         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                        Remanded by Supreme Court June 28, 2004

           ANTHONY DARRELL HINES v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Cheatham County
                             No. 9852   Robert E. Burch, Judge



                     No. M2004-01610-CCA-RM-PD - Filed July 14, 2004


The opinion of the court in this matter was released on January 23, 2004, and the petitioner filed an
application for permission to appeal. On June 28, 2004, our supreme court granted the application
and remanded to this court, directing that we reconsider our previous conclusion that “the trial court
charged the incorrect version of the aggravating circumstance in Tennessee Code Annotated section
39-2-203(i)(5) (1982).” We have reconsidered this issue and conclude that the trial court utilized
the correct version of this statute when instructing the jury at the resentencing hearing as to
aggravating circumstances. Additionally, as explained in this opinion on remand, we erred in the
original opinion by stating that our supreme court had addressed, in the direct appeal of the
resentencing hearing, whether “instructing an inapplicable version of aggravating circumstance (i)(5)
was harmless error.” In fact, the court did not do so. In our opinion on remand, we again affirm the
post-conviction court’s denial of relief, and refile our opinion which has been altered only to reflect
our consideration of those matters, as previously explained, set out in the remand order.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Donald E. Dawson, Post-Conviction Defender; and Jon Joseph Tucci, Assistant Post-Conviction
Defender, Nashville, Tennessee, for the appellant, Anthony Darrell Hines.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele M.
Gregory, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and B. Dent
Morriss, Assistant District Attorney General, for the appellee, State of Tennessee.

                                     OPINION ON REMAND

                                        I. BACKGROUND
        The petitioner, Anthony Darrell Hines, was originally tried in 1986 in the Cheatham County
Circuit Court for the murder of Katherine Jean Jenkins. The jury found him guilty of first degree
felony murder and sentenced him to death. Although the petitioner’s 1986 conviction for first
degree felony murder was affirmed on direct appeal by the Tennessee Supreme Court, the case was
remanded for resentencing because of erroneous jury instructions. State v. Hines, 758 S.W.2d 515
(Tenn. 1988).

        On remand, the Cheatham County jury again sentenced the petitioner to death, finding three
aggravating circumstances: “[t]he [petitioner] was previously convicted of one or more felonies,
other than the present charge, which involve the use or threat of violence to the person,” Tenn. Code
Ann. § 39-2-203(i)(2) (1982); “[t]he murder was especially heinous, atrocious, or cruel in that it
involved torture or depravity of mind,” id. § 39-2-203(i)(5) (1982); and “[t]he murder was
committed while the [petitioner] was engaged in committing, or was an accomplice in the
commission of, or was attempting to commit, or was fleeing after committing or attempting to
commit, any first degree murder, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy,
or unlawful throwing, placing or discharging of a destructive device or bomb,” id. § 39-2-203(i)(7)
(1982). Subsequently, the Tennessee Supreme Court affirmed the petitioner’s conviction and death
sentence, and the United States Supreme Court denied certiorari. State v. Hines, 919 S.W.2d 573
(Tenn. 1995), cert. denied, 519 U.S. 847, 117 S. Ct. 133, 136 L. Ed. 2d 82 (1996).

        The petitioner filed a petition for post-conviction relief on March 4, 1997, which was twice
amended. On May 9, 2002, after evidentiary hearings, the post-conviction court filed its findings
of fact and conclusions of law and entered an order denying the petition.

                                A. Proof Presented at 1986 Trial

      The following proof, introduced at the petitioner’s original trial in 1986, was set out by our
supreme court in affirming the petitioner’s conviction:

                       Between 1:00 and 1:30 p.m. on 3 March 1985 the body of
               Katherine Jean Jenkins was discovered wrapped in a sheet in Room
               21 of the CeBon Motel off Interstate 40 at Kingston Springs. The
               victim was a maid at the motel and had been in the process of
               cleaning the room when she was killed. Her outer clothing had been
               pulled up to her breasts. Her panties had been cut or torn in two
               pieces and were found in another area of the room. A $20 bill had
               been placed under the wrist band [sic] of her watch.

                       The cause of death was multiple stab wounds to the chest.
               Four deep, penetrating wounds, ranging from 2.5 inches to 6.4 inches
               in depth, had been inflicted about the victim's chest with a knife
               similar to a butcher knife or a hunting knife. Other superficial cuts
               were found in the area of the neck and clavicle. There was also a


                                                 -2-
knife wound which penetrated through the upper portion of the vagina
into the mesentery in the lower part of the abdominal cavity. Dr.
Charles Harlan who performed the autopsy on the victim's body
testified that in view of the small amount of blood in the vaginal vault
it was his opinion the wound occurred at or about the time of death.
The victim also had what he described as "defensive wounds" on her
hands and arms.

         Jenkins had been left in charge of the motel at about 9:30 a.m.
At that time the occupants of Rooms 9, 21 and 24 had not yet checked
out. When the manager left her in charge she was given a Cheatham
County State Bank bag containing $100 in small bills to make change
for motel guests as they paid. The bank bag, bloody and empty, was
discovered in the room with her body. It was her established habit to
lock her automobile at all times and to keep her keys and billfold on
her person when she worked. Her car keys, billfold and her 1980
silver-colored Volvo were missing.

         On 1 March 1985 defendant had departed by bus from
Raleigh, North Carolina. He had been given a non-refundable ticket
to Bowling Green, Kentucky and $20 in spending money. The
traveling time from Raleigh, North Carolina to Nashville, Tennessee
was approximately 17 hours. Prior to his departure he was observed
by a witness to be carrying a hunting knife in a sheath which was
concealed beneath his shirt. The witness admonished him that he
could not carry a knife like that on the bus to which he responded "I
never go anywhere naked." "I always have my blade." Sometime in
the early morning hours of 3 March 1985 he checked in and was
assigned to Room 9 at the CeBon Motel. He was wearing a green
army-type fatigue jacket, fatigue pants and boots. He was next seen
at approximately 9:30 a.m. walking in a direction from his room
toward a drink machine. At that time he told the manager he was not
yet ready to check out. He was also seen sometime prior to 9:30
purchasing a sandwich at a deli-restaurant across the street from the
motel. The same witness who saw defendant also saw another
stranger there somewhere between 1:30 and 2:30 who she described
as taller than defendant with dark hair, kinky looking and wild-eyed.
He departed the restaurant in the general direction of the CeBon
Motel. The Cheatham County Sheriff testified that he responded to
a call to the CeBon Motel at 2:37 p.m. When he arrived on the scene
blood spots in the room were beginning to dry and the body was
beginning to stiffen. Defendant was seen between 11:00 and 11:30
a.m. walking from the direction of the Interstate toward the CeBon


                                  -3-
Motel. At 12:40 p.m. a witness saw the victim's Volvo automobile
pulling out from the CeBon Motel driveway. It was being operated
by a person who appeared to be a man with very short, light colored
hair. The vehicle crossed over the Interstate and turned east on
Interstate 40. She followed behind and endeavored to catch up but it
sped off toward Nashville at a high rate of speed. Defendant was next
identified in possession of the car a few miles past Gallatin on
Interstate 65, heading in the direction of Bowling Green, Kentucky.
A group of young people first endeavored to help him start the stalled
automobile and then gave him a ride to Bowling Green. During the
trip to Bowling Green one of these witnesses observed some dried
blood on the right shoulder of his shirt. He carried a jacket which he
kept folded. After he arrived at his sister's home in Bowling Green[,]
defendant told her he had endeavored to pay another day's rent at a
motel when he was attacked by the motel operator. He demonstrated
to her how he had stabbed the man. He also related to her he had a
sum of money. She could not remember whether he said $35,000 or
$3,500. Defendant also told his sister's husband he had earned
approximately $7,000 working as a mechanic in North Carolina. He
displayed a set of keys to a Volvo automobile and explained that a
man who had given him a ride attempted to rob him. Defendant
purportedly grabbed the steering wheel and when the car ran off the
road he grabbed the keys and ran. According to the witness he was
wearing an army fatigue jacket which had something large, heavy and
bulky in the pocket. The witness had previously seen defendant with
a survival knife with a 6½ to 7 inch blade hanging from his belt.
When defendant was taken into custody he volunteered the statement
that he had taken the woman's car but had not killed her. According
to the arresting officer he had not advised the defendant that a woman
had been killed prior to the volunteered statement. There was
evidence however that defendant was aware he had been charged in
Tennessee on a murder warrant. The victim's wallet was found
wrapped in a thermal underwear shirt a short distance from where her
car was found abandoned. The key to Room 9 of the CeBon Motel
was found at the site where defendant had been camping out near
Cave City, Kentucky. When asked by a TBI agent to tell the truth
about the death of Katherine Jenkins[,] defendant stated that if the
officer could guarantee him the death penalty he would confess and
tell him all about the murder and that he could tell him everything he
wanted to know if he was of a mind to. There were marks on the wall
of Room 9 at the CeBon Motel apparently made by someone stabbing
a knife into the wall. When shown photographs of the marks on the
wall defendant responded that they were knife marks. These marks


                                 -4-
               were obviously made by a knife larger than two taken from defendant
               at the time of his arrest.

                       There is additional evidence in the record incriminating
               defendant. That summarized above establishes guilt of the conviction
               offense. A criminal offense may be established exclusively by
               circumstantial evidence and the record in this case is abundantly
               sufficient for a rational trier of fact to find defendant's guilt beyond
               a reasonable doubt.

Hines, 758 S.W.2d at 517-19.

                           B. Proof Presented at 1989 Resentencing

        The following proof was presented during the resentencing and set out by the supreme court
in affirming the petitioner’s death sentence:

                       The State introduced proof that the defendant had previously
               been convicted of assault in the first degree. A detective who had
               investigated the case testified that the defendant had inflicted serious
               physical harm to the victim in this prior case. The State also
               presented proof that the defendant had stabbed the victim in the
               present case multiple times with a sharp instrument, probably a knife.
               Three of these wounds were lethal and had penetrated the victim's
               chest five to six inches. The pathologist who had performed the
               autopsy of the victim testified that all the lethal wounds were inflicted
               at about the same time and that death would have occurred within
               four to six minutes, most of which time the victim would have
               remained conscious. Defensive wounds were found on the victim's
               hands. Her clothing had been pulled up and her panties had been cut
               in half and removed from her body. About the time of death, and
               shortly after the infliction of the lethal wounds to the chest, the
               defendant had inserted a flat object through the victim's vaginal
               orifice into the vaginal pouch until the instrument penetrated the
               vaginal dome and passed into the abdominal cavity. A twenty dollar
               bill had been placed under the victim's watchband. No semen or any
               other evidence of ejaculation was found.

                      At the time of her death, the victim had in her possession a
               bank bag containing approximately $100 in proceeds from the motel.
               The empty bag was discovered in the room where the victim's body
               was found. The victim's automobile was also missing. Around 12:40
               p.m. the day of the murder, another employee of the motel saw the


                                                 -5-
                vehicle being driven out of the motel parking lot by someone other
                than the victim.

                         In mitigation, the defendant presented proof that, while in
                prison on this conviction, he had presented no serious disciplinary
                problems and posed no threat to the prison population. The defendant
                also presented proof of a troubled childhood. His father had
                abandoned the family when the defendant was young. His mother
                had an alcohol problem. In his teens the defendant became involved
                in sniffing gasoline and glue and began to abuse alcohol and drugs.
                He also exhibited self-destructive behavior. Dr. Pamela Auble, a
                clinical psychologist, testified that the defendant was suffering from
                a paranoid personality disorder and dysthymia, or chronic depression.
                According to Dr. Auble, the defendant would suppress his feelings
                until they "boiled up" under stress. In her opinion, the defendant,
                who had returned from turbulent visits with his parents and girlfriend
                shortly before he committed the murder, was under stress when he
                killed the victim. Dr. Ann Marie Charvat, a sociologist, also testified
                about the damaging effect of the circumstances of his childhood on
                the defendant.

Hines, 919 S.W.2d at 577.

                         C. Proof Presented at Post-Conviction Hearing

         Witnesses testifying at the post-conviction hearings included Ken Jones, who testified at the
petitioner’s 1986 trial and 1989 resentencing hearing that he had found the victim’s body; Marion
Jones, Ken Jones’s wife; and Vernedith White, his girlfriend. Neither Mrs. Jones nor Ms. White had
testified previously in guilt or sentencing proceedings

         Ken Jones testified via deposition from a nursing home in Hendersonville, Tennessee. In the
years following the petitioner’s resentencing, Jones suffered a stroke and was confined to a nursing
home; therefore, he was unable to testify in person at the post-conviction hearing. He testified that
he found the victim’s body at the CeBon Motel. He acknowledged that he went to the motel on the
day of the victim’s murder to rent a room with Vernedith White, with whom he had been having an
affair for two years, although at trial he had testified that his reason for being at the motel was to use
the restroom. Jones explained that it had been his and Ms. White’s custom to rent a room at the
CeBon Motel most every Sunday. He usually rented a room from the victim, who was a maid at the
motel. He recalled that, on the day in question, he and White had arrived at the motel between 10:00
and 11:00 a.m. Jones could not find anyone at the motel, so he and Ms. White sat in his van and
waited for someone to arrive to rent them a room. They subsequently drove to a nearby restaurant
and returned to the motel within fifteen minutes. Jones said that he could see the motel parking lot
the entire time he was at the restaurant and never got out of his car while at the restaurant. He said


                                                   -6-
that he found the victim’s body within one hour of the time they arrived at the motel. Jones further
testified he knew that keys were kept in a box outside the office, so after no one showed up to rent
them a room, he retrieved a key from the box.

         Upon entering the motel room which had a maid’s cart sitting outside, Jones saw the victim’s
body, immediately ran out of the room, drove across the street to a restaurant, and had someone call
the sheriff. He could not recall exactly what he told the person at the restaurant about the victim.
Thereafter, he drove Ms. White to her home in Dickson and returned to the motel to discuss his
discovery with Sheriff Weakley, whom he said was a friend of his. He presumed that the sheriff
knew why he was at the motel that day and admitted he told the sheriff that he was concerned about
his wife finding out why he had been there. Jones testified that Sheriff Weakley tried to “put [him]
at ease about the problem of being at the motel there with Vern[e]dith.” When asked further about
this issue, Jones said that he understood Sheriff Weakley would not question him about it. He also
understood that none of the attorneys would question him about it, but remained nervous about
testifying at the trial. He said that Sheriff Weakley called him the evening of the murder and asked
him not to discuss it with anyone. Jones said that he was not contacted by any attorney prior to his
testimony at trial, and his first contact with any attorney occurred when he was called to testify at
the trial. Jones testified that he knew nothing concerning the actual murder itself. He stated that he
did not see anyone at the motel that morning other than a woman who pulled into the parking lot in
either a brown or maroon car. He could not recall testifying at trial that the woman left her car and
knocked on the door of the room where he later found the victim.

        Marion Jones, Ken Jones’s wife, testified at the post-conviction hearing as to her husband’s
longstanding affair with Vernedith White. She did not remember exactly when she learned of the
affair but knew of it by the time of the petitioner’s trial in 1986. She and Ken Jones had been
married since 1956, and he had been involved in several extramarital affairs. She testified that after
Jones suffered a stroke and entered the nursing home, she learned that he had given power of
attorney to Ms. White. She also discovered that he had given Ms. White approximately $30,000.
She did not know that her husband had testified at the 1986 trial until Connie Westfall, an
investigator with the post-conviction attorney’s office, contacted her years later. She said that her
husband had a temper and had been verbally abusive to her but had never hit her.

       Vernedith White, Ken Jones’s former girlfriend, testified at the post-conviction hearing that
she had neither been called to testify at the 1986 trial nor been contacted by anyone for investigative
purposes prior to the post-conviction proceedings. She acknowledged at the hearing that she had
been involved in an affair with Ken Jones for eleven years and was at the CeBon Motel on the day
Jones discovered the victim’s body. Each week they rented one of two rooms, normally from the
manager or the maid, and were usually at the motel from approximately 9:00 a.m. until 12:00 noon.

       According to Ms. White, Ken Jones picked her up around 8:00 a.m. on Sunday, March 3,
1985, as was his custom. She lived in Dickson and estimated that they arrived at the motel around
9:00 a.m. They could not find anyone at the motel and waited in the parking lot. She suggested to
Jones that they leave and go home or somewhere else instead of waiting, but he did not take her


                                                 -7-
advice. She remembered a woman pulling into the motel parking lot, but did not recall her leaving
her vehicle and knocking on the door, as Jones had testified at the 1986 trial. She said they did not
leave the motel parking lot to go to the restaurant as Jones had testified. After they had waited
awhile at the motel, Jones told her he was going to get a room key from a dish in the office and they
would just use the room and leave. Ms. White said that, after Jones returned to the van with a key
to room 21, they drove over and parked in front of that room. Jones told her to wait in the van while
he went to check the room. Ms. White testified that the curtains to the room were open, and she
could see sheets on top of both beds. Jones walked in the room past the beds, saw the victim’s body,
and ran out of the room. She could see Jones the entire time he was in the room, which was “[n]ot
even a minute.” He was very scared when he ran out and told her there was a dead woman in the
room. She wanted to go inside, but he would not let her. She said that Jones did not have any blood
on him when he came out of the room and returned to the van. She believed that it was
approximately 12:00 noon when Jones found the body. They immediately drove to the restaurant
and called the sheriff. She was not sure if Jones or a woman at the restaurant actually placed the call.
Informed that the emergency call had been made at 2:36 p.m, she said that she must have had her
times wrong. Jones drove her home, which was an approximately forty-five-minute drive from the
motel, and then returned to talk to the sheriff.

        Ms. White testified that she and Mr. Jones had been together at the CeBon Motel on at least
100 occasions prior to March 3, 1985, but they had never before retrieved a key in the manner they
did that day. She could not recall if Jones returned the key to room 21. Although she had seen the
victim cleaning rooms at the motel on prior occasions, she did not know her name. She recalled that
the day of the murder was a warm day, and she and Mr. Jones sat in the parking lot with the van
doors open. They neither saw nor heard any suspicious activity at the motel that day prior to Mr.
Jones discovering the victim’s body. She believed they would have seen anyone who entered or left
either room 21 or room 9.

        Ms. White said that she and Mr. Jones were co-owners of a sporting goods store and that
Sheriff Weakley was a regular customer. She testified that she never discussed the events of March
3, 1985, with Weakley and understood that he had told Jones that it was all right for him to take
White home and then return to discuss the matter. She said that her relationship with Jones had
ended about two years after March 3, 1985. According to Ms. White, there was no possibility that
Ken Jones had anything to do with the victim’s murder.

         Sandra Kilgore testified that she served on the jury in the petitioner’s 1986 trial. After
learning that she had been selected for a jury, she called her pastor from home and asked for biblical
scriptures regarding capital punishment. She said that she spoke to her pastor before she was sworn
in as a juror in the petitioner’s trial. She did not know that the State was seeking the death penalty
in the petitioner’s case until she came to court for jury service. According to Ms. Kilgore, there was
some division among the jurors during deliberation.

       Mary Sizemore of the Cheatham County Ambulance Service testified she and her partner
went to the CeBon Motel in response to a call from someone at the Donnell Restaurant about a


                                                  -8-
stabbing at the motel. Ms. Sizemore and her partner searched room to room until they came to a
room with a maid cart outside. Her partner indicated that the room was open. They entered the
room and found the victim lying on her back wrapped in what appeared to be a bedspread up to her
neck. The victim’s wounds were not readily apparent, and they had to unwrap her and pull up her
dress to actually see the wounds. They were not able to find a pulse on the victim. Ms. Sizemore
remembered that the man who had reported the stabbing subsequently returned to the scene and
talked with the sheriff. She later learned that this man was Ken Jones.

        Maxey Jean Kittrell testified that she was working at the CeBon Restaurant on March 3,
1985, when a man came in and reported a stabbing at the CeBon Motel. She called an ambulance
service and reported the stabbing.

        J. Kenneth Atkins, one of the prosecutors in the petitioner’s original trial in 1986, testified
that he was involved both in the preparation for trial and the trial itself. He denied that Sheriff
Weakley had asked him not to question Ken Jones regarding his reason for being at the CeBon Motel
on the day of the murder, but acknowledged knowing that Jones was at the motel with a woman
other than his wife and that Sheriff Weakley was concerned about embarrassing Jones. Atkins said
that he had known Jones prior to his involvement in the petitioner’s case because he had “prosecuted
a guy that sold drugs and resulted in [Jones’s] son’s death.” He testified that Jones did not express
any reservation about testifying at the petitioner’s trial, and Sheriff Weakley never asked him to limit
his questioning of Jones. Atkins acknowledged that he did not interview Vernedith White. In his
opinion, trial counsel were not deficient in their representation of the petitioner.

         James W. Kirby, a former assistant district attorney general and, at the time of the post-
conviction hearing, the Executive Director of the Tennessee District Attorneys’ General Conference,
testified that he was involved in prosecuting the petitioner at the 1986 trial. He said that Atkins was
the prosecutor who talked with Ken Jones and examined him on the witness stand. Kirby
acknowledged that he was present at the deposition of Jones taken prior to the post-conviction
hearing and had briefly discussed it with Atkins. He said that the deposition contained testimony
that was not brought out at the 1986 trial. He did not recall having any discussions with Sheriff
Weakley prior to the petitioner’s trial, but it was his understanding that Atkins recalled discussing
Jones’s situation with Sheriff Weakley. Kirby also testified that in the 1980s most of the juries he
was involved with in Cheatham County were dominated by men; however, he recalled one death
penalty case where the jury had a female foreperson.

        Robert S. Wilson was the first attorney appointed to represent the petitioner, but his
representation was short-lived because he was hired by the district attorney general’s office
approximately two months after his appointment. He said that he represented the petitioner from
shortly after his arrest in March 1985 to approximately late June 1985. He began employment with
the district attorney general’s office on August 16, 1985, and said that he never discussed the case
with anyone at that office. He testified that he had recommended Steve Stack as his co-counsel, and
Stack was appointed. He knew that Stack had no prior death penalty experience when he
recommended him.


                                                  -9-
        Steve Stack represented the petitioner at the 1986 trial and the 1989 resentencing. He had
tried two cases to a jury in the twenty months that he had been practicing law prior to his
appointment and did not believe he was qualified to serve as lead counsel on the case. Stack
estimated that between 60 and 75% of his practice at the time was civil. William Wilkinson was
appointed to assist Stack after Wilson was allowed to withdraw. Wilkinson had practiced with
Wilson prior to the time he joined the district attorney general’s office. Stack considered himself
to be co-counsel in the case, although he performed many of the lead counsel’s duties. He spent 38.9
in-court hours and 133.6 out-of-court hours on the petitioner’s case. He believed he was paid, at the
time of his representation of the petitioner at the trial, $20 an hour for out-of-court time and $30 an
hour for in-court time. By contrast, in retained cases he charged between $60 and $75 per hour for
his services. At the time of his representation of the petitioner, he did not have an office staff or an
investigator. Accordingly, he and Wilkinson did all of the investigation themselves. Although Stack
was in private practice during the 1986 trial, he was employed at the public defender’s office by the
time the case was remanded by the supreme court for resentencing and, as a public defender, was
appointed to represent the petitioner at the resentencing.

        Stack testified that he obtained a mental evaluation for the petitioner to determine
competency issues and whether an insanity defense would be available prior to the original trial, but
these services did not cover any mitigation issues. He requested the services of an independent
psychiatrist, a private investigator, and an independent mental evaluation, but these requests were
denied.

        Stack said that he had interviewed many of the witnesses who testified at trial, including the
owners of the motel and Sheriff Weakley. He recalled traveling to Bowling Green, Kentucky, but
could not remember the specific witnesses he interviewed there. He did not run a criminal
background check on Daniel Blair and, therefore, did not know he had been convicted of theft of
livestock, which might have been used for impeachment purposes. He also interviewed Bill Hines,
the petitioner’s stepfather; Bobby Joe Hines, the petitioner’s half-brother; and possibly Barbara
Hines, the petitioner’s mother. Although he recalled traveling to the home of Victoria Hines Daniel,
the petitioner’s sister, he did not remember actually meeting with her. He acknowledged that he
knew she would testify that she saw blood on the petitioner’s clothing, but he did not obtain any
information to impeach her testimony. He did not interview the petitioner’s former girlfriend,
Melanie Chandler, or her mother, Virginia Chandler, both of whom lived in North Carolina.

        Stack acknowledged that he did not present all of the mitigation proof that the post-
conviction defender had been able to assemble. He pointed out, however, that at the time of the trial
and resentencing, he did not have the benefit, apparently referring to counsel representing the
petitioner at the post-conviction hearing, of a three-year period of time to investigate the case as well
as numerous attorneys and investigators to work on the mitigation proof. He testified that, as an
appointed attorney, he did not have the benefit of working on the case as much as he would have
liked because he could not afford to do so. However, he felt he had zealously represented the
petitioner.



                                                  -10-
        Stack also testified that the defense did not challenge the composition of the jury venire at
either the 1986 trial or the 1989 resentencing, saying that it was not considered as an issue at the
original trial. Although he was aware that it may have been an issue at the time of the resentencing,
they did not have the necessary time to devote to pursuing it.

        Stack said that he did not interview Ken Jones prior to the trial because he had been told by
Sheriff Weakley that Jones was at the crime scene for only a very short period of time and did not
know anything about the murder itself. Stack testified that he knew at the time of trial that part of
Ken Jones’s testimony was false or inaccurate. However, he explained that he held Sheriff Weakley
in high regard and trusted what he had told him, saying: “I mean, I would take that man’s word for
anything in the world. He say[]s this hadn’t got a dog in the hunt, don’t embarrass the man. I wasn’t
going to embarrass the man.” Stack acknowledged that the defense team should have interviewed
Jones and that it was “ridiculous for [them] not to have gone to interview him.” He said there were
discrepancies in Jones’s testimony regarding his timing of the events which should have been
discovered and developed for the defense. Stack acknowledged that Jones testified at trial that he
did not know the gender of the victim at the time of discovery because the victim’s body was
covered with a cloth or sheet. However, the person who made the emergency call said that a woman
had been stabbed.

         Stack testified that he became an assistant public defender in 1988 and was appointed to
represent the petitioner at resentencing, as were Shipp Weems, the public defender, and Phillip
Maxey. As for the defense team’s decision to delay their opening statement at resentencing until just
prior to their proof, Stack testified that they discussed this issue, but he did not know why they
decided to do so. He said that Maxey, who was the least experienced of the three, gave the opening
statement for the defense, and both he and Weems had anticipated a different opening. He testified
that the opening did not outline the proof they planned to present, but rather simply asked the jury
to listen to their proof. He testified that the defense team made the tactical decision not to present
a closing argument because it was their opinion that General Kirby had not “presented a very forceful
argument,” and they wanted to prevent General Atkins, who was “exceptional in his ability to . . .
bring emotions out in a jury,” from making a rebuttal argument. Stack said that General Atkins had
given a very impassioned closing argument at the original trial, and they wanted to keep him from
doing so at the resentencing.

        Stack recounted that at resentencing they called Dr. Pamela Auble and Dr. Ann Marie
Charvat to testify for mitigation purposes. The two had been recommended by the Capital Case
Resource Center, with whom defense counsel worked during the resentencing, and he believed they
could explain how the petitioner had become the person he was. Dr. Charvat did not come across
as well as they had hoped, and he did not believe the jury had grasped everything she said. Stack
said that the defense team did not know the “extent and the nature of the types of abuse that [the
petitioner] went through growing up” and that the resentencing jury never saw the background that
the petitioner had. Stack further acknowledged that they did not attempt to challenge the petitioner’s
prior felony conviction in Kentucky because of the time constraints. He concluded that the public



                                                -11-
defender’s office did not have, and still does not have, the sufficient resources or the time to devote
to a capital case.

        William G. Wilkinson, who had been practicing law since 1968, testified that he was
appointed to assist Steve Stack, who had been in practice a “relatively short time.” Wilkinson
described his role as “kind of senior counsel” but said that Stack probably did more work on the case
than he did. He said he had billed 59.5 out-of-court hours and 34.4 in-court hours on the petitioner’s
case, but those numbers were very conservative and did not include time he spent traveling to
Bowling Green, Kentucky. Wilkinson testified that he believed he had sufficient time to prepare for
the petitioner’s trial, that he was adequately prepared for trial, and that none of his tactical decisions
turned out to be erroneous.

       Wilkinson knew that the petitioner’s sister, Victoria Hines Daniel, had an alcohol and drug
abuse problem and recalled examining her husband, Ernest Daniel, about her drinking problem. He
was not aware of any sexual or physical abuse allegations of Mrs. Daniel but acknowledged that
information as to this would have been useful. Wilkinson said that the petitioner “may” have told
him about the abuse inflicted upon him by his stepfather. He had the petitioner examined by a
psychiatrist who determined he was competent to stand trial.

         Wilkinson said he did not interview the four people from Kentucky who gave the petitioner
a ride and did not know before trial that one of them, Daniel Blair, was going to testify that he saw
blood on the petitioner’s shirt. Had he known of the substance of Blair’s testimony, he would have
checked Blair’s criminal record for impeachment purposes. He recalled that Blair testified about his
ability to recognize blood and about washing bloodstains out of fabric although he could not recall
Blair’s exact testimony. He acknowledged that, in hindsight, it would have been helpful to have had
an expert refute Blair’s testimony about washing out bloodstains.

       Wilkinson said that he discussed Ken Jones’s situation with Sheriff Weakley and believed
that Weakley had told him everything he knew. He did not interview Ken Jones, Vernedith White,
or Virginia Chandler and, in hindsight, would liked to have had more time to inquire about why
Jones and White sat in front of the CeBon Motel for over three hours on the day of the murder. As
for Dr. Harlan’s testimony, Wilkinson said that it may have been helpful to have had another
pathologist review Harlan’s findings.

       Regarding the petitioner’s jury, Wilkinson said that three women, two of whom he knew,
served on the jury and he believed he had adequately prepared for the jury selection. He was not
aware of any disparity between the number of women available and the number actually called to
serve in Cheatham County. He was aware of some Tennessee case law prior to 1985 where
challenges had been made to jury composition based on race or gender.

       Shipp Weems was the District Public Defender for the Twenty-Third Judicial District, which
included Cheatham County, at the time of resentencing and in that capacity had been appointed to
represent the petitioner at resentencing. He was not involved in the preparation phase of


                                                  -12-
resentencing but assisted in voir dire. Weems confirmed Stack’s testimony that they agreed to waive
closing argument at resentencing in order to prevent the prosecution from giving a rebuttal argument.
He had tried six or seven capital cases prior to the petitioner’s resentencing and was aware of the
importance of mitigation proof. In hindsight, he felt that much more work should have been done
on the petitioner’s social history for purposes of mitigation. As to the workload of the public
defender’s office in 1989, Weems said that the office had three attorneys who each handled
approximately 800 cases. Although the office was budgeted to have an investigator, that position
was filled by an attorney because the office was only budgeted to have two attorneys, and that
number could not handle the entire district. In his opinion, at the time of the petitioner’s
resentencing, the attorneys in that public defender’s office “didn’t have the luxury to prepare a
misdemeanor case much less a capital case.” Weems testified that they were “looking for women”
when choosing the jury for resentencing, and concluded that the defense team did not get the jury
pool they wanted for the resentencing.

        Phillip Maxey, a juvenile court judge at the time of the post-conviction hearing, had been
appointed to represent the petitioner at resentencing. At the time, he had been practicing for about
five years. Although he had taken several cases to trial, he “knew very little” about capital case
representation at the penalty phase. He testified that he interviewed Sheriff Weakley, the
investigating officers, and a juvenile court judge in Bowling Green, Kentucky. He also worked with
Drs. Auble and Charvat and the Capital Case Resource Center. He said that the defense team was
as prepared as they could have been and that they had been able to negotiate two life sentences for
the petitioner, which were denied. He believed they had presented strong mitigation proof and said
they waived closing argument in an effort to prevent the State from making a rebuttal argument.
They believed that the State would wait until rebuttal to “really throw it all” at the jury. He did not
recall any discussions about challenging the jury venire.

        Daniel Blair, who testified at the petitioner’s original trial, was one of the four people from
Kentucky who picked up the petitioner on March 3, 1985, on Interstate 65, after they noticed his car
was disabled, and drove him to Bowling Green, Kentucky. Blair was on probation at the time and
was not supposed to have left the State of Kentucky, although he was never charged with violating
his probation and was told by a Kentucky deputy sheriff that his leaving the state would not be a
problem. At the post-conviction hearing, Blair testified that he had seen “what looked like blood”
on the petitioner’s shirt, although at the trial he had testified that it was blood.

         Melanie Chandler, the former girlfriend of the petitioner and a friend of Victoria Hines
Daniel, his sister, testified that she and the petitioner had a child, Anthony Scott Hines, who was
born January 1, 1981. The petitioner’s mother adopted the child when he was two years old. She
testified she had last seen the petitioner around February 1985 when he came to her house in North
Carolina. When he arrived, he only had a few items with him, one of which was a small, folding
knife she previously had given him. During his visit, they went to a party with some friends of hers,
and, as they were returning home, the petitioner and the friend who was driving got into an
argument. After the petitioner grabbed the friend who was driving the car, Chandler grabbed the
petitioner, who accidentally struck her in the eye, causing bruising. She said that he had never before


                                                 -13-
struck her but had always been protective. Chandler’s mother, Virginia Chandler, called the police
and forced the petitioner to leave. Later that night, the petitioner appeared at Melanie’s window.
She allowed him inside, and he hid in her closet for approximately one week before her mother
discovered him. Her mother bought the petitioner a one-way bus ticket to Kentucky.

         Chandler said that she knew her mother had testified at the petitioner’s trial, but defense
counsel never contacted her. She acknowledged knowing she was supposed to appear in court at the
trial, but she had just had a baby and decided not to do so. She testified that she did not know that
the petitioner was on trial for murder. She thought her mother lied at the trial when she stated that
she had seen the petitioner sharpening his knife with a bootstrap. She said that her mother later told
her that the petitioner had been found guilty of murder and had been executed. She believed the
petitioner was dead until the post-conviction defender’s office contacted her in 1997 or 1998. Since
learning that the petitioner was alive and in prison, she had written him several letters and had visited
him in prison.

         Robert Ernest Daniel testified that he had been married to Victoria Hines, the petitioner’s
sister, for about two years. He met the petitioner while the petitioner was on parole in Kentucky and
gave him a job doing construction work. The petitioner was a hard worker, and they were friends
“[t]o a point.” Daniel said that the petitioner carried a small pocketknife with him on the job and
also had an “Army type survivor” knife with a fixed blade. He believed that the knife blade was
approximately six inches long, with one end serrated and the other sharp. He recalled that the
petitioner gave the knife to his brother, Bobby Joe, who kept it in a drawer at their home.

        Daniel testified that on March 3, 1985, the petitioner appeared at his apartment, wearing blue
jeans, a white t-shirt, an Army jacket, and white tennis shoes. Victoria’s birthday was the day before
or the day after the petitioner arrived, and the petitioner wanted to buy a grill for her. Daniel gave
the petitioner some money because the petitioner did not have enough to purchase the grill. He then
drove the petitioner to Park City or Cave City, Kentucky, and dropped him off. Later that night, the
police came to his home and questioned him about the petitioner’s whereabouts. At the time, he
thought the police wanted to question the petitioner about a probation violation, so he “acted stupid.”
When he later learned that the police wanted to question the petitioner in connection with a murder,
he told the police where he had taken the petitioner.

        On cross-examination, Daniel said that he testified at the original trial that Victoria only
drank occasionally “because she was my wife at the time and I would be very protective of her.”
This testimony was inaccurate because Victoria drank heavily. He denied testifying that the
petitioner had something bulky in his Army jacket and that he did not know when Victoria’s birthday
was. He denied remembering seeing the petitioner with a set of car keys or that he had asked the
petitioner why he had a Volvo. During a recess, the court ordered Daniel to take a breath alcohol
test. Daniel admitted that he had consumed “a couple of beers” before coming to testify at the post-
conviction hearing, and the court found him to be in contempt, ordering him to serve twenty-four
hours in the Cheatham County Jail.



                                                  -14-
         Victoria Hines Daniel Furlong, the petitioner’s sister, testified at both the original trial and
the post-conviction proceeding. She said that her stepfather, Bill Hines, was abusive to her, her
siblings, and her mother. Her stepfather used “tobacco sticks, belts, belt buckles . . . anything that
he could get a hold of to whoop us with.” He also drank beer and liquor “all the time” which caused
his attitude to change, and the “beatings got worse.” She said that the petitioner often attempted to
intervene to protect her and their sister, Debbie, which caused the petitioner to be beaten more
severely. She recalled one incident where her stepfather knocked the petitioner into the corner of
a fireplace, rendering him unconscious. However, medical attention was not sought for the
petitioner. Often there was not much food in the house. In addition to the physical abuse, Bill Hines
sexually abused her from the age of nine. She and the petitioner began drinking at the age of eleven
or twelve. They both also smoked “dope,” and the petitioner sniffed glue. She admitted that she
drank heavily from the time she was twelve or thirteen and had only recently stopped drinking. She
also said that she was married to Ernest Daniel for five years, during which time he often beat her
severely.

        Furlong said that her birthday was February 4 and that on March 3, 1985, the petitioner had
given her a grill as a belated birthday gift. She said that, if she had testified at the original trial that
she saw blood on the petitioner on March 3, 1985, when he arrived at her house, it was because she
had been drinking. At the post-conviction proceeding, she testified that the petitioner had fallen in
red clay mud prior to arriving at her house and that is what she saw on his clothes. She said she was
not interviewed by the petitioner’s attorneys prior to the resentencing, and the prosecutors had
tricked her into talking to them prior to the original trial by telling her they were the petitioner’s
attorneys. She said she was drinking whiskey and water when they came to her house and asked
questions. She thought they were tape-recording their conversation, but they denied it. She said she
later saw a recording device and ordered the men out of her home.

        Furlong acknowledged that she was an alcoholic. She did not remember testifying that the
petitioner had gotten into a struggle at the motel and did not believe that she had testified as the
transcript of the original trial reflected. If the transcript were correct, then she was “[p]robably”
lying in 1986 because of her drinking. She admitted that she had never reported any of the sexual
abuse by her stepfather. It was her understanding that her stepfather had continued with his sexual
abuse of young girls, including her niece, but she had never reported him to law enforcement
officials.

         Lee David Miles testified at the post-conviction hearing that he is a transsexual and formerly
had been the petitioner’s oldest sister, Debbie Hines. According to Miles, the petitioner and Bill
Hines were very close until the petitioner was approximately age six and learned that Bill Hines was
not his biological father. At that time, the petitioner became resentful toward Bill Hines. Miles saw
Bill Hines hit the petitioner with his hands, a belt, a tobacco stick, and a car antenna. Hines beat the
petitioner “four or five times a week.” Miles related one incident where Bill Hines threw the
petitioner, who could not swim, into a partially frozen pond as punishment for throwing tires in the
pond. An uncle and Miles had to go in after the petitioner, and Miles pulled him out. Miles also
testified that their stepfather got mad at Miles for breaking an antenna off his car. He beat Miles,


                                                   -15-
Furlong, and the petitioner with the antenna to the point that he drew blood. Miles further testified
that the petitioner once fell off a stack of hay bales on top of a wagon. He hit his head on the ground
and was bleeding, but Bill Hines refused to take him to the doctor. Miles also testified that the
petitioner was very protective of his siblings and often intervened during Bill Hines’s attacks and
abuse. Bill Hines also shot and killed the family dog and her puppies in front of the children.

        Miles also testified that Bill Hines sexually abused him four to five times a week from the
age of six until the age of eighteen and that he was a female at the time the sexual abuse occurred.
Miles also said that he was raped at the age of sixteen by Bill Hines and that Hines tried to force him
to have sex with a friend of his, but Miles “fought with his friend for a while and then his friend got
tired and said well I am not going to do this, let’s just leave.”

        Miles said that when the family moved to Bowling Green, Kentucky, the petitioner and
Victoria began drinking heavily and the petitioner also began sniffing glue and gasoline and smoking
marijuana. The children often ate cereal with water for all three meals because their parents spent
their money on beer and cigarettes. However, Bill Hines bought food for Bobby Joe Hines because
he was his biological son. Miles never saw Bill Hines strike Bobby Joe. Miles recalled visiting the
petitioner at the Green River Boys Camp and the petitioner cried and begged their mother to take him
home, but their stepfather refused to let her. After their mother attempted suicide, she left with only
Bobby Joe and moved to Illinois. Soon thereafter, Miles left home also. Their mother subsequently
returned home after learning that Miles had left. Miles testified that he was never contacted by the
defense attorneys, but he tried to contact them to offer to pay their fees.

       Connie Westfall, an investigator in the post-conviction defender’s office, said that she met
with the Hines family and that it took them a “great deal of time” to open up to her. Ms. Westfall
estimated that she worked more than 1000 hours on the petitioner’s case.

         Dr. Pamela Auble, a psychologist specializing in clinical neuropsychology, who had testified
at the resentencing, testified also at the post-conviction hearing, saying she first evaluated the
petitioner in May 1989. After meeting with the petitioner, she reviewed his social history, as well
as his school records, prison records, and records from the Middle Tennessee Mental Health Institute
which were provided by defense counsel. Her diagnosis of the petitioner was paranoid personality
disorder and dystonia, which is depression.

         Dr. Auble said that she did not have enough time prior to the resentencing hearing to develop
a trusting relationship with the petitioner. She said she was only given a little over a month to work
on the petitioner’s case but that, in general, three to four months was optimal, depending on the case.
It would have been helpful to have had the petitioner evaluated by an expert in chemical dependency
and to have had more information about his social history. She acknowledged that, at the time of
resentencing, she knew little about the petitioner’s alcohol abuse or the sexual abuse in his family.
She testified that Steve Stack “didn’t seem very confident in his own abilities,” and she believed
defense counsel did not have much understanding of the mental health issues in the case.



                                                 -16-
        On cross-examination, Dr. Auble acknowledged that she knew the petitioner’s parents drank
when they were not at work, suspected that he had suffered physical abuse, and knew that he abused
alcohol and drugs. She said she was not aware of the alcoholism in the petitioner’s family or of the
extent of the abuse suffered by the Hines children. She believed her diagnosis of the petitioner’s
emotional problems, of which she testified at the resentencing hearing, was correct. She said that
she would liked to have referred the petitioner to an expert on the issue of addiction, such an expert
being needed to determine the extent and nature of the alcoholism and drug abuse and the effects
these had on the petitioner. She explained that the combination of the history of addiction in the
petitioner’s family that she now had knowledge of, together with his relatively normal
neuropsychological testing, raised the issue that the petitioner may have a “chemical lack of
neurotransmitter substance.” Dr. Auble said that this was one area of her testimony that would have
been different had she had additional time to work on the petitioner’s case.

        Dr. Ann Marie Charvat, a sociologist and a mitigation specialist, also testified at the
petitioner’s resentencing hearing and again at the post-conviction hearing, the former being the first
capital case on which she had worked. Her first involvement with the petitioner’s case was on May
10, 1989, “just a matter of days” after receiving her PhD. Dr. Charvat interviewed the petitioner,
several of his family members, and several of his friends prior to the resentencing. She did not
obtain any medical records on any of the family members. The petitioner told Dr. Charvat about the
physical abuse he and his sisters endured, and she learned of the petitioner’s alcohol and drug abuse.
Dr. Charvat was not told about the sexual abuse, but she suspected that it had occurred. She said that
information about the sexual abuse and the fact that the petitioner tried to be his sisters’ protector
were important for purposes of mitigation. Asked if she had overlooked anything in her evaluation
of the petitioner, Dr. Charvat said that she had “failed to look at certain factors . . . which include
family history, medical records. . . . I would have collected more records. I believe that I did identify
that his bond to society had suffered. I failed to tie it to the crime. There are a number of things to
investigate that . . . I hadn’t.”

         Dr. Charvat testified, as she had done at resentencing, regarding the petitioner’s confinement
at Green River Boys Camp in Kentucky, where a method of behavior modification known as
grouping was used. The groupings often became physically and verbally abusive. She explained
that the bad behavior of one boy in the group caused the entire group to lose privileges. Dr. Charvat
testified at resentencing about one incident at Green River where the petitioner and another boy were
pushed into sewage. She said that she was aware in 1989, the time of resentencing, that programs
using grouping had extensive problems and that there was literature available on this issue. She
explained that although the activities and potential abuse at Green River, as they related to the
petitioner, could have been extremely important for mitigation purposes, she did not have enough
time to further develop those issues.

         Dr. Charvat said that she still agreed with the sociological conclusions that were presented
to the jury at the resentencing. She believed the weakness was in the way they were presented to the
jury and said that “there were many parts of [her testimony] that . . . were not well articulated, not



                                                  -17-
clear.” It was also her opinion that the petitioner’s background was not adequately distinguished
from that of any other unruly child.

        Dr. William Kenner, a psychiatrist, testified that the petitioner suffered from post-traumatic
stress disorder (“PTSD”), antisocial personality disorder, status post-head injury, and inhalant abuse.
He said that the petitioner was sexually abused by both his stepfather and a maternal uncle and
physically abused by his stepfather, opining that the abuse caused the petitioner’s PTSD. The
physical abuse inflicted upon the petitioner by his stepfather included hitting him in the head with
a tobacco stick, whipping him with car radio antennas, throwing him into a pond although he could
not swim, and shooting the family dog and her puppies in front of him and his siblings. The
petitioner’s mother was also a victim of Bill Hines’s abuse, and the petitioner often tried to protect
her. At the age of eight or nine, the petitioner sustained a head injury when he fell off a wagon of
hay and was knocked unconscious. The petitioner did not receive any medical treatment for this
injury.

        Explaining how PTSD affects the brain, Dr. Kenner said that a person with PTSD repeats or
replays traumatic events throughout life and that PTSD can alter a person’s character and change his
or her behavior. Dr. Kenner testified that in the petitioner, PTSD created a paranoid quality. Dr.
Kenner opined that the head injuries the petitioner suffered throughout his life could have caused
organic personality syndrome, which made him even more volatile and difficult to manage. The
petitioner’s abuse of inhalants such as glue and gasoline also caused damage to his brain. Dr.
Kenner concluded that the petitioner’s choosing a woman for his victim was inconsistent with the
petitioner’s personal history, as there was no indication that he had hard feelings toward women.

         On cross-examination, Dr. Kenner acknowledged that the petitioner had been in and out of
jail since the age of fifteen. He further acknowledged that a report prepared by the Middle Tennessee
Health Institute and the Harriet Comb Mental Health Center indicated that the petitioner experienced
difficulty in relationships with women, as the result of problems with girlfriends and family
interference, exhibited a preoccupation with thoughts of violence, and displayed extreme prejudice
toward African-Americans. Additionally, a report prepared by the Tennessee Department of
Correction stated that the petitioner, once confined on death row, acknowledged to security personnel
that he hated both women and African-Americans. Dr. Kenner testified that although the petitioner
said that he hated women, he did not believe him because his behavior indicated differently. He said
he had much more information concerning the petitioner than Dr. Charvat did prior to preparing her
report for the resentencing. He believed that Dr. Charvat should have interviewed the petitioner’s
sisters and mother in order to get a true picture of “how bad things were for [the petitioner] growing
up.”

         Dr. Murry Wilton Smith, a specialist in addiction medicine, testified that the petitioner is a
Type II alcoholic. He explained that Type II alcoholism, a primary medical illness based in brain
chemistry, is inherited and involves rapid early onset of alcoholism, usually between the ages of nine
and twelve, and is associated with antisocial behavior and early legal trouble. Dr. Smith also
testified that the petitioner had used inhalant solvents and marijuana. He was aware of the


                                                 -18-
petitioner’s low levels of serotonin, which is associated with violent behavior and Type II
alcoholism. He said that current treatment for Type II alcoholism, which was not available in 1989,
consisted of alcohol and drug treatment, intensive physiotherapy with a counselor, and medication
to improve the serotonin level. On recross examination, Dr. Smith acknowledged that although
medications to increase serotonin levels were available in 1986, there was not a routine to monitor.
He also stated that a characteristic of Type II alcoholics is a lack of motivation to follow instructions
or a schedule.

        Dr. Paul Rossby, an expert in molecular neurobiology and the study of serotonin, testified
that, as a molecular biologist, he studies the chemistry of the brain and the biological basis of
behavior. According to Dr. Rossby, serotonin blocks pain and orchestrates inhibition within the
brain. Dr. Rossby testified that research of serotonin dated back to at least the 1970s. He further
said that there would have been a “tremendous amount” of literature available on serotonin at the
time of the petitioner’s resentencing in 1989 and a “great deal” of literature available at the time of
the petitioner’s trial in 1986. He said that low levels of serotonin have been associated with
impulsive behavior, but none of the studies has indicated that it causes violence.

        Dr. Rossby had a spinal tap performed on the petitioner to determine his serotonin levels,
which were “at the extreme low level” of the normal male population. He opined that the
petitioner’s serotonin levels, coupled with his Type II alcoholism, resulted in the petitioner’s being
organically impaired and said that the petitioner does not have the biological capacity to control his
impulsive behavior. Dr. Rossby said that in a person with low levels of serotonin, once an impulse
is triggered, there is no ability to control the impulse. He acknowledged that he did not testify on
the issue of serotonin levels until 1999. He first worked on a case involving a serotonin defense in
approximately 1992, and was not aware of any expert who had testified on the issue of serotonin
prior to the time he was involved with his first case.

        Dr. Henry Cellini, an educational psychologist who was offered as a rebuttal witness on
behalf of the State, testified that serotonin research began in the 1970s but had only been fully
developed in the last fifteen to twenty years. With regard to the petitioner’s case, Dr. Cellini testified
that the practical application of serotonin levels to behavior was in its “infancy” in the mid-1980s.
He said that research indicates that the two primary factors of antisocial personality disorder are
impulsive aggression and psychopathic tendencies or thinking.

        Two witnesses were presented as to the claims regarding the Green River Boys Camp in
Kentucky and its alleged effects on the petitioner. Tammy Kennedy, an investigator with the post-
conviction defender’s office, said that she interviewed former residents and staff members. The
former residents told her that, when they arrived at camp, they were immediately subjected to
grouping, which consisted of several boys surrounding the new resident and physically and verbally
abusing him. She said that the former residents told her at times they had sewage detail, which
involved two boys holding a resident by the legs and dumping him into the sewage. They were
forced to scrub the pavement until their brushes were gone and their hands were blistered. A
juvenile specialist who had visited Green River advised Ms. Kennedy that schooling was minimal


                                                  -19-
and that there were reports of physical, sexual, and verbal abuse of the residents. Ms. Kennedy said
that several other death row inmates were former residents of Green River.

         Dr. David Richart, an expert in the operation of the juvenile justice system and residential
treatment facilities in Kentucky, testified that he had investigated Green River in connection with
his position as the Executive Director of Kentucky Youth Advocates, Inc. He said that the theory
behind creating the juvenile camps was to take youthful offenders out of large, training school
facilities and place them in smaller, community-like settings where they would both work and
receive therapy consisting of guided group interaction, positive peer culture, and reality therapy.
These theories of treatment were based on the fact that juveniles who committed crimes did so for
peer-related reasons. The purpose of the therapy was “to turn something negative into something
positive.” However, problems arose when the state reduced the number of employees, which
resulted in the staff allowing the residents to discipline themselves. Dr. Richart’s investigation also
revealed that the staff had not received the essential training required for this type of “sophisticated
treatment.”

        Dr. Richart testified that new residents at Green River were first greeted by a group of fifty
to sixty boys who encircled the new resident, screaming at and intimidating him. Because the group
would surround the new resident so tightly that the staff could not see “what was going on below
shoulder height,” the new resident was often physically assaulted as well. Dr. Richart explained that
residents at Green River were subjected to “grouping” for simple reasons, such as not having a good
opinion of themselves or taking an extra packet of sugar at lunch. After becoming convinced that
the residents were being harmed “as a result of using these very controversial emotionally and
psychologically harassing techniques,” Dr. Richart became concerned about the youths’
psychological state and the damage that might occur. He recalled having to transport some youths
to mental institutions because they experienced “psychotic breaks” while at camp. Dr. Richart said
that Green River had compounded the youths’ feelings of isolation and had done nothing to
contribute to pro-social behavior, and he was not surprised to learn that many of them subsequently
went to prison.

         In Dr. Richart’s opinion, the petitioner’s six and one-half months at Green River intensified
his criminal tendencies, exacerbated his antisocial tendencies, and made him see the world as a
hostile place. Dr. Richart also believed that the petitioner was completely inappropriate for
grouping, “because he just wasn’t the kind of person that wanted to talk about his family.” Referring
to the treatment at Green River as “psychological torture,” Dr. Richart opined that it was “probably
the worst experience of [the petitioner’s] life.”

         On cross-examination, Dr. Richart acknowledged that some juveniles may have benefitted
from Green River and that residents, including the petitioner who had a substance abuse problem
prior to going to Green River, would not have had access to drugs or alcohol while there. Dr. Richart
read into evidence some of the staff’s reports on the petitioner, which characterized him as easily
agitated and having a bad temper but also as a capable person, a good worker, and “fairly consistent
in his supportive leadership in the group.”


                                                 -20-
        Dr. Chris Sperry, the Chief Medical Examiner for the State of Georgia, testified concerning
the number and location of stab wounds found on the victim. He had reviewed the victim’s autopsy
report, photographs of the crime scene, and witness reports of Mary Sizemore and Sheriff Weakley.
He testified that there were pools of blood beneath the air conditioning unit and a spot where the
victim’s body was found, but none between those two areas. Due to the lack of blood in the room,
Dr. Sperry concluded that the struggle was “very quick” and may have occurred in less than one
minute. He also stated that all of the wounds, except the vaginal wound, were inflicted very rapidly.
He opined that the victim remained conscious for about fifteen to thirty seconds following the stab
to the heart. He explained that once she lost consciousness, she felt no pain; it was as if she were
under anesthesia. As a result of the wounds to her heart, it was not possible for her to have been
conscious for three or four minutes, contrary to Dr. Harlan’s testimony. Dr. Sperry further estimated
that the victim would have been dead, her heart would have stopped beating, between three and four
minutes after she sustained the heart wounds. On cross-examination, Dr. Sperry acknowledged that
the stab to the heart could have occurred last, and, if so, the victim could have been conscious until
that time.

        Dr. Sperry also testified that it was possible that the assailant had blood transferred onto his
or her person because the victim had blood on the inside of her legs, and it appeared that someone
with bloody hands had gripped her legs. It also appeared that the victim had been dragged to the area
where her body was found, which would also have caused a transfer of blood from her to the
assailant. He said that blood is difficult to wash out of clothing and that if someone committed a
stabbing, washed off the blood, and then immediately got into a vehicle, there would usually be
traces of blood transferred to the vehicle. Dr. Sperry testified that the wound to the victim’s vagina
occurred at or after the time of death. He said that the infliction of this type of wound was “an
indicator of some kind of mental problem dealing with . . . women. Hatred or anger towards
women.” He also said that this type of injury was a “very specific expression of power of a female
victim.”

         Dr. Charles W. Harlan, who performed the victim’s autopsy, testified that he strongly
disagreed with Dr. Sperry’s opinion that the victim’s attack and injuries occurred in less than one
minute. He said that the victim lost 950 “cc’s” of blood into her chest. He explained that the heart
pumps between 25 and 30 “cc’s” per heartbeat “under an optimum situation,” but the stroke volume
would be “gradually diminishing” because of blood squeezing the victim’s heart, as the result of the
wound, and the loss of blood itself. He further testified that an individual is usually conscious
approximately 80% of the time that it takes to bleed to death. He believed that it would have taken
considerably longer than thirty seconds to a minute for the victim to bleed to death, opining that “she
probably lived a minimum of four to five minutes and that she would have been conscious for 80
percent of that time. It’s possible that she lived longer than that, up to ten to fifteen minutes, but at
least a minimum of four to five minutes.” In his opinion, the victim’s vaginal wound was inflicted
at or near the time of her death, and there was no way to know for certain whether she was conscious
at the time it was inflicted. Dr. Harlan acknowledged that Dr. Sperry had testified in contradiction
to his testimony in nine cases, including the petitioner’s case.


                                                  -21-
       The proof at the post-conviction hearing on the issue of the jury venire consisted of five
witnesses and a report prepared by a statistician, Dr. James M. O’Reilly, which concluded that there
was an underrepresentation of women on the jury venire for Cheatham County for years 1979 to
1990. During the pertinent years, the female population of Cheatham County accounted for 50.6
to 50.7% of the total population. By contrast, the percentage of women in the Cheatham County
venire was between 10 and 22%.

        Connie Westfall, of the post-conviction defender’s office, testified that she had investigated
the issue of the composition of the jury pool at the petitioner’s 1986 trial as well as his resentencing.
At the time of her investigation, only one of the three jury commissioners for the relevant time
period, C.E. Dunn, was able to meet with her. Dorris Winters, one of the commissioners, was
deceased; and the other, Martha Adkisson, was confined to a nursing home and unable to be
interviewed because of her mental condition. Dunn provided Westfall with an affidavit because he
had suffered a stroke and was unable to travel to court. Basically, his affidavit stated that they used
the voter registration list as the exclusive source of obtaining people for the purpose of filling the
jury box, and the jury commissioners met every two years to fill the jury box. Ms. Westfall testified
that she also interviewed Delores Moulton, Lloyd Harris, the tax assessor, and trustees. She said that
when she first spoke with Mr. Harris, he recalled using the voter registration list and later
remembered that they may have used property lists and the telephone book.

         Dorothy Jones, the Cheatham County Trustee, said that she had been the trustee for six years
at the time of the post-conviction hearing and, prior to her service as trustee, her husband was the
trustee. She had worked in the trustee’s office since 1982. During her years of employment in that
office, no one ever had been allowed to remove the tax roll books from the office. She
acknowledged, however, that the tax records were public records and anyone could come into the
office and review them.

        Betty Balthrop, the Cheatham County Property Assessor, said that she had occupied that
position since 1988 and had worked in the office since 1978. Ms. Balthrop testified that since her
employment in the assessor’s office, no one had physically removed the tax records for the purpose
of copying them. She acknowledged that the tax records were public records which exist in
Nashville and elsewhere in the state.

        Delores Moulton was the Cheatham County Circuit Court Clerk from 1990 to 1998.
Previously, she served as the deputy clerk, beginning in 1972. Her father, Lloyd Harris, was the
Cheatham County Circuit Court Clerk prior to her tenure. Ms. Moulton testified that the jury
commissioners met every two years to charge the jury box and that the voter registration list was
their major source of obtaining names because they had more access to it. She stated that they
started out “randomly, maybe, every sixteenth one or twentieth one down and wr[o]te the name and
address on a little jury ticket.” She explained that each of the jury commissioners took a different
section of the list and worked independently. While they were charging the box, the only names
taken out were the names of those known to be deceased. She further explained that at the end of
the two years, the names in the box were not removed, but new names were added.


                                                  -22-
         After the jury box was charged, they gathered the jury list as needed. Either a child under
the age of ten or Ms. Moulton, wearing a blindfold, picked the names out of the box. Ms. Moulton
testified that the jury commissioners sat together while compiling the names. Names of deceased
persons were discarded. If school was in session, schoolteachers’ names were set aside. Students
away at college were omitted from the list. Also, at times, if they knew a woman had just had a
baby, they removed her name. They compiled a list of 150 or more names, which made up the
sheriff’s venire. The sheriff summoned these persons to court where each was assigned a number.
The judge then drew twelve numbers out of a box, and those persons comprised the grand jury. Ms.
Moulton testified that Dorris Weakley was the sheriff in 1986 and 1989. During his administration,
only thirty to fifty prospective jurors out of 150 actually appeared in court as summoned, but the
percentages increased drastically under the next sheriff’s administration.

        On cross-examination, Ms. Moulton testified that, in addition to the voter registration list,
they also used the telephone book and tax records to randomly select names, although the voter
registration list was the main source. She believed they followed the Tennessee statutes in gathering
and preparing the jury venire. She said the commissioners “never discriminated anyone because of
race, color, or nationality or men or women.” She recalled that Martha Adkisson complained if she
thought too many women were being put on the list; however, she believed Ms. Adkisson’s reason
for doing so was “to equal out . . . the men and the women.”

        Lloyd Harris, Delores Moulton’s father, served as the Cheatham County Circuit Court Clerk
prior to Ms. Moulton, occupying the position for twenty-four years. He testified that the three jury
commissioners met every two to three months to select names, and he recalled Junior Dozier, the tax
assessor, providing him with names from the tax lists. He used the telephone book for this purpose,
although most of the names were taken from the voter registration list. He testified that Martha
Adkisson was a schoolteacher and sometimes set aside the names of teachers because, at that time,
there was a shortage of substitute teachers. He also recalled that, a few times during harvest season,
a farmer’s name was set aside, and, during the 1970s and 1980s, it was easy for women with young
children to get out of serving on the jury, but that changed through the years. He stated that the jury
box was charged about every two years. He testified that they went down the voter registration list,
wrote down every twentieth or twenty-fifth name, placed it in the box, and tried not to discriminate
against any class of potential jurors. Harris said that the voter registration list, the tax list provided
by Dozier, and the telephone books were the only sources used in the jury selection at the time of
the petitioner’s 1986 trial and in 1989.

                                            II. ANALYSIS

        In his argument on appeal, the petitioner has set out five claims, three asserting that counsel
were ineffective at his 1986 trial, his 1989 resentencing hearing, and on the direct appeal of his
conviction, one asserting that he was prejudiced because of the exclusion of women from the jury
panel, and one claiming that imposition of the death penalty violates various of his rights afforded
by the federal and state constitutions.



                                                  -23-
                                       A. Standard of Review

         In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s
assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that
is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at
2063. The Strickland standard is a two-prong test:

                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the “counsel” guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel’s errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

                In any case presenting an ineffectiveness claim, the performance
                inquiry must be whether counsel’s assistance was reasonable
                considering all the circumstances. . . . No particular set of detailed
                rules for counsel’s conduct can satisfactorily take account of the
                variety of circumstances faced by defense counsel or the range of
                legitimate decisions regarding how best to represent a criminal
                defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

         As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).



                                                  -24-
        Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

        By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of
proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-
210(f) (1997). A petition based on ineffective assistance of counsel is a single ground for relief,
therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-
206(d) (1997).

        The procedure which we follow in our review was explained in detail by our supreme court
in State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001):

                         The issue whether a petitioner has been denied the effective
                assistance of counsel is a mixed question of law and fact. State v.
                Burns, 6 S.W.3d 453, 461 (Tenn. 1999). A trial court's findings of
                fact are entitled to substantial deference on appeal unless the evidence
                preponderates against those findings. See Henley v. State, 960
                S.W.2d 572, 579 (Tenn. 1997). Under this standard, appellate courts
                do not substitute their own inferences for those drawn by the trial
                court, and questions concerning the credibility of the witnesses, the
                weight and value to be given their testimony, and the factual issues
                raised by the evidence are to be resolved by the trial judge. Henley,
                960 S.W.2d at 579. However, this Court reviews de novo the
                application of law to those factual findings to determine whether
                counsel's performance was deficient or whether the defendant was
                prejudiced by that deficiency. Thus, when evaluating a claim of
                ineffective assistance of counsel, we review the trial court's findings
                of fact under a de novo standard, accompanied by a presumption that
                the findings are correct unless the preponderance of the evidence
                suggests otherwise, while the trial court's conclusions of law are
                reviewed de novo with no presumption of correctness. Fields v.
                State, 40 S.W.3d 450, 457-58 (Tenn. 2001).

                        B. Ineffective Assistance of Counsel at 1986 Trial

        The petitioner alleges that trial counsel were ineffective in failing to interview and effectively
cross-examine Ken Jones, to object to Sheriff Weakley’s participating in the voir dire of prospective
jurors, to discover impeachment evidence, and were ineffective as well because of their lack of
experience and resources. We will review these claims.




                                                  -25-
              1. Failure to Interview and Effectively Cross-Examine Ken Jones

         The petitioner argues that trial counsel sanctioned the perjured testimony of Ken Jones at the
1986 trial and failed, at the request of Sheriff Weakley, to effectively cross-examine Jones, these
amounting to an actual conflict of interest for the trial attorneys. As we have set out, Ken Jones
acknowledged at his deposition in 1999 that he was at the CeBon Motel on the day of the murder to
rent a room to be with his paramour. However, at the petitioner’s 1986 trial, Jones had testified that
he was at the motel because he needed to use the restroom. Trial counsel Stack acknowledged that
he knew Jones was at the motel to rent a room with his paramour, but did not cross-examine him on
this fact. Sheriff Weakley did not want Jones to be embarrassed and had assured trial counsel that
Jones knew nothing about the murder.

        To support his arguments as to counsel’s limiting his cross-examination of Jones, the
petitioner relies upon State v. Thompson, 768 S.W.2d 239 (Tenn. 1989), in which our supreme court
explained the broad scope of the right to counsel:

                       Plainly, an accused is entitled to zealous representation by an
               attorney unfettered by a conflicting interest. To establish a denial of
               the sixth amendment right to counsel, it is sufficient to show that an
               actual conflict existed. If an attorney actively represents conflicting
               interests, no analysis of prejudice is necessary; it is presumed that his
               divided interests adversely affected his representation.

Id. at 245 (citations omitted). The petitioner argues that trial counsel had an actual conflict of
interest and, therefore, the second prong of the Strickland test, requiring a showing of prejudice, is
eliminated, the petitioner contending that “an actual conflict or an apparent conflict may exist
anytime a lawyer cannot exercise his or her independent professional judgment free of
‘compromising influences and loyalties.’” State v. Culbreath, 30 S.W.3d 309, 315 (Tenn. 2000)
(citing State v. Tate, 925 S.W.2d 548, 554 (Tenn. Crim. App. 1995)). Additionally, the petitioner
argues that “[w]hen the fairness of a trial is compromised by an actual conflict of interest, the
conclusion that finding that trial counsel’s performance, per se, deprived the defendant to his right
to a fair trial is not subject to ‘harmless error analysis.’”

        As to these arguments, the State responds that any agreement between Sheriff Weakley and
trial counsel not to question Ken Jones about his reason for being at the CeBon Motel did not
constitute an actual conflict and, thus, cannot warrant a presumption of prejudice. The petitioner
disputes this analysis, citing Rule 1.7(b) of the Rules of Professional Conduct which provides:

                        A lawyer shall not represent a client if the representation of
               that client may be materially limited by the lawyer’s responsibilities
               to another client or to a third person, or by the lawyer’s own interests,
               unless:



                                                 -26-
                          (1) The lawyer reasonably believes the representation will not
                   be adversely affected; and
                          (2) The client consents in writing after consultation[.]

Tenn. Sup. Ct. R. 8, RPC 1.7(b) (2003).1 The petitioner notes that the disciplinary rule that was in
effect in 1986 provided that “[a] lawyer shall decline proffered employment . . . if it would likely
involve the lawyer representing differing interests.” He responds to the State’s contention that
prejudice was not shown by arguing that all he has to do is “undermine confidence in the outcome
of the trial.” See Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490
(1995). To support his argument in this regard, the petitioner cites Jones v. Kentucky, 97 F.2d 335
(6th Cir. 1938), where the court determined that the conviction of the defendant was based in part
on perjury as follows:

                   that “the fundamental conceptions of justice which lie at the base of
                   our civil and political institutions” must with equal abhorrence
                   condemn as a travesty a conviction upon perjured testimony if later,
                   but fortunately not too late, its falseness is discovered, and that the
                   state in the one case as in the other is required to afford a corrective
                   judicial process to remedy the alleged wrong, if constitutional rights
                   are not to be impaired.

Id. at 338.

        This court has explained the showing which must be made to establish that counsel had a
conflict of interest:

                   An actual conflict of interest is usually defined in the context of one
                   attorney representing two or more parties with divergent interests. An
                   actual conflict of interest occurs when "regard for one duty tends to
                   lead to [the] disregard of another." State v. Reddick, 230 Neb. 218,
                   222, 430 N.W.2d 542, 545 (1988); see Gardner v. Nashville Housing
                   Authority, 514 F.2d 38 (6th Cir. 1975). In Ford v. Ford, the court
                   declared a conflict of interest when an "attorney was placed in a
                   position of divided loyalties." 749 F.2d 681, 682 (11th Cir. 1985).

                             The right to counsel requires complete devotion to the interest
                   of the defendant. State v. Knight, 770 S.W.2d 771 (Tenn. Crim. App.
                   1988). When counsel is unable to provide a "zealous representation
                   . . . unfettered by conflicting interests," there has been a breach of the
                   right to the effective assistance of counsel. State v. Thompson, 768


         1
           As the petitioner notes in his brief, this rule is a part of the new Rules of Professional Conduct that came into
effect in March 2003.

                                                           -27-
               S.W.2d 239 (Tenn. 1989). In Cuyler v. Sullivan, the United States
               Supreme Court held that because there is a breach of loyalty in cases
               involving a conflict of interest, prejudice is presumed. 446 U.S. 335,
               100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). Unless the petitioner can
               establish that his counsel "actively represented conflicting interests,"
               he can not established [sic] the constitutional predicate for his claim.
               Id. at 350. To establish a claim based upon conflict of interests, the
               conflict must be actual and significant, not irrelevant or "merely
               hypothetical." Howard Clifton Kirby v. State, No.
               03C01-9303-CR-00074 (Tenn. Crim. App., at Knoxville, Sept. 28,
               1994).

Jesse Jameel Dawan v. State, No. W2001-00792-CCA-R3-CD, 2002 WL 1483210, at *2 (Tenn.
Crim. App. Mar. 11, 2002), perm. to appeal denied (Tenn. Sept. 23, 2002).

        The petitioner argues that because the attorneys allowed Mr. Jones to testify falsely at the
1986 trial and agreed not to question Mr. Jones about why he was present at the CeBon Motel on the
day of the murder, his trial was not a true adversarial proceeding and that, by not investigating, his
attorneys missed an opportunity to develop and present additional defense theories.

       The Eighth Circuit explained the limited circumstances in which prejudice may be presumed:

                       We believe there is much to be said in favor of holding that
               Cuyler’s [Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708 (1980)]
               rationale favoring the “almost per se rule of prejudice” does not apply
               outside the context of a conflict between codefendants or serial
               defendants. As Strickland explained, some finding of prejudice is an
               essential factor in proving ineffective assistance of counsel. Under
               Cuyler, loyalties divided between codefendants necessarily will infect
               the very core of at least one’s defense, and prejudice should be
               presumed. However, the same impact will not be found automatically
               in other conflict situations. The latter may have such limited
               consequences that they will not invariably demonstrate prejudice and
               “a denial of the ‘right to have the effective assistance of counsel.’”
               Cuyler, 446 U.S. at 349, 100 S. Ct. 1708 (quoting Glasser [v. United
               States], 315 U.S. [60], 76, 62 S. Ct. 457 [(1942)]. In those cases,
               sound reasoning supports requiring a defendant to prove actual
               prejudice under the Strickland standard in order to meet the
               constitutional standard for ineffective assistance of counsel.

Caban v. United States, 281 F.3d 778, 782 (8th Cir. 2002).




                                                -28-
        While trial counsel did not question Ken Jones as to why he was at the motel, this fact does
not result in their representing the interests of Sheriff Weakley. Accordingly, to prevail on this
claim, the petitioner must establish that he was prejudiced by trial counsel’s not ascertaining and
cross-examining Ken Jones’s true reason for being at the motel, thus depriving the jurors of this
knowledge in addition to missing the opportunity to cross-examine Vernedith White. We will
review this argument along with the related claim, made at oral argument, that trial counsel could
have created residual doubt by properly dealing with Ken Jones.

        In his reply brief, the petitioner points to various portions of the testimony to establish that
Ken Jones, himself, might have killed the victim. The petitioner explains how he might have gotten
the keys to the victim’s car without confronting her, surmising “because of the warmth on the day
at issue, [the victim] was wearing only a very light weight summer shift” and that her maid’s coat,
where she kept her keys and wallet, “was most likely hanging on the cleaning cart, which gave [the
petitioner] easy access.” The petitioner argues that the statements of Jones and White that they
neither saw nor heard anything “that was connected with the crime” are “unbelievable.” The
victim’s schedule to clean the rooms, the petitioner asserts, was such that she would not have
reached room 21, where she was killed, until “noon,” resulting in Jones and White at least seeing her.
The petitioner notes that, at the 1986 trial, Jones said he did not know whether the victim was male
or female, yet he told Maxey Kittrell, another witness, that “a woman had been stabbed” and told
White that “there was a dead woman in there.” This testimony, according to the petitioner’s
argument, demonstrates “knowledge that no one but the perpetrator could have known.” The
petitioner points to other discrepancies, including Jones’s testimony that the “randomly selected key”
which he picked up “just happened to open the lock on room 21, the murder room”; and the fact that
White testified that she and Jones were at the motel from 9:00 am until the emergency call, which
was made at 2:36 p.m., leaves two hours of Jones and White’s activities “unaccounted for.” This
time period, according to the petitioner’s theory, allowed Jones to drive White to Dickson and “to
cleanse himself and his van of the victim’s blood.” The petitioner surmises that Jones then returned
to the motel to determine whether the motel owners had come back and found the body, and
discovered that this had not occurred. Finally, according to this argument, “by belatedly announcing
that a woman had been stabbed to death, Jones successfully removed himself as a suspect and
thereby, with the help of his friend the sheriff, was able to keep himself from being investigated by
the defense and by the prosecution.”

       The post-conviction court concluded that the petitioner would not have benefitted from the
claim that Ken Jones had killed the victim:

                       Petitioner insists that his trial counsel should have attempted
               to cast suspicion upon Ken Jones as a possible perpetrator of the
               crime and that counsel was ineffective in allowing Mr. Jones to
               “perjure” himself in hiding his true reason for being at the hotel.
               While counsel had brought out that there had been another stranger
               in the area of the CeBon Motel that morning, they did not develop
               any reason for the jury to consider that someone other than Petitioner


                                                 -29-
               committed the offense. Petitioner asserts that his trial counsel should
               have suggested that perhaps, Ms. Jenkins had thwarted Mr. Jones[’s]
               planned sexual liaison with Ms. White and that this was a motive to
               kill her. He further suggests that their theory might explain the
               twenty dollar bill under Ms. Jenkins’s watch band [sic] and the
               careful insertion of the knife into her vagina. Trial counsel knew of
               the actual reason for Mr. Jones[’s] presence at the motel, having
               learned it from the sheriff. Of course, they could have investigated
               further and learned the details of the encounter but the Court does not
               find that the information would have been particularly useful. To
               present such a farfetched theory with no supporting evidence would
               cause a loss of credibility by the defense at trial. Admittedly, if trial
               counsel had learned the exact details of the movements of Mr. Jones,
               Ms. White and the person(s) in the maroon or brown car, they could
               have “muddied the water” concerning the details of the discovery of
               the body. This would have been insufficient, however, to cast
               reasonable doubt on the guilt of Petitioner given the fact that
               Petitioner was shown by the proof to have taken the deceased’s car
               keys, presumably from her billfold (in which she habitually kept
               them), and stolen her car. To accept Petitioner’s argument that he
               didn’t kill the deceased but merely took her car keys from her body
               (which was wrapped in a blanket) and stole her car would require the
               trial jury to depart from speculation and enter into fantasy.

        Missing in the petitioner’s theory, which the post-conviction court described as “farfetched,”
is any motive or reason why Jones would want to kill the victim, except the petitioner’s suggestion,
recounted in the post-conviction’s findings, that the victim was killed because she had “thwarted”
the sexual liaison between Jones and White. In effect, the petitioner argues that fifty-one-year-old
Ken Jones, accompanied by his twenty-one-year-old girlfriend, Vernedith White, following their
normal Sunday morning routine and checking into the same motel where they had been together
approximately 100 times before and were known by the staff, including the victim, stabbed the
victim to death, with Jones driving White to another location, cleaning blood from himself and his
vehicle, and then returning to the scene to report the crime and wait for law enforcement officers to
arrive. We agree with the post-conviction court that, given the strength of proof against the
petitioner, making the argument that Ken Jones was the actual killer would have been “farfetched”
and could have resulted in a loss of credibility for the defense.

        As our supreme court explained in State v. McKinney, 74 S.W.3d 291 (Tenn. 2002),
“‘[r]esidual doubt evidence,’ in general, may consist of proof admitted during the sentencing phase
that indicates the defendant did not commit the offense, notwithstanding the jury's verdict following
the guilt phase.” Id. at 307 (citing State v. Hartman, 42 S.W.3d 44, 55-56 (Tenn. 2001)). Residual
evidence may be that which relates “‘to the circumstances of the crime or the aggravating or



                                                 -30-
mitigating circumstances, including evidence which may mitigate [the defendant’s] culpability.’”
Hartman, 42 S.W.3d at 56 (quoting State v. Teague, 897 S.W.2d 248, 256 (Tenn. 1995)).

        We previously have set out the evidence that the petitioner argues could have been used to
establish residual doubt, consisting primarily of contrasting testimony from the jury proceedings in
1986 and 1989 and that of Vernedith White at the post-conviction hearing. Asked at the post-
conviction hearing about the significance of this testimony, one of petitioner’s trial counsel
responded to post-conviction counsel: “To be honest with you at this point and time I don’t
remember putting all of these time periods together as you are, as you have done right now.” Thus,
most of the information relied upon by post-conviction counsel was before the jury but was not
utilized, as post-conviction counsel has done, to make it appear that Ken Jones might have been the
perpetrator. The petitioner argues that, had Vernedith White testified in 1986 or 1989, her
“eyewitness information . . . very well could have created reasonable doubt in the minds of the jurors
and changed the outcome of the trial.” We respectfully disagree with this assertion because White
said that Jones was not in the motel room long enough to have killed the victim. Thus, White’s
testimony would not help the petitioner unless the jurors believed her as to the various times of the
events so as to make it appear that Jones could have been the killer, but disbelieved her when she
said that Jones could not have killed the victim. While Jones was not truthful in his trial testimony,
and its acceptance by trial counsel prevented White from being identified as a witness, their true
purpose for being at the hotel would appear to be irrelevant to the guilt, innocence, or punishment
of the petitioner. Thus, we concur with the post-conviction court’s determination that the petitioner
was not harmed by the fact that trial counsel neither discovered Ken Jones’s true purpose for being
at the motel nor that Vernedith White was with him. See State v. Austin, 87 S.W.3d 447, 459 (Tenn.
2002) (while trial court erred in excluding from evidence vice squad report which may have
identified other persons with motive to kill the victim, the “essence” of the report was put before the
jury during cross-examination of a witness, so the error was harmless). We conclude, further, that
the petitioner would not have created residual doubt by arguing that Ken Jones had killed the victim.

             2. Failure to Object to Sheriff Weakley’s Participation in Voir Dire

        The petitioner argues he was prejudiced by the facts that Sheriff Weakley was involved in
the voir dire and, because he participated in the investigation, testified at the trial, and “[s]urely . .
. possessed an opinion as to [the petitioner’s] guilt before the trial and there [was] a great potential
for the sheriff to hand-pick jurors sympathetic to the prosecution.” Additionally, the petitioner
argues that “a jury could easily associate with the credibility of the sheriff who testified against [the
petitioner].” Thus, according to the petitioner, he “was denied due process and a trial by a fair jury.”
The State responds that, as to this argument, the petitioner included no citations to the record
required by Rule 10(b) of this court, which would demonstrate the degree of participation by Sheriff
Weakley in the jury selection process. Additionally, the State argues that this issue has been waived
because no proof was presented as to it during the hearing on the post-conviction petition. We agree
with the State’s arguments and conclude that this claim has been waived.




                                                  -31-
                          3. Failure to Discover Impeachment Evidence

        The petitioner contends that trial counsel were ineffective by failing to discover impeachment
evidence that State’s witness Daniel Blair, on the day that he had given the petitioner a ride, was on
felony probation for theft of livestock; that State’s witness Victoria Hines Daniel Furlong was an
alcoholic and had been drinking the day she supposedly saw blood on the petitioner’s shirt; that
State’s witness Ernest Daniel also was an alcoholic and had not testified completely truthfully about
Furlong’s drinking; and that Melanie Chandler would have contradicted her mother’s testimony that
the petitioner carried a knife which he had been seen sharpening. We will consider these claims.

        As to Daniel Blair, trial counsel acknowledged that they did not investigate his criminal
history. The petitioner submits that the combination of the impeachment evidence of Blair’s felony,
coupled with discrediting his testimony that he saw blood on the petitioner’s shirt on the day of the
murder, would have affected his credibility. The State argues that Blair’s being on probation made
him more credible because, in admitting that he had been in Tennessee, he admitted also that he had
violated his probation. The post-conviction court found that effectively impeaching this witness
would have been unlikely. We agree the petitioner’s claim is speculative that Blair successfully
could have been impeached with this additional information and conclude, accordingly, that the
record supports the post-conviction court’s determination.

        The petitioner also contends that trial counsel were ineffective in failing to discover that
Victoria Hines Daniel Furlong was an alcoholic and had been drinking on the day she testified at the
petitioner’s trial. At the post-conviction proceeding, she contradicted much of her prior testimony,
as we have previously set out. The post-conviction court rejected Furlong’s entire testimony as
“incredible and worthless.” The record supports this determination.

         Additionally, the petitioner contends that counsel were ineffective for failing to discover that
Ernest Daniel, Victoria Furlong’s husband at the time of the petitioner’s trial, was not truthful
regarding the amount and extent of his wife’s drinking. The post-conviction court found Daniel to
be in contempt of court at the post-conviction proceeding because he had been drinking prior to
testifying. The court found the only fact that it could determine with respect to Daniel’s and
Furlong’s testimony was that they each lied under oath at either the trial or the post-conviction
hearing. Given this fact, the court determined that interviewing either of these witnesses would not
have benefitted counsel in impeaching them at trial. The record supports this conclusion.

        Counsel testified that they did not interview Melanie Chandler or Virginia Chandler prior to
trial. Melanie Chandler testified at the hearing that her mother had animosity toward the petitioner
and drank heavily. Melanie Chandler admitted that she was not on good terms with her mother. The
post-conviction court noted that Chandler “glance[d] affectionately” at the petitioner during the
hearing, making it obvious that she still had feelings for him. In conclusion, the court found that the
impeachment value of Melanie Chandler’s testimony was “marginal, at best.” We concur with this
assessment. Accordingly, as to this claim, we agree with the conclusion of the post-conviction court
that the petitioner failed to establish prejudice.


                                                  -32-
                        4. Lack of Experience and Resources of Counsel

        The petitioner contends both that his counsel were too inexperienced to try a capital case and
failed to represent him zealously because the compensation provided appointed attorneys was too
low. The court determined that these arguments were without merit, and the record supports this
conclusion. We have previously held that inexperience of counsel alone does not equate to
ineffective assistance of counsel. Anthony J. Robinson v. State, No. 02C01-9707-CR-00275, 1998
WL 538566, at *2 (Tenn. Crim. App. Aug. 26, 1998). Additionally, the argument that the State’s
compensation of appointed counsel contributed to the ineffectiveness of counsel has been rejected
by this court. See Henry Eugene Hodges v. State, No. M1999-00516-CCA-R3-PD, 2000 WL
1562865, at **21-22 (Tenn. Crim. App. Oct. 20, 2000), perm. to appeal denied (Tenn. Mar. 26,
2001).

                  C. Ineffective Assistance of Counsel at 1989 Resentencing

        As to this proceeding, the petitioner argues that counsel were ineffective in failing to
investigate his background and present effective mitigation proof; failing to challenge the heinous,
atrocious, and cruel aggravating circumstance; and failing to give a closing argument. We will
consider these claims.

                                        1. Mitigation Proof

                             a. Family Background/Proof of Abuse

        In its opinion affirming the 1989 resentencing of the petitioner, our supreme court set out the
mitigation evidence presented in his behalf:

                        In mitigation, the defendant presented proof that, while in
               prison on this conviction, he had presented no serious disciplinary
               problems and posed no threat to the prison population. The defendant
               also presented proof of a troubled childhood. His father had
               abandoned the family when the defendant was young. His mother
               had an alcohol problem. In his teens the defendant became involved
               in sniffing gasoline and glue and began to abuse alcohol and drugs.
               He also exhibited self-destructive behavior. Dr. Pamela Auble, a
               clinical psychologist, testified that the defendant was suffering from
               a paranoid personality disorder and dysthymia, or chronic depression.
               According to Dr. Auble, the defendant would suppress his feelings
               until they "boiled up" under stress. In her opinion, the defendant,
               who had returned from turbulent visits with his parents and girlfriend
               shortly before he committed the murder, was under stress when he
               killed the victim. Dr. Ann Marie Charvat, a sociologist, also testified



                                                 -33-
                about the damaging effect of the circumstances of his childhood on
                the defendant.

 Hines, 919 S.W.2d at 577. The supreme court characterized the petitioner’s mitigation proof as
“extensive.” Id. at 584.

        The petitioner argues that counsel should have called his family members to testify regarding
the physical, sexual, and emotional abuse he suffered. Counsel did not call family members as
witnesses at resentencing, presenting mitigation proof of the petitioner’s abuse through two experts.
The petitioner further contends that additional experts should have been employed, and additional
proof regarding his treatment at Green River Boys Camp should have been presented. The post-
conviction court noted that the detailed mitigation evidence presented at the post-conviction hearing
was prepared by two attorneys, three investigators, and several medical experts over a three-year
period, stating that that period of time was “far in excess of the time which would have been allowed
to prepare for even a capital trial.” The court found the additional mitigation proof of the petitioner’s
family background and abuse, presented at the post-conviction hearing, was essentially the same as
that presented at the resentencing, simply more in-depth. Accordingly, the court determined that
even with the additional mitigation proof, the aggravating circumstances would have continued to
outweigh the mitigating circumstances.

        This court has stated that “[a]n investigation so inadequate as to fail to formulate an ‘accurate
life profile’ of the defendant may be the basis for post-conviction relief. Yet the extent of
investigation required is largely dependent upon information supplied by the defendant.” Bates v.
State, 973 S.W.2d 615, 633 (Tenn. Crim. App. 1997) (citing Jackson v. Herring, 42 F.3d 1350, 1367
(11th Cir. 1995); Burger v. Kemp, 483 U.S. 776, 795, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987)).

         In Goad v. State, 938 S.W.2d 363 (Tenn. 1996), our supreme court set out the relevant factors
to consider when determining if prejudice had resulted from a trial attorney’s failure to present
mitigating evidence during the penalty phase of a capital trial. There, the court found that counsel’s
failure to investigate, explore, and prepare the proposed mitigating evidence was not “‘the result of
reasonable professional judgment’ and ‘fell outside the wide range of professionally competent
assistance.’” Id. at 371. If counsel’s performance is deficient, the court must next determine if the
petitioner has discharged the duty of proving that prejudice resulted from counsel’s performance.
Id. The court explained how this determination is made:

                [If the] alleged prejudice under Strickland involves counsel's failure
                to present mitigating evidence in the penalty phase of a capital trial,
                several factors are significant. First, courts have analyzed the nature
                and extent of the mitigating evidence that was available but not
                presented. Second, courts have considered whether substantially
                similar mitigating evidence was presented to the jury in either the
                guilt or penalty phase of the proceedings. Finally, the courts have
                considered whether there was such strong evidence of aggravating


                                                  -34-
                   factors that the mitigating evidence would not have affected the jury's
                   determination.

Id. (citations omitted).

        In the present appeal, the post-conviction court found that counsel were not deficient in their
representation of the petitioner, saying that “[i]n view of the overwhelming strength of the
aggravating factors in Petitioner’s case . . . the mitigating factors would not have affected the jury’s
determination. The jury would be required by logic and common sense to find that the aggravating
circumstances outweighed the effect of the mitigating factors beyond a reasonable doubt.”
Accordingly, under the principles enunciated in Goad, the post-conviction court found that the
petitioner was not prejudiced by the fact that counsel at the sentencing hearing had not presented
mitigating evidence in the detail that was done at the post-conviction hearing. We conclude that the
record supports this determination.2

                                                b. Serotonin Defense

       The petitioner contends that resentencing counsel were ineffective for failing to present
evidence of his serotonin deficiency. As to this claim, the post-conviction court determined that,
based upon the testimony of the witnesses at the hearing, the serotonin evidence was not reasonably
available to the petitioner’s resentencing counsel, since it was not known to them and could not have
been discovered by the exercise of reasonable diligence.

        Dr. Rossby acknowledged that he did not work on developing this issue in a criminal case
until approximately 1992, three years after the petitioner’s resentencing trial. Further, he said that
he did not actually testify on the issue of serotonin until 1999, ten years after the petitioner’s
resentencing trial, and he knew of no one who had testified on this issue prior to that. As the post-
conviction court stated: “Petitioner’s counsel at re-sentencing could not reasonably have been
expected to search for experts on a subject which they did not know existed.” The record supports
this conclusion.


         2
             As supplemental authority, the petitioner relies on W iggins v. Smith, 539 U.S. 510, 516, 123 S. Ct. 2527, 2532,
156 L. Ed. 2d 471 (2003), where the petitioner had sought post-conviction relief from his capital conviction, alleging
that trial counsel “had rendered constitutionally defective assistance by failing to investigate and present mitigating
evidence of his dysfunctional background.” Trial counsel utilized the defense that another person had killed the victim
and did not present evidence they had showing the petitioner’s “limited intellectual capacities and childlike emotional
state . . . and the absence of aggressive patterns in his behavior, his capacity for empathy, and his desire to function in
the world[.]” Id. Counsel elected not to use specific information that the petitioner and his siblings were left “home
alone for days, forcing them to beg for food and to eat paint chips and garbage,” and that he had been “gang-raped” on
more than one occasion. Id., 539 U.S. at 516-17, 123 S. Ct. at 2533. The court determined that trial counsel’s decision
not to utilize background information was one which “did not reflect reasonable professional judgment” and that the
petitioner had been prejudiced as a result, there being a reasonable probability that the jury would have returned with
a different sentence, had they known this information. Id., 539 U.S. at 534, 123 S. Ct. at 2541-42. In the present appeal,
trial counsel presented substantial evidence at the sentencing hearing, although not to the extent that was done at the post-
conviction hearing. We find that W iggins is not applicable.

                                                           -35-
                 c. Heinous, Atrocious, and Cruel Aggravating Circumstance

         The petitioner argues that counsel were ineffective at resentencing because they did not
challenge the testimony of Dr. Charles Harlan regarding the length of time the victim was conscious
and could have lived or experienced pain following the stabbing. At resentencing, the petitioner
offered the testimony of Dr. Chris Sperry who disagreed with Dr. Harlan’s testimony regarding the
victim’s consciousness and amount of time she could have survived following the wound to the
heart. Dr. Sperry opined that the victim would have been conscious only fifteen to thirty seconds
following the stab wound to the heart, as opposed to Dr. Harlan’s testimony that the victim lived four
to five minutes following the wound to the heart and would have been conscious approximately 80%
of that time.

        The post-conviction court found counsel were deficient in failing to investigate and introduce
testimony to refute Dr. Harlan’s conclusions, determining, however, that the petitioner was not
prejudiced by the lack of such testimony. The court found that the jury would have been much more
persuaded by the testimony of the pathologist who performed the autopsy, as opposed to one who
drew conclusions from the autopsy report and photographs. Accordingly, the court concluded that
the testimony of Dr. Sperry would not have resulted in reasonable doubt that the victim was
conscious during the apparently final wound to the vagina, both pathologists concluding that this
wound occurred at or shortly after the time of death. Moreover, the court determined that even if the
jury did have reasonable doubt in this regard and did not find this aggravating factor applied, the
remaining two aggravating factors were still strong enough to outweigh the mitigating factors as
presented at the post-conviction hearing.

        As to this issue, the State also argued that even if the victim were unconscious at the time the
vaginal wound was inflicted, the jury could have found that the nature and infliction of that wound
constituted depravity of mind and that the depraved state of mind of the petitioner existed at the time
the fatal blows were inflicted upon the victim. Our supreme court has held that depravity of mind
of the murderer may be inferred from acts committed at or shortly after the time of death. See State
v. Williams, 690 S.W.2d 517, 529-30 (Tenn. 1985). The court explained that the nature of injuries
to a victim may constitute depravity of mind under the holding in Williams:

               The willful insertion of a sharp instrument into the vaginal cavity of
               a dying woman (or a woman who had just died) satisfies the
               requirements of Williams, supra. If committed prior to death, these
               acts constitute torture and thereby also support a finding of depravity.
               If they occurred close in time to the victim's death, they allow the
               drawing of an inference of the depraved state of mind of the murderer
               at the time the fatal blows were inflicted on the victim.

Hines, 919 S.W.2d at 581. We conclude that the record supports the findings of the post-conviction
court as to this issue.


                                                 -36-
                                        d. Closing Argument

        The petitioner contends that his counsel were ineffective in not making a closing argument
at resentencing. As to this claim, all three of the petitioner’s resentencing counsel testified that their
decision to waive closing argument was based on the fact that they did not want the State to present
a rebuttal argument. The law is clear that this court may not second-guess the tactical and strategic
choices made by trial counsel unless those choices were uninformed because of inadequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see also Bell v. Cone, 535 U.S. 685,
122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002); State v. Menn, 668 S.W.2d 671, 673 (Tenn. Crim. App.
1984). The post-conviction court concluded that trial counsel had made a tactical decision to waive
closing argument to prevent the State’s then being able to make a strong rebuttal argument. The
record supports this conclusion.

                            e. Assistance of Counsel on Direct Appeal

        The petitioner also contends that his appellate counsel were ineffective in failing to challenge
the constitutionality of the jury instructions at his 1986 trial. He did not present evidence of this
issue at the post-conviction hearing, and the post-conviction court did not address it in its order.
Moreover, the petitioner did not cite to the record or to any legal authority in making this skeletal
argument. Accordingly, this issue is waived. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R.
10(b).

          D. Underrepresentation of Women in the Cheatham County Jury Venire

        The petitioner contends that there was an underrepresentation of women in the Cheatham
County jury venire from which his petit jury was chosen. Because this issue was not presented on
direct appeal, it has been waived. Tenn. Code Ann. § 40-30-206(g). Post-conviction proceedings
may not be used as a substitute for an appeal to review or correct errors of fact or law allegedly
committed by a court of competent jurisdiction. State v. McClintock, 732 S.W.2d 268, 271-72
(Tenn. 1987). However, the petitioner presents this argument in the additional fashion that counsel
were ineffective in failing to challenge the composition of the jury at trial. Accordingly, we will
review this matter as a claim of ineffective assistance of counsel.

       The court noted that at the petitioner’s 1986 trial, three of the jurors were women, but there
was only one female juror at the 1989 resentencing hearing. Relying on State v. Strouth, 620 S.W.2d
467, 470 (Tenn. 1981), the post-conviction court found that there was no underrepresentation of
women on the 1986 jury. As to the 1989 resentencing, the court determined that women were
systematically excluded, but the petitioner had failed to show that he was prejudiced by the fact that
resentencing counsel did not seek to quash the venire.

       Defendants are entitled to a petit jury selected from a representative cross-section of the
community. Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). The Taylor
Court held: “the jury wheels, pools of names, panels, or venires from which juries are drawn must


                                                  -37-
not systematically exclude distinctive groups in the community and thereby fail to be reasonably
representative thereof.” Id., 419 U.S. at 538, 95 S. Ct. at 702. In Duren v. Missouri, 439 U.S. 357,
99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), the Supreme Court set forth a three-pronged test for
determining whether a jury was properly selected from a fair cross-section of the community:

               (1)     the group alleged to be excluded is a “distinctive” group in
                       the community;

               (2)     the representation of this group in venires from which juries
                       are selected is not fair and reasonable in relation to the
                       number of such persons in the community; and

               (3)     this under-representation is due to systematic exclusion of the
                       group in the jury-selection process.

Id., 439 U.S. at 364, 99 S. Ct. at 668. Based upon the report of Dr. James O’Reilly which provided
that the percentage of women in Cheatham County between 1979 and 1990 was 50.6 to 50.7% of
the population, but the percentage of women in the Cheatham County jury venire for that same time
period was between 10 and 22%, the State conceded that the first two prongs of the Duren test had
been satisfied. However, the State argues that the petitioner did not prove the third prong of the
Duren test, that the underrepresentation resulted from systematic exclusion of women in the jury
selection process.

      As to this issue, the post-conviction court found that the petitioner had made a prima facie
showing of exclusion:

               By the numerical disparity, Petitioner has established a prima facie
               case of systematic exclusion. The proof by the State that jurors were
               selected from a presumably gender balanced voter list does not
               overcome the fact of the dramatic under-representation of women. In
               fact, there is no proof which explains the disparity. There can be no
               explanation other than that the process, for whatever reason,
               systematically excluded women from Petitioner’s 1989 re-sentencing
               trial.

                      The Court finds that women were systematically excluded
               from the jury panel which sentenced Petitioner to death in the 1989
               proceeding.

       The State disagrees with this conclusion, relying on State v. Nelson, 603 S.W.2d 158 (Tenn.
Crim. App. 1980), which explained that “the courts have been reluctant to find the existence of a
prima facie case based on statistics alone, instead requiring proof of a substantial disparity coupled
with systematic exclusion.” Id. at 163 n.3. The Nelson court determined that the systematic


                                                -38-
exclusion prong of the test had been established by proof that the statistical disparity occurred not
just occasionally but in every venire for a period of four years, explaining that “[s]uch evidence
‘manifestly indicates that the cause of the underrepresentation was systematic that is, inherent in the
particular jury-selection system utilized.’” Id. at 165 (quoting Duren, 439 U.S. at 366, 99 S. Ct. at
669). Thus, the court in Nelson found that the jury selection process had not been carried out in
conformity with the statutory requirements and explained the proper method of selecting the venire:

               [U]tilization of wholly subjective criteria in a selection process such
               as Tennessee's will invite a challenge to the array whenever it appears
               to produce jury venires that are not representative of the community
               at large. This problem could be avoided by utilization of a random
               selection or "key number" system, which is in use in many areas of
               Tennessee, as well as most other states and the federal system. Use of
               a "key number" applied to county registration lists which are
               reflective of a cross-section of the community may occasionally
               produce a venire which appears to underrepresent some identifiable
               group in the community. However, when an objective selection
               criterion of this nature is used, such an underrepresentation can be
               shown to be the result of mischance rather than the deliberate,
               systematic exclusion of any group.

Id. at 167 (citations and footnote omitted).

        We respectfully disagree with the post-conviction court’s finding that the underrepresentation
of women compels the conclusion that women were systematically excluded from the venire. While
the petitioner argues on appeal that “the state offer[ed] no plausible explanation” for the disparity
and, therefore, he is entitled, as matter of law, to prevail, we disagree with this claim. In fact,
substantial proof is in the record as to how the panel of prospective jurors was selected; and neither
the petitioner nor the post-conviction court has identified illegalities or deficiencies in the process.
Rather, both simply relied upon percentages of women called to jury duty to conclude that women
had been systematically excluded. In Truesdale v. Moore, 142 F.3d 749, 755 (4th Cir. 1998), the
court explained that a statistical disparity does not, by itself, establish systematic exclusion of a
group from the jury pool:

               Truesdale has not advanced any direct evidence of "systematic
               exclusion" of African Americans from the venire. Instead he seeks
               to rely on the bare assertion of substantial underrepresentation to
               prove that there was a structural or systemic impediment to voter
               registration by African Americans. We have consistently required
               more to make out a violation of the "fair cross-section" guarantee. .
               . . To allow Truesdale to substitute evidence of substantial
               underrepresentation for evidence of systematic exclusion would go a
               long way towards requiring perfect statistical correspondence


                                                 -39-
                between racial percentages in the venire and those in the community.
                Such a rule would exalt racial proportionality over neutral jury
                selection procedure.

       Accordingly, we conclude that the post-conviction court erred in finding that women had
been systematically excluded from the venire.

        Regarding this issue as a post-conviction claim, the petitioner must prove that his counsel
were ineffective under Strickland because counsel did not challenge the jury venire at trial and/or
resentencing. Attorney Stack testified that he had no reason to suspect that women were
underrepresented in the jury venire in 1986, and, in fact, three women were on the petitioner’s 1986
jury. Moreover, counsel testified that they did not use all of their peremptory challenges at the 1986
trial. Our supreme court has found that the presence of three women on the petit jury constitutes a
“fair representation of women on the jury and that is all that is required by the Constitution of the
United States.” Strouth, 620 S.W.2d at 470. The record supports the post-conviction court’s finding
that the petitioner was not prejudiced because counsel did not challenge the 1986 venire.

        With respect to the 1989 resentencing, Attorneys Weems and Stack testified that they
considered challenging the jury venire but knew to do so would cost a vast amount of time. The
State argues that counsel were not deficient “to forgo the preparation of a time-consuming jury
challenge in favor of developing further mitigating proof, which could spare [their] client the death
penalty. All defense attorneys must use their discretion to decide how best to use the time given to
them to prepare the defense.” The State argues that such decisions are strategic in nature and should
not be second-guessed by this court. As to this issue, the post-conviction court found that the
petitioner had failed to establish that he was prejudiced by counsel’s decision not to challenge the
venire. Testimony of the petitioner’s 1989 counsel was that this was a strategic decision made in
an effort to best utilize the time which they had for trial preparation. Based upon the testimony
regarding this issue, the record supports the determination of the post-conviction court that the
petitioner failed to show that he was prejudiced because counsel did not seek to quash the 1989 jury.

         The petitioner further contends that the post-conviction court erred in ignoring his claims that
the grand jury forepersons were selected separately by the judge and the two forepersons, serving
from 1979 to 1990, both were male. We note that the only proof as to this claim consisted of short
portions of the testimony of Delores Moulton and Lloyd Harris. The petitioner’s counsel were not
questioned as to the matter, and we have been unable to locate in the petitioner’s ninety-six-page
proposed findings of fact and conclusions of law, filed after completion of the hearings, a reference
that a claim had been presented and the post-conviction court was to rule on the foreperson selection
process. Thus, we cannot conclude that this claim was presented to the post-conviction court




                                                  -40-
separately and not simply as additional information in support of the petitioner’s jury claim which
we have reviewed. Accordingly, the claim is waived.3

                   E. Apprendi v. New Jersey and Ring v. Arizona Arguments

        The petitioner argues that his death sentence is invalid under the principles set forth in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Ring v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), making two basic arguments:
(1) the Tennessee Supreme Court substituted its judgment for that of the jury when it determined that
it was harmless error for the trial court to have instructed the jury with a former version of the
Tennessee Code with respect to the (i)(5) aggravating circumstance; and (2) Apprendi and Ring
require the aggravating circumstances to be set forth in the indictment, which was not done in his
case. The State responds that neither Apprendi nor Ring may be retroactively applied to the petitioner’s
case on collateral review, and neither decision extends to Tennessee’s capital sentencing procedure
or requires that aggravating circumstances be set forth in the indictment.

        This court has declined to apply Apprendi and Ring retroactively to support a request for
post-conviction relief. See, e.g., Stephen Michael West v. State, No. E2001-02520-CCA-R28-PC
(Tenn. Crim. App. Sept. 6, 2002), perm. to appeal denied (Tenn. Jan. 31, 2003); Gregory Thompson
v. State, No. M2001-02256-CCA-28M-PD (Tenn. Crim. App. Oct. 3, 2001), perm. to appeal denied
(Tenn. May 28, 2002). In so holding, this court has relied on federal cases, concluding that Apprendi
did not create a new constitutional right that is retroactively applicable. See Burch v. Corcoran, 273
F.3d 577 (4th Cir. 2001), cert. denied, 535 U.S. 1104, 122 S. Ct. 2311, 152 L. Ed. 2d 1065 (2002);
McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001), cert. denied, 536 U.S. 906, 122 S. Ct.
2362, 153 L. Ed. 2d 183 (2002); In re Clemmons, 259 F.3d 489 (6th Cir. 2001); United States v.
Moss, 252 F.3d 993, 997 (8th Cir. 2001), cert. denied, 534 U.S. 1097, 122 S. Ct. 848, 151 L. Ed. 2d
725 (2002). Thus, we conclude Apprendi and Ring should not be given retroactive application on
collateral review. Regardless, we discern no violation of Apprendi and Ring. As for the petitioner’s
argument that the ruling of the United States Supreme Court in Ring means that the holding of our
supreme court in Dellinger is no longer viable, our supreme court has concluded otherwise. State
v. Holton, 126 S.W.3d 845, 863 (Tenn. 2004) (“Ring provides no relief to the defendant and does
not invalidate this Court’s holding in Dellinger.”).

       Additionally, the petitioner argues that, at the resentencing hearing, the court “instructed the
jury using the 1989 [version of Tenn. Code Ann. § 39-2-203(i)(5)], but then found the error
harmless.” Further, according to the petitioner, “an aggravating factor, found by the 1989 re-
sentencing jury that supported the death penalty was that ‘[t]he murder was especially heinous,
atrocious or cruel in that [sic] involved torture or serious physical injury [sic] beyond that necessary

         3
          As to this issue, we note that our supreme court, in State v. Bondurant, 4 S.W .3d 662, 675 (Tenn. 1999),
explaining the holdings in Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979), and Hobby v. United
States, 468 U.S. 339, 104 S. Ct. 3093, 82 L. Ed. 2d 260 (1984), said that the method of selecting the grand jury
foreperson is relevant only as to reviewing the composition of the grand jury as a whole, the “role of the grand jury
foreperson in Tennessee [being] ministerial and administrative.”

                                                        -41-
to produce death.’” Additionally, in this regard, he argues that “[t]he Tennessee Supreme Court held
that it was error for the trial court to have instructed the jury using the 1989 language, but then found
the error harmless . . . [and] [i]n so doing, the court substituted its own judgment finding that the
evidence supported a finding of torture, and further found that had the jury been properly instructed
it would have found depravity.” As we will explain, we respectfully disagree that the petitioner has
accurately described the jury instructions or the holding of our supreme court in the direct appeal of
this matter.

        First, contrary to the petitioner’s assertions, the jury was instructed using the 1982, not the
1989, version of this statute and found, as one of the aggravating circumstances, that “the murder
was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind,”4 as
instructed by the 1982 statute, and not the language of the 1989 statute that, instead of “depravity
of mind,” involved “serious physical abuse beyond that necessary to produce death.” Accordingly,
since the jury was not instructed using the 1989 version of Tenn. Code Ann. § 39-2-203(i), our
supreme court could not determine, as argued by the petitioner, that its use was error but harmless.
Further, the petitioner’s argument that this error in instructing the jury results in there being “no way
to determine whether the jurors relied on the torture prong or the serious physical injury [sic] prong
in making its determination” is without merit. In fact, the jury could not have relied on the “serious
physical abuse” prong, for this phrase is found only in the 1989 version of the statute, which was not
used in the resentencing.

         Further, we disagree with the petitioner’s claims as to our supreme court’s findings as to
harmless error in the direct appeal of the resentencing hearing. Although he argues that the court
found “it was error for the trial court to have instructed the jury using the 1989 language, but then
found the error harmless,” this portion of the review, by our supreme court, was as to the adequacy
of the instruction for “depravity,” which had been defined by the trial court as meaning “moral
corruption; wicked or perverse act.” Hines, 919 S.W.2d at 587. Concluding “that this aggravating
circumstance has been constitutionally applied under the circumstances of this case and is not
unconstitutionally vague,” the court explained that “even if the instructions given by the trial judge
were unconstitutional . . ., the failure to give a constitutionally proper instruction on depravity was
harmless error beyond a reasonable doubt.” Id. Thus, contrary to the petitioner’s argument, instead
of finding error by the trial court which was harmless, our supreme court determined that even if the
resentencing court had committed error in this regard, the error would have been harmless. Thus,
the petitioner’s arguments that “the aggravating factor that made [the petitioner] eligible for death
in this case was found by a court and not the jury” is without merit, for it is based upon a misreading
of the opinion of our supreme court in the direct appeal of the resentencing in this matter.



         4
           In State v. Middlebrooks, 995 S.W.2d 550, 569 (Tenn. 1999), our supreme court explained that the “phrase
“depravity of mind,” in the 1982 version, was replaced with the phrase “serious physical abuse beyond that necessary
to produce death” in the 1989 version. At the resentencing hearing, the post-conviction court properly instructed the jury
using the 1982 version of Tenn. Code Ann. § 39-2-203(i), which was in effect at the time of the offenses. See id. at 556
n.6.

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         Finally, the petitioner argues that because the aggravating circumstances that resulted in his
being eligible for the death penalty were not set forth in the indictment and returned by the grand jury
as required by Apprendi, his sentence must be set aside. However, Apprendi specifically noted the
Fifth Amendment right to indictment by a grand jury has not been applied to the states under the due
process clause of the Fourteenth Amendment. Apprendi, 530 U.S. at 77 n.3, 120 S. Ct. at 2355.
Accordingly, our state supreme court’s holdings that there is no constitutional violation due to the
failure to allege the aggravating circumstances in the indictment are consistent with Apprendi. See
Holton, 126 S.W.3d at 863; State v. Carter, 114 S.W.3d 895, 910 n.4 (Tenn. 2003); State v. Dellinger,
79 S.W.3d 458, 467 (Tenn.), cert. denied, 537 U.S. 1090, 123 S. Ct. 695, 154 L. Ed. 2d 635 (2002).
This issue is without merit.

                                   F. Constitutional Arguments

         The petitioner argues that his sentence violates various provisions of the Constitutions of the
United States and the State of Tennessee and international law. As the State correctly responds,
these arguments have either been previously determined on direct appeal or were waived by the
petitioner’s failure to make the argument on direct appeal. To the extent the petitioner argues that
if an issue was not raised by prior counsel, counsel provided ineffective assistance of counsel, the
petitioner has failed to raise any constitutional claim with respect to the death penalty that has not
already been rejected by the appellate courts of this state. See, e.g., State v. Stevens, 78 S.W.3d 817,
850-52 (Tenn. 2002), cert. denied, 537 U.S. 1115, 123 S. Ct. 873, 154 L. Ed. 2d 790 (2003); State
v. Keen, 31 S.W.3d 196, 233 (Tenn. 2000), cert. denied, 532 U.S. 907, 121 S. Ct. 1233, 149 L. Ed.
2d 142 (2001); State v. Nesbit, 978 S.W.2d 872, 902 (Tenn. 1998), cert. denied, 526 U.S. 1052, 119
S. Ct. 1359, 143 L. Ed. 2d 520 (1999); State v. Vann, 976 S.W.2d 93, 117 (Tenn. 1998), cert. denied,
526 U.S. 1071, 119 S. Ct. 1467, 143 L. Ed. 2d 551 (1999); State v. Caughron, 855 S.W.2d 526, 542
(Tenn. 1993). Accordingly, an ineffective assistance of counsel claim on this issue must fail. The
petitioner’s claims on this issue are without merit.

                                        III. CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the order of the post-
conviction court denying the petition for post-conviction relief.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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