Mr. Quintero that they were supposed to meet someone in Memphis.

        Mr. Quintero did not learn of the murders until after he returned home to Texas. Mr.
Quintero testified he was never contacted prior to trial by either the Appellant’s or Quintero’s
attorneys or investigators. According to Mr. Quintero, though he would have testified on his
son’s behalf, his son was adamant that he not get involved in the matter. Although he knew
a trial was scheduled, Mr. Quintero stated that he did not know the actual date of the trial.
Mr. Quintero admitted that his son contacted him numerous times from prison after he was
arrested for the murders in this case.

                                            Issues

I.     Role of Successor Judge

        The Appellant argues that Judge Blackwood should have automatically granted a new
trial following the death of Judge Wallace, the original trial judge. At the time of the
offenses and the trial of this case, Tennessee Code Annotated Section 17-1-305 (1980)
provided as follows:

       Whenever a vacancy in the office of trial judge shall exist by reason of the
       death of the incumbent thereof, or permanent insanity, evidenced by
       adjudication, after verdict but prior to the hearing on the motion for new trial,
       a new trial shall be granted the losing party if the motion therefor shall have
       been filed within the time provided by rule of the court and be undisposed of
       at the time of such death or adjudication.

That section was modified in 1994. See 1994 Pub. Acts, c. 833, §1. The current version of
the statute provides as follows:

       When a vacancy in the office of trial judge exists by reason of death,
       permanent insanity as evidenced by adjudication, impeachment and conviction
       under Tenn. Const. art. V, or removal under Tenn. Const. art. VI, § 6, after

                                              17
       verdict, but before the hearing of the motion for new trial, the trial judge’s
       successor shall rule on the defendant’s motion for new trial after the successor
       judge has reviewed the transcript and entire record of the trial.

Tenn. Code Ann. § 17-1-305 (2009). According to the Appellant’s argument, ex post facto
considerations demand that a new trial be granted as required by the version of Section 17-1-
305 in effect at the time of the offenses and trial in this case.

       [S]tatutes are presumed to operate prospectively. However, statutes that are
       remedial or procedural in nature may be applied retroactively to causes of
       action arising before the acts became law and to suits pending when the
       legislation took effect. Remedial statutes are defined as ‘[l]egislation
       providing means or method whereby causes of action may be effectuated,
       wrongs redressed and relief obtained.’ Similarly, a procedural statute is one
       that addresses the mode or proceeding by which a legal right is enforced.

State v. Hanners, 235 S.W.3d 609, 612 (Tenn. Crim. App. 2007) (internal citations omitted).
Applying a statute retroactively in a criminal case may, however, implicate constitutional
prohibitions against ex post facto laws, which are forbidden under both the United States and
Tennessee Constitutions. See U.S. Const. art. 1, § 10, cl. 1 (“No State shall . . . pass any . . .
ex post facto Law. . . .”); Tenn. Const. art. I, § 11 (“[L]aws made for the punishment of acts
committed previous to the existence of such laws, and by them only declared criminal, are
contrary to the principles of free Government; wherefore no Ex post facto law shall be
made.”).

       An ex post facto violation under article I, section 11 of the Tennessee
       Constitution occurs whenever a law (1) “provides for the infliction of
       punishment upon a person for an act done which, when it was committed, was
       innocent,” (2) “aggravates a crime or makes it greater than when it was
       committed,” (3) “changes punishment or inflicts a greater punishment than the
       law annexed to the crime when it was committed,” (4) “changes the rules of
       evidence and receives (sic) less or different testimony than was required at the
       time of the commission of the offense in order to convict the offender,” and (5)
       “in relation to the offense or its consequences, alters the situation of a person
       to his disadvantage.”

State v. Odom, 137 S.W.3d 572, 582 (Tenn. 2004) (quoting Miller v. State, 584 S.W.2d 758,
761 (Tenn.1979)).




                                               18
        The Appellant argues that the fifth circumstance applies in his case, i.e., depriving him
of an automatic new trial directly relates to the consequences of his conviction and alters his
situation to his extreme disadvantage. Obviously, every criminal defendant convicted of a
charged offense would argue that he or she is extremely disadvantaged if a new trial is not
granted. The Appellant’s situation in this case has not been altered to his disadvantage,
however. The law still allows a successor judge to grant a new trial if the judge concludes
that he or she is unable to adequately perform the duties of a thirteenth juror. The granting
of a new trial is just no longer automatic, but the authority for a successor judge to grant one
remains in place. The Appellant merely disagrees with Judge Blackwood’s conclusion about
his ability to review the evidence in this case.

      As the State correctly argues, however, the procedure set forth under the current laws
does not affect the substantial rights of the Appellant.

       [T]he prohibition of ex post facto laws does not extend to every change of law
       that “may work to the disadvantage of a defendant.” Instead, it is intended to
       secure “substantive personal rights” from retroactive deprivation and does not
       “limit the legislative control of remedies and modes of procedure which do not
       affect matters of substance.” Thus, laws which change rules of procedure but
       which do not affect any substantial right of a defendant are not ex post facto
       laws.

State v. Pike, 978 S.W.2d 904, 926 (Tenn. 1998) (quoting Dobbert v. Florida, 432 U.S. 282,
293 (1977)). The change in the law regarding a successor judge’s ability to rule on a motion
for new trial does not relate directly to the charged offenses or their consequences, i.e.,
punishment. Accordingly, the Appellant’s ex post facto argument must fail.

       A successor judge now has the discretion to determine whether or not he or she can
perform the duties required of a thirteenth juror. Tennessee Rule of Criminal Procedure
25(b) addresses situations when the trial judge is unable to perform post-verdict duties due
to absence, sickness, death, or other disability. The rule provides, in pertinent part, as
follows:

       (b) After Verdict of Guilt. –

       (1) In General. – After a verdict of guilty, any judge regularly presiding in or
       who is assigned to a court may complete the court’s duties if the judge before
       whom the trial began cannot proceed because of absence, death, sickness, or
       other disability.



                                               19
       (2) Granting a New Trial. – The successor judge may grant a new trial when
       that judge concludes that he or she cannot perform those duties because of the
       failure to preside at the trial or for any other reason.

Tenn. R. Crim. P. 25(b). Rule of Criminal Procedure 33(d) provides that a “trial court may
grant a new trial following a verdict of guilty if it disagrees with the jury about the weight
of the evidence.” This rule “is the modern equivalent to the ‘thirteenth juror rule,’ whereby
the trial court must weigh the evidence and grant a new trial if the evidence preponderates
against the weight of the verdict.” State v. Blanton, 926 S.W.2d 953, 958 (Tenn. Crim. App.
1996). In State v. Carter, the supreme court interpreted this rule as “impos[ing] upon a trial
court judge the mandatory duty to serve as the thirteenth juror in every criminal case[.]” 896
S.W.2d 119, 122 (Tenn. 1995). The supreme court also held that “approval by the trial judge
of the jury’s verdict as the thirteenth juror is a necessary prerequisite to imposition of a valid
judgment.” Id. “[A] successor judge’s consideration, pursuant to Rule 25(b) . . . of whether
the duties of the original judge can be met must include an assessment of his or her ability
to act as a thirteenth juror, including witness credibility.” State v. Nail, 963 S.W.2d 761, 765
(Tenn. Crim. App. 1997) (citing State v. Bilbrey, 858 S.W.2d 911, 914 (Tenn. Crim. App.
1993)). Accordingly, if the successor judge does not believe he or she can adequately
determine whether the evidence supports the verdict from a review of the record, the judge
may order a new trial.

       Judge Blackwood recognized that in order for him to assess whether he could perform
the duties of a thirteenth juror he “‘would need to determine the extent to which witness
credibility was a factor in the case and the extent to which he had sufficient knowledge or
records before him in order to decide whether the credible evidence, as viewed by [him],
adequately supported the verdict.’” State v. Brown, 53 S.W.3d 264, 275 (Tenn. Crim. App.
2000) (quoting Nail, 963 S.W.2d at 766). To that extent, if he was unable to make those
determinations, he could not approve the verdict and must, instead, grant a new trial. State
v. Biggs, 218 S.W.3d 643, 654 (Tenn. Crim. App. 2006). As this Court has recognized, “a
judge whose first exposure to the case was presiding over the motion for new trial could rule
on the motion if the record was available so long as witness credibility was not an overriding
issue.” State v. Gillon, 15 S.W.3d 492, 502 (Tenn. Crim. App. 1997). In other words,
“[w]hen witness credibility is the primary issue raised in the motion for new trial, the
successor judge may not approve the judgment and must grant a new trial.” Biggs, 218
S.W.3d at 654.

       In denying the motions for new trial, Judge Blackwood ruled as follows:

              The Defendant asserts that credibility is an overriding issue and thus
       this Court may not act as thirteenth juror. The State disagrees. This Court has

                                               20
       carefully reviewed the record and finds that credibility is not an overriding
       issue and thus this Court may act as thirteenth juror.

               Pursuant to this Court’s mandatory duty to serve as the thirteenth juror
       in every criminal case it hears, see State v. Carver, 896 S.W.2d 119, 122
       (Tenn. 1995) (also concluding that “approval by the trial judge of the jury’s
       verdict as the thirteenth juror is a necessary prerequisite to imposition of a
       valid judgment”), I have considered and weighed the evidence in this matter
       and find that I agree with the jury about the weight of the evidence and
       accordingly adopt their verdicts. Stated otherwise, I find that the weight of the
       evidence supports the verdicts, both as to the defendant’s guilt on the various
       charges and the sentence which the jury imposed.

               In addition, this Court notes that Judge Wallace also previously ruled
       as thirteenth juror in these cases. In addition to his original denial of the
       motion for new trial, Judge Wallace approved the verdicts and sentences in the
       Tennessee Supreme Court Rule 12 report filed following the trial in this
       matter.

        The employees of the funeral home in Memphis who observed three men arrive in the
victims’ vehicle on June 21, 1988, and whose testimony the Appellant now asserts presents
credibility concerns, could not positively identify any of those three men. The Appellant
does not question the credibility of the other witnesses who actually identified him being in
Memphis after the murders. The Appellant argues the credibility of Zach Pallay’s trial
testimony is now called into question because the Appellant has since stated that Pallay drove
him and Quintero to Nashville to meet Quintero’s father. However, because Judge
Blackwood did not give any credence to the Appellant’s recent testimony, as will be
discussed below, the Appellant’s argument in that respect is without merit. The Appellant
also argues the credibility of the witnesses who testified about his beard, or lack thereof, and
the law enforcement personnel who collected and processed evidence from the crime scene
were critical to the sufficiency analysis. Other than identifying these witnesses in his brief,
however, the Appellant does not explain exactly why or how their credibility is now called
into question. Again, the Appellant was the only witness who testified at the hearing on the
amended motions for new trial. Like Judge Blackwood, we do not believe the credibility of
the trial witnesses was an overriding issue. This Court’s previous summary of the sufficiency
of the evidence, as affirmed by the supreme court, is presented here for sake of reference:

              In short, the state’s theory in this case was that these crimes were
       inextricably intertwined. The evidence showed that all of the burglaries
       occurred within a 2-mile radius and were committed between June 16 and June

                                              21
       21, 1988. Two knives taken from the Cherry residence were found at the
       Foster residence. Three knives from the Cherry residence were never
       recovered. At the Harris residence (next door to the Cherrys’), phone calls
       were made within that time period to appellant Hall’s former girlfriend in
       Pennsylvania and to a Bryan Quintero in Texas. At the Crawford residence,
       appellant Hall’s fingerprint was found on a ham can that was sitting on the
       table. Other items from the Crawfords’ house were connected to the
       appellants at the Vester crime scene.

               Moreover, at the Foster residence, appellant Quintero’s fingerprints
       were found on a Federal 12 gauge shotgun shell box, and his palm print was
       found on the barrel of a 12 gauge sawed-off shotgun. Appellant Hall’s
       fingerprint was found on a Diet Pepsi can at Mr. Foster’s house. At the Vester
       residence, ammunition similar to that taken from the Foster residence was
       found, including three live Federal 20 gauge shotgun shells and one casing.
       Pellets and shot wads removed from the residence and the victims’ bodies
       were also consistent with the ammunition stolen from the Foster residence.
       Although not recovered, Mr. Foster testified that a .30-30 caliber rifle was
       stolen from his house. There was testimony that one of Mrs. Vester’s gunshot
       wounds was consistent with having come from such a weapon. Also, a glove,
       belonging to (and positively identified by) Mrs. Crawford, was found outside
       the Vesters’ front window.

               The proof also connected the appellants to the Vesters’ 1985 maroon
       Pontiac Bonneville which was later recovered in Memphis. In the car, the
       police found a sawed-off 20 gauge shotgun, which was positively identified
       by Mr. Foster. T.B.I. Agent Don Carmon identified this shotgun as having
       fired the spent 20 gauge shotgun shell found outside Mr. Vester’s bedroom
       window. The Crawfords also testified that the flashlight found in the vehicle
       was exactly like the one taken from their home. Finally, three eyewitnesses
       saw similar looking men get out of the Vesters’ vehicle at the Memphis
       Funeral Home. Then, an eyewitness placed appellant Quintero in Memphis at
       the time the Vesters’ vehicle was abandoned. Two eyewitnesses also placed
       appellant Hall in Memphis at that time.

Hall, 976 S.W.2d at 140-41.

       Judge Blackwood affirmatively stated that he was able to perform his duties as
thirteenth juror. Accordingly, he found that the weight of the trial evidence supported the
verdicts. Judge Blackwood stated that any witness credibility concerns could be attributed

                                            22
solely to the alleged newly discovered evidence presented by the Appellant in his amended
motions for new trial. To the extent the Appellant claims the evidence supporting his later-
arising alibi claim presented a challenge for Judge Blackwood, that evidence will be analyzed
under the standard discussed in the next section. The role of the successor judge and the
impact of the alleged newly discovered evidence must be considered separately. If the
successor judge rejected the newly discovered evidence, even though he agreed to review it
before analyzing its significance, then any impact it may have had on the credibility of the
trial witnesses cannot be considered to have affected his ability to serve as thirteenth juror.
Based upon our review, we hold that Judge Blackwood did not err in concluding that he was
able to fulfill his duties as thirteenth juror.

II.    Newly Discovered Evidence

        The Appellant asserts that the newly discovered evidence summarized above warrants
a new trial in this case. In order to be entitled to a new trial on the basis of newly discovered
evidence, a defendant must show (1) that he or she was reasonably diligent in seeking the
evidence, (2) that the evidence is material, and (3) that the evidence is likely to change the
result of the trial, i.e., credible. State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994). A
defendant must satisfy all three of these elements. Id. Moreover, the decision to grant or
deny a new trial on the basis of newly discovered evidence rests within the sound discretion
of the trial judge. State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997).
Accordingly, this Court’s standard of review on appeal is abuse of discretion. See State v.
Meade, 942 S.W.2d 561, 565 (Tenn. Crim. App. 1996).

       Prisoners are “tireless in seeking new trials on the ground of newly discovered
       evidence.” However, the courts view these efforts with great caution because
       they are clouded by concerns of fabrication, perjury, and fraud. While courts
       must always be ready to correct errors in their judgments, they must also take
       steps to safeguard against the defeated party belatedly manufacturing evidence
       in order to escape the consequences of an adverse verdict.

Harris v. State, 301 S.W.3d 141, 151 (Tenn. 2010) (Koch, J., concurring) (citations omitted).
We find this language on the issue especially relevant in this case. New evidence offered in
support of a motion for new trial must actually have been discovered after trial. A defendant
must explain why it was not discovered before trial, and, more importantly, he or she must
not have known about the evidence beforehand. Finally, the newly discovered evidence must
be credible. “[B]efore relief may be granted, it must be established, and the trial court must
find, that the newly discovered evidence may have resulted in a different judgment had it
been presented at the trial. This rule presupposes that the evidence would be admissible
pursuant to the applicable rules of evidence and is material to the issues or grounds raised in

                                               23
the petition.” Newsome v. State, 995 S.W.2d 129, 135 (Tenn. Crim. App. 1998) (citing State
v. Hart, 911 S.W.2d 371 (Tenn. Crim. App. 1995)). As this Court has stated, “[t]he trial
court may determine the credibility of any newly discovered evidence, and if the court
concludes that the evidence would not be worthy of belief by the jury, the court should deny
the motion for new trial.” State v. Bowers, 77 S.W.3d 776, 784 (Tenn. Crim. App. 2001)
(internal quotation omitted).

       Judge Blackwood found that the fact a telephone call was placed at 11:33 p.m. on
June 20, 1988, to an unknown number in the same area code in Texas where Quintero’s
family lived does not establish an alibi for the Appellant. He further found,

       [Trial counsel] testified that the co-defendants, Hall, Quintero, and Blanton,
       would not make statements which would hurt the other. The Defendant
       admitted to knowing that the offenses occurred between the 18th and the 22nd.
       The Defendant was always aware of his whereabouts during that time frame
       and, if true, he was aware that co-defendant Quintero’s father had driven them
       to Memphis. The Defendant never advised his counsel of his potential alibi
       to at least part of the offenses. The Defendant made a choice not to pay
       attention during his trial. Assuming that information is true, co-defendant
       Blanton’s testimony was unavailable, not undiscovered. As co-defendant
       Blanton is now deceased, the testimony of inmates Cauthern and King would
       be inadmissible hearsay. Clearly the Defendant would have had pretrial
       knowledge of Mr. Quintero as a possible witness regarding his alleged
       transportation to Memphis.

Judge Blackwood concluded, “The fact that the [Appellant] wants to change his theory and
now rely upon a defense of alibi and present evidence which was available to him at the time
of the original trial does not warrant granting a new trial on the basis of ‘newly discovered
evidence.’”

       In the Appellant’s prior post-conviction appeal, this Court made the following
comments regarding the Appellant’s claim that his trial counsel were ineffective for not
presenting an alibi defense:

              The post-conviction court found that [the Appellant’s] alibi was
       manufactured after trial. The court thus concluded that counsel was not
       deficient in failing to present evidence in support of the alleged alibi. We
       likewise find [the Appellant’s] post-conviction testimony lacking, and we,
       therefore, conclude that [the Appellant] has failed to prove, by clear and
       convincing evidence, the allegations of fact in support of his claim in this

                                             24
respect. [The Appellant] acknowledged he knew before trial that the murders
took place sometime between June 18 and June 22, 1988, a portion of which
time he was supposedly not in the Leatherwood community. [The Appellant]
claims he was in Memphis the night the murders took place, June 20, 1988.
Yet he did not tell his attorneys about this fact, despite being told by his
attorneys that the murders were committed when he supposedly was not there.
Roberts testified she was aware of the State’s theory on the time of death
because she attended Blanton’s trial.

        [The Appellant] stated he did not pay much attention to the trial
testimony. The trial court found this statement “farfetched” given the fact that
[the Appellant] was on trial for a capital crime. The evidence demonstrates
that [the Appellant] had some idea prior to trial when the murders occurred.
He now expects this Court to believe that he sat through an entire six week
trial, knowing he was not on the scene at the time of the crime, without voicing
any concern to his attorneys. We, however, do not place much weight on his
post-conviction testimony. [Trial counsel] testified that [the Appellant] took
his cues from Quintero. She received the impression that the two defendants
“were not going to have any different story about the events that went on.
They had a common goal.” [Counsel] testified that if either defendant had an
alibi and the other did not, neither defendant was going to cross the other.
Indeed, [the Appellant] specifically told counsel that he did not want his case
severed from Quintero’s. [Counsel] testified that [the Appellant] instructed her
not to implicate either Quintero or Blanton because “they were in it together
and their stories were going to stay the same.”

        Interestingly, although [the Appellant] testified at the hearing about his
alleged alibi, he failed to mention anything about the alibi in his original pro
se post-conviction petition. This despite his testimony that he read the
supreme court’s opinion which pinpointed the time of death. [The Appellant]
testified he relied upon Quintero to help him draft his petition. This is
consistent with [counsel’s] testimony that [the Appellant] followed Quintero’s
lead during trial.

         We have already discussed the proposed testimony by Celerino
Quintero during our review of Quintero’s issues. We conclude that Quintero’s
trial attorneys were not ineffective for failing to call Mr. Quintero as an alibi
witness. We note that, in view of the fact that Mr. Quintero was the main alibi
witness, it strains credulity to believe that this alibi witness was not mentioned.
[The Appellant] apparently followed Quintero’s lead throughout trial, and even

                                        25
       during the filing of the original post-conviction petitions. Our conclusion with
       respect to Quintero’s claim that his attorneys were ineffective for calling his
       father as an alibi witness applies equally to [the Appellant’s] argument. We
       do not find counsel’s conduct to be unreasonable in this respect.

               [Counsel] testified that she received from [the Appellant] only those
       facts which he wanted to impart. Counsel told [the Appellant] the time frame
       of the murders, and counsel cannot be held accountable if [the Appellant]
       decided not tell them he was not present during a period of that time-frame.
       Though counsel did not file a bill of particulars, we do not find counsel’s
       conduct unreasonable. Counsel acknowledged they had open access to all of
       the State’s files. [Counsel] stated she was not surprised by the testimony of the
       fishermen who heard the gunshots the night of June 20, 1988. [Counsel]
       testified their defense strategy was to highlight the State’s circumstantial
       evidence. Indeed, both Quintero and [the Appellant] maintained the same
       defense.

Quintero, 2008 WL 2649637 at 50-51.

        The foundation of the Appellant’s entire newly discovered evidence claim simply
cannot stand on its own. He would have the courts believe that he did not reveal evidence
supporting his alibi because he did not pay attention during the trial in which his life was
literally on the line. Like Judge Blackwood, we choose not to believe the Appellant’s
explanation. His self-serving attempt now to manufacture a different defense about which
he should well have already known does not gain him any favor. The Appellant’s testimony
is simply not credible. Similarly, the testimony of Cauthern and King is equally
unbelievable, and it would otherwise be inadmissible hearsay, as the trial court correctly
noted. See Tenn. R. Evid. 801(c). The record of the telephone call is unpersuasive. The
Appellant has failed to satisfy all of the elements outlined in Nichols. 877 S.W.2d at 737.

        Accordingly, after review, we conclude that Judge Blackwood did not abuse his
discretion by rejecting the Appellant’s alleged newly discovered evidence. The Appellant
is not entitled to relief on this issue.

III.   Sufficiency of the Evidence

       As discussed above, the supreme court affirmed this Court’s conclusion on direct
appeal that the evidence was sufficient to support the convictions. Hall, 976 S.W.2d at 140-
41. The Appellant again now challenges the sufficiency of that convicting evidence. “Under
the doctrine of the law of the case, when an initial appeal results in a remand to the trial

                                              26
court, the decision of the appellate court establishes the law of the case, which must be
followed upon remand.” State v. Carter, 114 S.W.3d 895, 902 (Tenn. 2003). An issue
decided in a prior appeal may only be reconsidered when

       (1) the evidence offered at a trial or hearing after remand was substantially
       different from the evidence in the initial proceeding; (2) the prior ruling was
       clearly erroneous and would result in a manifest injustice if allowed to stand;
       or (3) the prior decision is contrary to a change in the controlling law which
       has occurred between the first and second appeal.

Id.

       As this Court recognized on direct appeal, a crime may be established by direct
evidence, circumstantial evidence, or a combination of the two. Hall, 976 S.W.2d at 140
(citing State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987)). Our supreme court has
since held that circumstantial evidence is as probative as direct evidence. State v. Dorantes,
331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the supreme court rejected the previous
standard which “required the State to prove facts and circumstances ‘so strong and cogent
as to exclude every other reasonable hypothesis save the guilt of the defendant, and that
beyond a reasonable doubt.’” Id. at 380 (quoting State v. Crawford, 470 S.W.2d 610, 612
(Tenn. 1971)). Therefore, “direct and circumstantial evidence should be treated the same
when weighing the sufficiency of such evidence.” Id. at 381. To that end, the duty of this
court “on appeal of a conviction is not to contemplate all plausible inferences in the
[d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor of the
State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011). Accordingly, the standard of review
when the sufficiency of the evidence is challenged remains the same: the relevant question
is whether, after a consideration of the evidence in the light most favorable to the state, a
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307 (1979); State v. Williams, 657 S.W.2d 405 (Tenn.
1983), cert. denied, 465 U.S. 1073 (1984); Tenn. R. App. P. 13(e).

       The Appellant asserts that the post-conviction evidence Judge Blackwood agreed to
review before ruling on the motion for new trial, mainly the alleged newly discovered
evidence, was substantially different than the trial evidence and thus warrants another review
of the sufficiency of the convicting evidence in this delayed appeal. We disagree. Judge
Blackwood merely agreed to consider that evidence before deciding if it qualified as newly
discovered evidence warranting a new trial. Because he concluded that the evidence did not
qualify as newly discovered, which we herein affirm, it does not alter the prior holding on
the sufficiency issue. And contrary to the Appellant’s insistence, the prior ruling was not
clearly erroneous and will not result in a manifest injustice if allowed to stand. The

                                              27
Appellant cannot gain another bite at the proverbial apple simply by changing his theory of
defense after the fact. None of the exceptions enumerated in Carter apply in this case.
Accordingly, the Court’s previous ruling that the evidence was sufficient to support the
convictions is the law of the case.

IV.    Use of Physical Restraints During Trial

        The Appellant contends he was improperly shackled during trial in the presence of the
jury in violation of his due process rights. The Appellant relies upon the evidence introduced
at the post-conviction hearing which consisted of the testimony of one juror and the deputy
sheriff responsible for transporting the defendants to and from the jail. The juror testified
that he remembered seeing the defendants brought into the courtroom in shackles as the jury
was in the box “setting up.” However, the evidence does not demonstrate during which stage
of the trial that occurred. The deputy sheriff testified that he brought the defendants into the
courtroom in shackles, however, he testified he always removed the restraints before the jury
entered. He testified that the defendants never appeared in handcuffs or shackles in the
presence of the jury. The post-conviction court found as a matter of fact that the defendants
were in leg shackles during the penalty phase of the trial but not the guilt phase. Prior to the
commencement of the sentencing stage, counsel for the defendants requested that the
shackles be removed. Based upon the deputy’s observations that the shackles were hidden
from the jury’s view, the trial judge refused.

        In Deck v. Missouri, the Supreme Court established a new rule of constitutional law:
routine shackling of a defendant during the penalty phase of a capital trial, absent the
showing of a case specific security need, violates the defendant’s due process rights unless
the state demonstrates beyond a reasonable doubt that the shackling did not contribute to the
sentence imposed. 544 U.S. 622 (2005). Despite the pronouncement of this new rule, the
United States Supreme Court stated that the general prohibition against physical restraints
during the guilt phase of a trial is deeply rooted in the common law. See, e.g., Willocks v.
State, 546 S.W.2d 819 (Tenn. Crim. App. 1976).

       On appeal, the Appellant argues that he is entitled to a new trial because one juror
apparently saw him and Quintero in shackles during the course of the trial. The Appellant
does not identify during which stage of the trial the juror saw the defendants, however.
Nevertheless, the record does not support any reference to the guilt phase. As this Court
noted in the post-conviction appeal, though, the record does reflect that the Appellant was
shackled during sentencing. Judge Blackwood denied relief on this claim:

             In the transcript, just before the beginning of the penalty phase,
       Defendant Hall’s attorneys object[ed] to the fact that their client [had] been

                                              28
placed in leg shackles. The Court responded that the Sheriff was in charge of
security and felt that this was a necessary procedure which the Court would
allow. The attorneys again objected later by stating that they thought the
shackles were visible to the jury but the Court stated that the Sheriff and others
had also looked and did not think that the shackles were visible. One juror,
Mr. Henry Clay Skeleton, whose prior post-conviction testimony was admitted
for consideration[,] previously testified that he had seen the Defendant in
shackles in the courtroom. He stated that the Defendant had been brought into
the courtroom in shackles. In part of his testimony, he stated that “If I
remember correctly, I think he was in shackles.” Two other jurors previously
testified in the post-conviction proceedings that they had been unaware of the
Defendant being in shackles. [Footnote omitted]. A deputy who transported
the Defendant every day of the trial also previously testified that he had the
Defendant sitting at the table every day before the jury was brought into the
courtroom.

        The facts of this case included an escape from a state prison by multiple
persons, breaking into various residences to obtain food, shelter, money, and
weapons, and the ultimate death of two elderly victims by the use of multiple
weapons which were obtained during the escape and flight from incarceration.
Here, two of the individuals who escaped were being tried in the same rural
courthouse at the same time and both were found guilty and were facing much
longer sentences than those for which they had previously escaped. One of the
two had two prior escapes on his record. Pretrial, the Sheriff had filed an
affidavit addressing security concerns in the housing of the defendants in this
case and as a result the trial court had ordered that they be housed at the State
Penitentiary. The Sheriff also had concerns for security in the courthouse.
The Sheriff’s concerns for security were appropriate in the trial court’s view
at the time and this Court agrees. In addition, this Court finds that the jury
verdict was not influenced by this security measure. The jury only returned
one of two possible death verdicts and the evidence more than sufficiently
supported the verdict of death in this case.

        While his motion for new trial raised this issue as to the sentencing
phase of the proceedings, in his post-hearing brief, the Defendant asserts that
shackling occurred during the guilt phase of the proceedings and that Juror
Skeleton’s testimony supported this. This Court, however, cannot agree with
this assertion. Juror Skeleton’s testimony was not absolute and the officer
testified that the Defendant was seated in the courtroom prior to the jurors
arrival each day. In addition, the trial court entered an order on March 5, 1991,

                                       29
       regarding the prohibition of shackling at trial in front of the jury and only
       readdressed the issue on the record after the verdicts were in as to guilt but
       prior to the sentencing of the Defendant by the jury. The record simply does
       not support this claim and the Defendant is not entitled to a new trial on this
       issue.

       We agree with Judge Blackwood that the record fully supports the showing of a
specific security need and that the shackling did not influence the sentences imposed.
Accordingly, this Court concludes that Judge Blackwood did not err in denying relief on this
issue.

V.     Ineffective Assistance of Counsel

        The Appellant argues trial counsel were ineffective for failing to locate the telephone
call log which showed a call was made from a pay phone in the Memphis Greyhound Station
to Texas on the date the victims were murdered. The supreme court held the Appellant’s
post-conviction appeal in abeyance pending final disposition of this delayed appeal. As that
court recognized, if the Appellant is unsuccessful in his delayed appeal, any new grounds for
post-conviction relief resulting from the handling of the delayed appeal may be asserted by
amending the original post-conviction petition. See Tenn. Sup. Ct. R. 28, Sec. 9(D)(3). The
instant ground for relief, however, is directed at trial counsel. As such, this ground for relief
should have been included in his original petition. The instant delayed appeal does not
provide the Appellant a means for raising additional post-conviction claims which should
have been presented earlier. Rule 28 specifically limits the nature of claims which may be
added to the post-conviction petition to those that arose from the handling of the delayed
appeal. Because the instant post-conviction claim did not arise from the handling of the
delayed appeal, and because the Appellant did not present this claim earlier, it must be
considered waived.

       A ground for relief is waived if the petitioner personally or through an attorney
       failed to present it for determination in any proceeding before a court of
       competent jurisdiction in which the ground could have been presented unless:

              (1) The claim for relief is based upon a constitutional right not
              recognized as existing at the time of trial if either the federal or
              state constitution requires retroactive application of that right;
              or

              (2) The failure to present the ground was the result of state
              action in violation of the federal or state constitution.

                                               30
Tenn. Code Ann. § 40-30-106(g).

        Neither of the two exceptions apply here. Accordingly, the Appellant is not entitled
to relief on this claim.

                                        Conclusion

       Although the Appellant does not challenge the propriety of his death sentence, the
supreme court conducted its statutorily mandated review on direct appeal. As with the
sufficiency of the convicting evidence, the supreme court’s affirmation of the sentence of
death is binding as law of the case. See Carter, 114 S.W.3d at 902.

       For the reasons stated herein, the judgment of the trial court is affirmed.




                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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