        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE             FILED
                        APRIL SESSION, 1999          June 30, 1999

                                                 Cecil W. Crowson
CLAUDE FRANCIS             )                   Appellate Court Clerk
                                C.C.A. NO. 01C01-9807-CR-00294
GARRETT,                   )
                           )
      Appe llant,          )
                           )
                           )    DAVIDSON COUNTY
VS.                        )
                           )    HON . SETH N ORM AN
STATE OF TENNESSEE,        )    JUDGE
                           )
      Appellee.            )    (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

DWIGHT E. SCOTT                 JOHN KNOX WALKUP
4024 Colorado Avenue            Attorney General and Reporter
Nashville, TN 37209
                                ELIZABETH T. RYAN
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                VICTOR S. JOHNSON
                                District Attorney General

                                JOHN ZIMMERMANN
                                Assistant District Attorney General
                                Washington Square, Suite 500
                                222 Se cond A venue N orth
                                Nashville, TN 37201-1649


OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
                                 OPINION
       In 1993 th e Defe ndant, C laude Francis Garrett, was convicted of felony

murder and se ntence d to life impr isonm ent. On direct a ppea l to this C ourt, his

conviction was affirmed, 1 and the Tennessee Supreme Court d enied the

Defe ndan t’s applic ation fo r perm ission to app eal. The Defendant subs eque ntly

filed a petition for post-conviction relief, which was later amended after

appointment of counsel. The trial court denied relief on July 15, 1998. Pursuant

to Tennessee Code Annotated § 40-30-216 and Rule 3(b) of the Tennessee

Rules of Appe llate Proce dure, the Defendant now appeals as of right the trial

court’s denial of post-conviction relief. W e reverse the order of the trial court and

remand for findings of fact and conclusions of law as mandated by statute.



       The Defendant presents four issues for our review: (1) whether the State

withhe ld exculpatory evidence from the defense; (2) whether the Defendant

received ineffective assistance of counsel at trial; (3) whether jury misconduct

and bias resulted in a violation of the Defendant’s constitutional rights; and (4)

whether the jury instruction given at trial on “unreasonable doubt” was

unco nstitutio nal.



                                  BACKGROUND

       For a complete understanding of the issues involved in this case, we find

it necessary to summarize the events underlying the Defen dant’s co nviction. The

following recitation of facts was compiled from the opinion of this Court on direct



1
   State v. Claude Francis Garrett, No. 01C01-9403-CR-00081, 1996 WL 38105 (Tenn.
Crim. App., Nashville, Feb. 1, 1996).

                                         -2-
appeal from th e Def enda nt’s conviction . See State v. C laude F rancis G arrett, No.

01C01-9403-CR-00081, 1996 WL 38105 (Tenn. Crim. App., Nashville, Feb. 1,

1996).



         The victim in this case, Lorie Lance, died on February 24, 1992 from

smoke inhalation in a fire that consumed the residence she shared with the

Defe ndant. When firefighters arrived at the scene, the Defendant reported to

them that he had escaped the flame s but th at the vic tim wa s still insid e. He to ld

them he had last seen the victim run toward the back of the house. Firefighters

found her lying unconscious on the floor of the utility room in the rear of the

home. Although the room containe d a doo r which led outside, a ccording to

testimony of police officers at trial, the door was locked from the outside of the

home, and the windows in the room were boarded.               The victim was found

wedged between the washer and dryer and the wall. Despite efforts to revive the

victim, she ne ver regain ed con sciousn ess. Th e Defe ndant suffered severe burns

to his left arm and face, and his facial hair was singed in the fire.



         An investig ation re vealed that ars on wa s likely the cause of the fire.

Traces of kerosene were found on the living room floor where the blaze arose,

a kerosene-soaked bedspread was found in front of the refrigerator, and a five-

gallon plastic container filled with kerosene was discovered between the kitchen

and utility room. In addition, a smoke detector from which the battery had been

removed was found on the dryer in the utility room. The investigation also

revealed that the door to the utility room inside the home was closed during the

fire. The De fendant’s clothing te sted negative for a cceleran t.        An autopsy




                                          -3-
revealed that the victim had a blood alcohol level of .06 percent at the time of her

death.



      A neighbor testified at trial that he observed the Defenda nt stooping ne xt

to a tree during the blaze. He stated that when he crossed the road to help, the

Defendant picked up a c hair, began to break the windows of the residence, and

began to call the victim’s nam e.      The neigh bor de scribe d the D efend ant’s

demeanor on the night of the fire as “sort of cold.” One firefighter testified that

when he was unable to locate the victim, the Defendant told him, “I know where

she’s at, if you’ll go straight through the back of the house she’s through a back

door, the door in the back of th e hous e by the k itchen.”



         A police detective testified that the D efendant ap peared to be nervous

imme diately after th e fire. He stated that the Defendant asked whether he was

under arrest, although he had not yet been accused of starting the fire. He also

pointed out that in sta temen ts to police, th e Defe ndant p resente d two diffe rent

versions of what happened on the night of the fire. However, firefighters who

testified for the defense stated that they had to restrain the Defendant, who

appeared to be intoxic ated, from re-entering his home on the night of the fire.

One testified that the Defendant was beating on the door of the fire truck and

frantically telling the firefighters that the victim was in the bedroom.



         When police decided to press charges against the Defenda nt, they were

unab le to find him. They eventually located him in Hiawatha, Kansas. The

Defendant explained that he had go ne there to stay with his mother and claimed

that several people knew how to reach him.

                                         -4-
      The Defe ndan t testified that he and th e victim had b een in volved in a

relation ship for one and a half years a nd plan ned to be married. He testified that

on the night of the fire, he and the victim had visited a local bar for several hours.

He stated that they return ed to their residence, watched television, and fell asleep

on the couch be fore getting into bed. Th e Defe ndant re ported th at he aw oke to

the fire, arose, walked to the bedroom door, and called to the victim. He stated

that she grabbed his arm but then pulled away and walked toward the back of the

house .



      The Defendant explained that the door to the utility room was not locked,

but mere ly hard to open. He also stated that kerosene was stored in the house

for use in a kerosene heater, and he maintained that he had spilled some

kerosene on more than one occasion while filling the heater. Furthermore, he

claimed that the smoke detector had been taken down while the kitchen was

being painted and that it was inoperable because the victim forgot to buy

batteries for it. Finally, he su ggeste d a cou ple of pote ntial susp ects who he

believed may ha ve started the fire.



      Other witnesses at trial described a tumultuous relationship between the

Defendant and the victim. The victim’s supervisor at Uno’s Pizzeria, where she

worked at the time of her death, testified that the victim once came to work w ith

a black eye and marks on her leg and lower back. Another witness testified that

the victim once claimed to have received bruises at the hands of the Defen dant.

A waitress from the bar that the victim and the Defendant visited on the night of

the fire testified that although the victim and the Defendant had not fought that

evening, the victim appeared to be fearful of the Defendant. The Defendant

                                         -5-
admitted that he had “beaten” the victim on three prior occasions. He also

admitted that he had previous ly been co nvicted of g rand the ft, two burglaries, and

a jail escape.



                        POST-CONVICTION PROCEEDING

        At the post-conviction hearing, Detective David Miller, the lead investigator

for the case, testified about a report which he wrote du ring the inve stigation. In

the repo rt, he stated ,

        Have contacted Captain Jenkins ab out the positio n of the victim’s
        body when located in utility room. According to Captain Jenkins, the
        victim was lying parallel to the outside wall, with her head laying
        closest to the corner ne ar the washe r and dryer. As best a s Cap tain
        Jenkins remembers to us, the door to the storage-utility room, the
        door was not locked.

(Em phas is added). At the hearing, Miller claimed to remember “having the initial

conversation” but could not remember any specifics of the conversation aside

from what he had included in his report. He stated that after he wrote the report,

he forwar ded it to the district attorney’s office. It appe ars from the rec ord tha t this

report was not dis close d to de fense coun sel, although we empha size that there

are no findings of fact in the record.



        Miller also testified about a toxicology report wh ich conta ined the re sults

of a blood alcohol test performed on the Defendant shortly after the fire. The test

results revealed that the Defendant had a blood alcohol level of 0.11 percent on

the night of the fire. Miller stated that a copy of the toxicology report “should h ave

been” forwarded to the district attorney’s office along with all other reports in the

case.




                                           -6-
         Cap tain Otis Jenkins o f the Metro Fire Department next took the stand at

the post-conviction hearing. Jenkins testified that he responded to the fire on

February 24, 19 92 an d was likely the first pers on to discov er the v ictim’s b ody in

the utility room. Contrary to the statement attribute d to him in Dete ctive M iller’s

report, Captain Jenkins stated that the ou tside doo r to the utility room was locked

when he arrived. He reported that he testified at trial that the door was locked

and unequivocally maintained that he could not possibly have been mis taken

about this fact. He stated that he had no m emory of eve r indicating to Detec tive

Miller that the door was unlocked.



         Greg Galloway, the Defendant’s attorney at trial, also took the stand at the

post-conviction hearing. He stated that he had been an attorney for twenty-three

years and testified that he believe d this ca se m ay hav e bee n his first mu rder tria l.

He stated that he worke d on th e cas e for ap proxim ately a y ear be fore the trial,

devoting “at least 150 hours” to the case. Galloway estimate d that he s poke w ith

the Defendant approximately six times in person and on the phone on other

occasions. He testified that he and the Defendant discussed the State’s written

response to their discovery request. He further testified that the Defendant sent

him several letters which included witnesses the Defendant believed should be

called to testify at trial. He recalled that he and the Defendant discussed the

witnesses and se ttled on ap proxima tely eight witnesses to be subpoenaed for

trial.



         Galloway stated that he sp oke with De tective Miller primarily over the

phone prior to trial and that they discu ssed whe ther the door to the utility room

was locked or unlocked. He stated that Miller “said that as far as his investigation

                                           -7-
revealed, that the door was not locked.” In addition, Galloway testified that he

attempted to speak with C aptain Jenkins and other firefighters present at the

scene of the fire. He maintained that he left messages for them by phone which

were ne ver returne d.



      Furthermore, Galloway testified that he sent a discovery request to the

assistant district attorney general handling the case but stated that he did no t file

a copy of the letter with the court. Among the documents provided him by the

State was a diagram of th e hous e which did not inc lude an y indication that a

bedspread was fou nd in front o f the refrigera tor.      He sta ted that it was a

“complete surprise to [him] when . . . one of the firemen testified that there was

a blanket o r some thing in fron t of the refrigerator.” Galloway testified that as a

result of his surprise, he did not cross-examine the witness concerning the

diagram because “[i]t didn’t occur to [him] that [the blanket] wasn’t on the diagram

at that point a nd time .” Howe ver, he also admitted that an evidence log which

was turned o ver to him during the discover y proces s listed as o ne of the items

recovered from the scene “[b]ed material, bedspread . . . found at the base of the

refrigerato r.” Galloway pointed out that the evidence log did not mention that the

bedspread had been soaked in kerosene.



      Galloway testified that before trial, he spoke with Assistant District Attorney

General Zimmerman, who prosecuted the case, and stated that Zimmerman “led

[him] to believe that he ha d no informa tion indicating the doo r was locked.” He

recalled that he did not prepare a defense to counteract evidence indicating the

door was lock ed. He re ported th at had h e know n the State would introduce




                                         -8-
evidence at trial that the door was locked, he would have “tried to counteract that

some w ay, or find the reason if it was locked.”



       Next, Gallowa y conce ded tha t as a resu lt of an “overs ight,” he fa iled to

request “Jencks Act ma terial” after D etective M iller’s testimo ny at trial. He stated

that he the refore had n o acc ess, e ither be fore or during the trial, to Miller’s report

in which Miller claimed Capt ain Jenkins remembered that the outside utility room

door wa s not lock ed.



       In addition, Galloway described an incident at trial involving a violation of

the court’s sequestration order. Apparently, a relative of the victim was relating

trial testimony to potential witnesses in the hallway outside the courtroom during

the trial, and for this reason, the trial judge had the pers on taken into cu stody.

Galloway stated that he did not move for a mistrial, explaining, “I just knew that

he was talkin g to potential witnesses, I didn’t know what he said, so I really did n’t

know if it was serious enough to ask for a mistrial, so I didn’t.” He also admitted

that he faile d to make an offer of proof concerning the violation because he

“didn’t think about it.”



       Finally, Galloway stated that he was not provided a copy of the toxicology

report containing the results of the Defendant’s blood alcohol tests, which

indicated that the Defendant had a blood alcohol level of .11 percent on the night

of the fire. H e testifie d that h ad he had a ccess to the report before trial, he w ould

have brought this fact to the attention of the jury and u sed th e test re sults to help

explain some of the Defenda nt’s behavior on the night of the fire. He stated,

“[H]e was apparently kneeling or hiding under a tree and not doing anything

                                           -9-
about the fire, or . . . he had n o reac tion to th e fire; he had lo w affec t or he w asn’t

upset enough and th at cou ld expla in it, him being drunk .” How ever, h e did

concede on cross-examination that the Defendant told him before trial that he

was drinking on the night of the fire, and Galloway admitted that he did present

this inform ation to the jury.



       Assistant District Attorney Ge neral John Z immerm an next took the stand.

He testified that two diagrams of the residence shared by the Defendant and the

victim were provided to the defense. He stated that neither depicted a bedspread

in front of the refrige rator, but h e also po inted out a nother d ocum ent provid ed to

defense during discovery which contained the following language:

       In reviewing the enclosed sketch submitted by Fire Investigator
       Kenneth Porter, of the crime scene located 1114 Broadway in Old
       Hickory, Tennessee, we find several discrepancies . . . in this sketch
       that we feel needs [sic] to be c orrected or discu ssed before placing
       this document into the homicide case file. . . . Item Number 6. The
       bedspread lying in . . . the kitchen in front of the refrigerator which
       was soaked with kerosene is not depicted in the sketch.

He also maintained that the bedspread, which smelled very strongly of an

acce lerant, w as sh own to Gallow ay in the prope rty room before trial.



       Zimmerman testified that the toxicology report containing the Defe ndan t’s

blood alcohol level never reached him. He stated that the report reach ed his

office but that the clerk for his office merely filed the report rather than sending

it on. He also testified that he interviewed Captain Jenkins before trial and

spec ifically questioned him about the door to the utility room. He testified that

Cap tain Jenkins denied ever making a statement to Miller that the door was

unlocked. According to Zimmerman, when confronted about the statement

contained in Miller’s repo rt, Jenkins respon ded, “W ell, [Miller’s] wrong, I never

                                            -10-
said that.” Zimmerman maintained that Jenkins’ “me mory was extremely clear,

because he’s th e one who u nlatch ed the door.” Zimm erma n testifie d that h e did

not consider the sta tement to be “exculpatory information” because the

information was incorrect. He stated, “I felt like Detective Miller’s recollection was

vague, he could not specifically remember the co nvers ation h e had with C aptain

Jenkins, and all he knew is what he had recorded in his report, which was

equivoc al, at best, an d Jenk ins was a bsolutely c lear on it.”



        The D efenda nt was las t to testify at the p ost-con viction hearing. He

reported that during the time he was out on bond awaitin g trial, a p eriod o f nearly

a year, he did not once converse with Galloway in preparation for trial. In

addition, he sta ted, “W e spo ke on the ph one a coup le of times about some of the

evidence, but we never sat down and discussed any defense, no[t] at all.” He

claimed that although G alloway gave him “some papers,” he “never saw a

response to a disc overy,” nor did they dis cuss the Sta te’s evidence against him.

He stated that he met with Galloway only three times before trial. He testified,

“W e had phon e con versa tions a nd I wo uld jus t ask h im what was going on and

he’d say, <Nothing .’ And tell m e when the next co urt date w as.” Furthermore, he

testified that he and Galloway never thoroughly discussed the events that

occurred on the night of the fire, prior to the victim’s death. He stated that he and

Galloway spent on ly three or fou r hours “in person al contac t” prepa ring for tr ial.



                            RULING OF TRIAL COURT

       At the conclusion of the evidentiary hearing, the post-conviction court made

no oral findings of fact or c onclu sions of law, a nd sim ply state d, “Pe tition is

denied .” The record on appeal contains no judgm ent or order of the trial cou rt

                                         -11-
denying relief or dismissing the petition. The record does contain a copy of the

minutes of the cou rt, reflecting, “Thereupon, this cause came on to be heard by

the court on petition for post-conviction relief; after due consideration and all the

evidenc e introdu ced, said petition is de nied.”



                                     ANA LYSIS

      Without reaching the merits of this proceeding, we must remand this cause

to the trial court for entry of a final order and for findings of fact and conclusions

of law regarding each ground presented in the petition.



      The Post-Conviction Procedure Act adopted by our legislature requires,

             Upon the final disposition of every petition, the court shall
      enter a final order, and except where proceedings fo r delayed
      appeal are allowe d, shall set forth in the order or a written
      memorandum of the case all grounds presented, and shall state the
      findings of fact and conclusions of law with regard to each such
      ground.

Tenn. C ode Ann . § 40-30-211 (b) (empha sis added).


      The statute is clear and unambiguous.           Although the reasons for the

statutory m andate seem appare nt, this Cou rt has no ted that,

      [t]he duty to enter findings of fact and conclusions of law as to each
      ground alleged is ma ndato ry as the appe llate co urts m ay only
      review the find ings o f the trial c ourt. N ot only d o the tria l court’s
      findings facilitate appellate review , but, in many cas es, are
      neces sary for su ch review .

Ron ald Bradford Waller v. State, No. 03C01-9702-CR-00054, 1998 WL 743654,

at *6 (Ten n. Crim. A pp., Kno xville, Oct. 15, 1 998) (citatio n omitted ); see also

Steve E. Tod d v. State, No. 01C01-9612-CR-00503, 1999 WL 30678 (Tenn.

Crim. App., Nash ville, Jan. 26, 1999); Joe L. Utley v. State, No. 01C01-9709-CR-

00428, 19 98 W L 846577 (Tenn. Crim . App., Nash ville, Dec. 8, 1998).

                                         -12-
      This case is remanded for the purpose of permitting the trial court to enter

its findings of facts and conclusions of law as to each ground alleged in the

Defe ndan t’s petition . No fur ther pr oof sh ould be necessary. Once the trial court

enters its order, the Defendant may again appeal as of right, if he so desires.



      According ly, the ruling o f the trial court is reversed , and this cas e is

remanded in order to permit the trial court to revisit the grounds raised by the

Defendant in his original petition and, thereafter, enter findings of fact and

conclus ions of law as requ ired by the Post-C onviction A ct.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




                                        -13-
