394 The University of Memphis Law Review Vol. 38

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1 394 The University of Memphis Law Review Vol. 38 APPENDIX D Tennessee Death Penalty Cases in Which Relief Was Granted in State Post-Conviction (Second Tier) (Current as of December 31, 2006) (Source: The Tennessee Justice Project) 1988: Relief granted in 1 case: 1. Raymond Eugene Teague (#13) 204 Counsel: William Redick Date of Final Relief: December 14, 1988 Invalid prior murder conviction as aggravating circumstance at sentencing: prosecution relied on a prior conviction that was later invalidated to satisfy the prior violent conviction, (i)(2), 205 aggravating circumstance (In Teague v. State, 772 S.W.2d 932 (Tenn. Crim. App. 1988), non-capital murder conviction was deemed invalid due to IAC 206 as the result of counsel s failure to properly advise client that guilty plea in that case could be used against defendant in subsequent hearing.) Teague v. State, 772 S.W.2d 915 (Tenn. Crim. App. 1988) Defendant s number from the Tennessee Death Penalty Demographic Chart. See app. C TENN. CODE ANN (i) (2006) sets forth the aggravating circumstances which will be referred to in this document by the common names and the statute section number IAC is an acronym for ineffective assistance of counsel referring to a violation of the right to counsel provided by the Sixth Amendment of the United States Constitution and Article I 9 of the Tennessee Constitution. U.S. CONST. amend. VI; TENN. CONST. art. I, 9.

2 2008 Pretend Justice : Relief granted in 2 cases: 2. Vernon Franklin Cooper (#59) Counsel: William B. Mitchell Carter and Karen Broadway Petosa Date of Final Relief: December 9, 1992 of counsel to present mental state mitigating evidence. Cooper v. State, 847 S.W.2d 521 (Tenn. Crim. App. 1992). 3. Walter Keith Johnson (#23) Counsel: Richard K. Mabee and Sam D. Elliott Date of Final Relief: September 2, 1992 of counsel to allow petitioner to testify on his own behalf. Court found IAC of original counsel at guilt and IAC of subsequent counsel at re-sentencing trial, but refused to set aside guilt verdict and remanded the case with instructions to impose a life sentence. (The Tenn. Sup. Ct. granted the prosecution s Rule 11 appeal, but without discussion, only to agree with the result and to disagree with the rationale of the CCA. See Johnson v. State, 1994 WL (Tenn. 1994)). Johnson v. State, 1992 WL (Tenn. Crim. App. Sept. 2, 1992). 1993: Relief granted in 2 cases: 4. Willie Sparks (#56) Counsel: William R. Heck Court of Final Relief: Tenn. Supreme Court Date of Final Relief: May 10, 1993

3 396 The University of Memphis Law Review Vol. 38 Middlebrooks error 207 not harmless: cruel and unusual punishment violation; jury found two aggravating circumstances: prior violent conviction, (i)(2), and felony murder, (i)(7). Massiah error: 208 right to counsel violation; police used accomplice as a police agent to elicit incriminating statements from defendant after indictment without the advice of counsel. Sparks v. State, 1993 WL (Tenn. 1993). 5. Kenneth Wayne Campbell (#32) Counsel: Ann C. Short and William S. Lockett, Jr. County: Washington Co. Date of Final Relief: April 21, 1993 IAC at sentencing; right to counsel violation; failure of counsel to present any mitigating evidence and failure to cross examine prosecution s witnesses. Middlebrooks error not harmless: cruel and unusual punishment violation; jury found two aggravating circumstances: the prior violent conviction, (i)(2), and felony murder, (i)(7), aggravating circumstance In State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), the Tennessee Supreme Court found that it is error for a jury to apply a felony murder aggravating circumstance when the defendant has been convicted of a felony not premeditated murder in violation of the cruel and unusual clause of state constitution and federal constitution because the felony murder aggravating circumstance mirrors the underlying felony murder conviction and unconstitutionally fails to narrow the class of death-eligible murderers. U.S. CONST. AMEND. VIII; TENN. CONST. art. I, 16. If the jury found that one or more other aggravating circumstances applied, other than the felony murder aggravating circumstance, then appellate court must conduct analysis to determine if the Middlebrooks error was harmless beyond a reasonable doubt. See TENN. CODE ANN (i)(7) (2006) U.S. v. Massiah, 377 U.S. 201, (1964) (holding that the Sixth Amendment right to counsel is violated when police deliberately elicit incriminating statements from a defendant after indictment and in the absence of the defendant s counsel).

4 2008 Pretend Justice 397 Inadmissible introduction of evidence of non-violent prior conviction: introduction of larceny and burglary convictions in support of prior violent conviction, (i)(2), aggravating circumstance; court did not deem this error, alone, as sufficient basis for reversal. Campbell v. State, 1993 WL (Tenn. Crim. App. Apr. 21, 1993). 1994: Relief granted in 3 cases: 6. Thomas Gerald Laney (#26) Counsel: Richard Tate and Randy Shipley County: Sullivan Co. Court of Final Relief: Sullivan County Criminal Court Date of Final Relief: November 15, 1994 Middlebrooks error: cruel and unusual punishment violation; jury found only the felony murder, (i)(7), aggravating circumstance. Laney v. State, No , Sullivan County Crim. Ct. order filed Nov. 15, 1994). 7. Carl Wayne Adkins (#15) Counsel: Debra A. Wall and Jeff Merryman County: Washington Co. Date of Final Relief: December 12, 1994 of counsel to present any mitigating evidence. Adkins v. State, 911 S.W.2d 334 (Tenn. Crim. App. 1994). 8. Ricky Goldie Smith (#46) Counsel: David Stebbins and John Oliva County: Shelby Co. Court of Final Relief: Shelby County Criminal Court Date of Final Relief: January 26, 1994

5 398 The University of Memphis Law Review Vol. 38 Middlebrooks error: cruel and unusual punishment violation; jury found only the felony murder, (i)(7), aggravating circumstance. Smith v. State, No (Shelby County Cir. order filed Jan. 26, 1994). 1995: Relief granted in 6 cases: 9. Charles Eddie Hartman (#44) Counsel: Richard McGee and John Oliva County: Montgomery Co. Court of Final Relief: Tennessee Supreme Court Date of Final Relief: March 6, 1995 Middlebrooks error was not harmless: cruel and unusual punishment violation; jury found three aggravating circumstances; heinous, atrocious or cruel, (i)(5), felony murder, (i)(7) and escaping from lawful confinement, (i)(8), aggravating circumstances. (Court found it difficult to determine that the error was not harmless due to the subjectivity of the heinous, atrocious or cruel, (i)(5), aggravator given that the trial court failed to define terms regarding aggravating circumstances within jury instructions.) Hartman v. State, 896 S.W.2d 94 (Tenn. 1995). 10. Tony Lorenzo Bobo (#60) Counsel: Susan Kay and Tim Holton County: Shelby Co. Court of Final Relief: Shelby County Criminal Court Date of Final Relief: February 15, 1995 Mental retardation claim: By agreement of the parties and approval by the post-conviction trial court, defendant was found to be mentally retarded and ineligible for death sentence pursuant to TENN. CODE ANN (1993). Bobo v. State, No. P-5222 (Shelby County Cir. Ct. order filed Feb. 15, 1995). 11. Roger Morris Bell (#74) Counsel: Leonard M. Caputo and Karen Petosa

6 2008 Pretend Justice 399 Date of Final Relief: March 15, 1995 of counsel to present evidence of mental retardation and for failure to investigate defendant s social and medical history. Bell v. State, No. 03C CR-00364, 1995 WL (Tenn. Crim. App. March 15, 1995). 12. Homer Bouldin Teel (#86) Counsel: Phil Condra County: Marion Co. Court of Final Relief: Marion County Criminal Court Date of Final Relief: February 8, 1995 of counsel to present any mitigating evidence. Teel v. State, No (Marion County Cir. order filed Feb. 8, 1995). 13. Richard Weldon Simon (#19) Counsel: N. Reese Bagwell County: Montgomery Co. Court of Final Relief: Montgomery County Criminal Court Date of Final Relief: March 24, 1995 Middlebrooks error: cruel and unusual punishment violation; jury found only the felony murder, (i)(7), aggravating circumstance. Simon v. State, No (Montgomery County Cir. Ct. order filed March 24, 1995). 14. Michael David Matson (#34) Counsel: Chuck Dupree and William Heck Court of Final Relief: Hamilton County Criminal Court Date of Final Relief: April 21, 1995

7 400 The University of Memphis Law Review Vol. 38 Middlebrooks error: cruel and unusual punishment violation; jury found only the felony murder, (i)(7), aggravating circumstance. Matson v. State, No (Hamilton County Cir. order filed April 21, 1995). 1996: Relief granted in 2 cases: 15. William Wesley Goad (#49) Counsel: Paul J. Morrow, Jr. and Louis W. Oliver, III County: Sumner Co. Court of Final Relief: Tennessee Supreme Court Date of Final Relief: December 2, 1996 of counsel to present mitigating evidence of defendant s post-traumatic stress syndrome. Goad v. State, 938 S.W.2d 363 (Tenn. 1996). 16. Rocky Lee Coker (#63) Counsel: Robert S. Peters County: Sequatchie Co. Court of Final Relief: Sequatchie County Circuit Court Date of Final Relief: April 22, 1996 of counsel to present adequate mitigating evidence. Coker v. State, No (Sequatchie County Cir. Ct. April 22, 1996). 1998: Relief granted in 3 cases: 17. Sylvester Smith (#120) Counsel: Bill Redick and Peter Heil County: Shelby Co. Date of Final Relief: December 28, 1998

8 2008 Pretend Justice 401 IAC at guilt and sentencing: right to counsel violation; failure of counsel to prepare and present evidence of defendant s incompetency, insanity and mental impairment. Smith v. State, No. 02C CR-00018, 1998 WL (Tenn. Crim. App. Dec. 28, 1998). 18. David Allen Brimmer (#115) Counsel: W. Thomas Dillard County: Anderson Co. Date of Final Relief: September 15, 1998 of counsel to present adequate mental state mitigating evidence. Brimmer v. State, 29 S.W.3d 497 (Tenn. Crim. App. 1998). 19. Randy Dwayne Hurley (#107) Counsel: John Oliva County: Cocke Co. Court of Final Relief: Cocke County Trial Court Date of Final Relief: December 7, 1998 of counsel to present mitigating evidence. Hurley v. State, No (Cocke County Cir. order filed Dec. 12, 1998). 1999: Relief granted in 4 cases: 20. Richard Carlton Taylor (#42) Counsel: Bradley A. MacLean and Sabin R. Thompson County: Hickman Co. (change of venue to Williamson Co.) Date of Final Relief: July 21, 1999 IAC at guilt and sentencing: right to counsel violation; failure of counsel to adequately prepare and present

9 402 The University of Memphis Law Review Vol. 38 defendant s mental state defenses, including evidence of his incompetency. Taylor v. State, No. 01C CC-00384, 1999 WL (Tenn. Crim. App. July 21, 1999). 21. Michael Lee McCormick (#87) Counsel: T. Maxfield Bahner and Michael E. Richardson Date of Final Relief: July 17, 1999 IAC at guilt and sentencing: right to counsel violation; failure of counsel to adequately investigate and properly impeach witnesses and to present adequate mitigating evidence. McCormick v. State, No. 03C CR-00052, 1999 WL (Tenn. Crim. App. June 17, 1999). 22. Gary June Caughron (#103) Counsel: Randall E. Reagan and Gerald L. Gulley, Jr. County: Sevier Co. Date of Final Relief: February 5, 1999 of counsel to present mitigating evidence. Caughron v. State, No. 03C CC-00301, 1999 WL (Tenn. Crim. App. Feb. 5, 1999). 23. Bobby Randall Wilcoxson (#78) Counsel: James E. Brenner and William C. Carriger Date of Final Relief: October 18, 1999 of counsel to present adequate mitigating evidence of defendant s mental illness. Wilcoxson v. State, 22 S.W.3d 289 (Tenn. Crim. App. 1999).

10 2008 Pretend Justice : Relief granted in 1 case: 24. David Scott Poe (#81) Counsel: John Oliva and Jim Simmons County: Montgomery Co. Court of Final Relief: Montgomery County Trial Court Date of Final Relief: September 6, 2000 Middlebrooks error was not harmless: cruel and unusual punishment violation; the jury found three aggravating circumstances, felony murder, (i)(7), prior violent conviction, (i)(2), and heinous, atrocious or cruel, (i)(5), aggravating circumstances. (Prosecution settled for life after felony murder, (i)(7), aggravating circumstance was invalidated.) Poe v. State, No (Montgomery County Cir. Ct. order filed Sept. 6, 2000). 2001: Relief granted in 1 case: 25. Erskine Leroy Johnson (#68) Counsel: David E. Brodsky Jonathan I. Blackman and Joseph S. Ozment County: Shelby Co. Court of Final Relief: Tennessee Supreme Court Date of Final Relief: January 19, 2001 Brady error at sentencing: 209 due process violation; prosecution improperly withheld police report which contained evidence favorable to the accused and was material to the issue of sentencing. Johnson v. State, 38 S.W.3d 52 (Tenn. 2001) Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution).

11 404 The University of Memphis Law Review Vol : Relief granted in 2 cases: 26. Michael Dean Bush (#133) Counsel: William Redick and Peter Heil County: Putnam Co. (change of venue to Cumberland Co.) Court of Final Relief: Cumberland County Criminal Court Date of Final Relief: March 7, 2002 of counsel to present adequate evidence of defendant s mental illness (upon agreement of parties). State v. Bush, No (Cumberland County Cir. Ct. order filed (March 7, 2002). 27. Edward Leroy Harris (#92) Counsel: Tom Dillard County: Sevier Co. Court of Final Relief: Sevier County Criminal Court Date of Final Relief: June 17, 2002 Mental retardation claim: cruel and unusual punishment violation; during the pendency of defendant s tier three federal habeas review, state post-conviction trial court set aside death sentence due to Harris s mental retardation, pursuant to Van Tran v State, 66 S.W.3d 790 (Tenn. 2001), in response to a motion to reopen post-conviction proceedings and based on record developed in federal court. Harris v. State, No. M (Sevier County Cir. Ct. order filed June 17, 2002).

12 2008 Pretend Justice 405 APPENDIX E Tennessee Death Penalty Cases in Which Relief Was Granted in Federal Habeas Corpus (Third Tier) (Current as of December 31, 2006) (Source: The Tennessee Justice Project) 1995: Relief granted in 1 case: 1. Richard Houston (#10) 210 Counsel: James S. Liebman, Henry Martin and Mark E. Olive County: Knox Co. Date of Final Relief: March 28, 1995 Sandstrom error at guilt was not harmless: 211 due process violation; jury instruction on malice element at guilt phase impermissibly shifted the burden of proof to the defendant. Aggravating circumstance unconstitutionally vague: cruel and unusual punishment violation; the heinous, atrocious and cruel, (i)(5), 212 aggravating circumstance was vague and thus the jury instruction in regards to the aggravator was too uninformative to properly guide jury Defendant s number from the Tennessee Death Penalty Demographic Chart. See app. C Sandstrom v. Montana, 442 U.S. 510 (1979) (holding that presumptions that shift the burden of proof from the prosecution to the defendant to prove an element of a crime violates the Fourteenth Amendment due process clause). This concept was applied specifically to presumed malice instructions in Yates v. Evatt, where the Court found a mandatory rebuttable presumption unconstitutional. Yates v. Evatt, 500 U.S. 391, 402 (1991). As here, the Court found that malice should not be assumed or inferred from either an unlawful act, like a killing, or from the use of a deadly weapon. After finding a Sandstrom error the court must conduct a harmless error analysis to determine if the error had a substantial or injurious effect or influence on the jury TENN. CODE ANN (i) (2006) sets forth the aggravating circumstances which will be referred to in this document by the common names and the statute section number.

13 406 The University of Memphis Law Review Vol. 38 Houston v. Dutton, 1995 FED App. 0108P, 50 F.3d 381 (6th Cir.). 1997: Relief granted in 3 cases: 2. Richard Hale Austin (#2) Counsel: Larry D. Woods and Michele D. Collins County: Shelby Co. Date of Final Relief: October 2, 1997 of counsel to present mitigating evidence. Austin v. Bell, 1997 FED App. 0296P, 126 F.3d 843 (6th Cir.). 3. Ronald Eugene Rickman (#3) Counsel: William P. Redick, Jr., Paul Bottei and Henry Martin County: Shelby Co. Date of Final Relief: December 2, 1997 IAC at guilt: right to counsel violation; failure of counsel to investigate and prepare for trial. Counsel s repeated expressions of hostility towards the defendant amounted to constructive denial of right to assistance of counsel in violation of Cronic v. U.S., 466 U.S. 649 (1984) 213. Rickman v. Bell, 1997 FED App. 0352P, 131 F.3d 1150 (6th Cir.). 4. William Edward Groseclose (#4) Counsel: Larry Woods County: Shelby Co. Date of Final Relief: December 2, In Cronic v. U.S., the Court held that prejudice is presumed in cases of actual or constructive denial of counsel. 466 U.S. 648, 659 (1984).

14 2008 Pretend Justice 407 IAC at guilt: right to counsel violation; failure of counsel to develop any theory of the case or conduct any meaningful adversarial challenge to the prosecution s case. Groseclose v. Bell, 1997 FED App. 0351P, 130 F.3d 1161 (6th Cir.). 2000: Relief granted in 1 case: 5. James David Carter (#55) Counsel: Gary C. Shockley County: Hamblen Co. (change of venue to Greene Co.) Date of Final Relief: July 7, 2000 of counsel to present mitigating evidence. Carter v. Bell, 2000 FED App. 0221P, 218 F.3d 581 (6th Cir.). 2002: Relief granted in 2 cases: 6. Richard Caldwell (#39) Counsel: David C. Stebbins and Paul R. Bottei County: Henderson Co. (change of venue to Madison Co.) Date of Final Relief: April 30, 2002 Sandstrom error at guilt was not harmless: due process violation; instruction that a jury should presume malice from use of a deadly weapon impermissibly shifts the burden of proof from the prosecution to the defendant. Caldwell v. Bell, 2002 FED App. 0149P, 288 F.3d 838 (6th Cir.). 7. Timothy Eugene Morris (#25) Counsel: Paul Bottei and Kelley Henry County: Greene Co. Court of Final Relief: Eastern District Court Date of Final Relief: May 16, 2002

15 408 The University of Memphis Law Review Vol. 38 of counsel to present mitigating evidence. Morris v. Bell, No. 2:99-CV (E.D. Tenn. May 16, 2002). 2005: Relief granted in 2 cases: 8. Ronald Richard Harries (#27) Counsel: Bill Redick, Pete Heil, and Chris Minton County: Sullivan Co. Date of Final Relief: July 28, 2005 of counsel to adequately investigate and prepare for sentencing trial. Harries v. Bell, 2005 FED App. 0316P, 417 F.3d 631 (6th Cir.). 9. Wayne Lee Bates (#84) Counsel: Stephen M. Kissinger County: Coffee Co. Date of Final Relief: March 23, 2005 Prosecutorial misconduct at sentencing: due process violation: prosecutors repeatedly told the jury that by permitting the defendant to live they would become an accomplice to the murder and an accomplice to future crimes, because the defendant is a rabid dog to whom they will be issuing a warrant of execution for someone else. The prosecutors frequently followed these expressions with their negative personal opinions about defendant s expert witness and with personal attacks against defendant s lawyers. Bates v. Bell, 2005 FED App. 0144P, 402 F.3d 635 (6th Cir.).