Hartman v. State

HARTMAN, Charles Edward

Petitioner-Appellant, Tennessee, Respondent-

STATE

Appellee. Tennessee,

Supreme Court of

at Nashville.

March

phase prosecutorial resulting misconduct rights in a violation of his constitutional un- der Massiah v. United (1964), Brady Maryland, v. 83, (1963). post-con- viction court merit in found no presented petition. issues and dismissed the Appeals The Court of Criminal modified the judgment of the trial it court affirmed as granted modified.1 We review in this cause 11, Tenn.R.App.P., chiefly under Rule to con- sider the two above-described issues. judgment We now affirm the of the Court Appeals upholds of Criminal it insofar as conviction and vacates sentence. The cause is trial court remanded to the for fur- sentencing proceedings. ther raised, As to the numerous issues primary petitioner’s one allega concerns the tions violated the State his Sixth particular, Amendment In to counsel. after he had been indicted had retained counsel, cellmate, arranged the State with his Kenny inmate, King, and with another Raven petitioner “Snake” engage in con concerning charges versations for the purpose obtaining incriminating state McGee, Nashville, appellant. Richard for against ments for Ancillary use him at trial. Burson, Atty. Charles Report- W. Gen. & claim, petitioner alleged to this er, Feirman, Merrilyn Gen., Atty. Asst. disclose, part State pre failed to Nashville, appellee. for discovery process, paid trial that it procuring for his in $1000 efforts Frazier as BIRCH, Justice. witness; “independent” The petitioner-appellant, Charles Edward contended that this violated his failure Hartman, of first-degree process. Also, was convicted mur alleged due May der and sentenced on to death several instances of ineffective assistance of counsel, electrocution. His conviction troubling and sen most one Court in State v. tence were affirmed concerns prepare trial counsel’s failure to Hartman, (Tenn.1985), cert. 703 106 adequately sentencing S.W.2d hearing. for denied 478 Moreover, application for Rule re view, January On felony ag asserted post-conviction petition gravating Hartman filed the circumstance described Tenn. 2—203(i)(7) subject it, that is appeal. § of this he Code Ann. could not consti 39— issues, raised including tutionally numerous penal ineffective be used to the death during ty assistance of sentencing counsel this cause.2 State, present 1. Hartman v. No. 01-C-01-9008-CC- and interview their witnesses testi- (Tenn.Crim.App. trial; 1992 WL 146756 mony ineffective assistance of counsel Nashville, 1992). filed June failing adequately prospective for voir dire jurors concerning regarding views their 2. The five other included issues under penalty; death the trial court’s failure to define granting Court's order review are: ineffective aggravating circumstance Tenn.Code Ann. failing investigate assistance of counsel testimony did not violate majority mission of Frazier’s of the Court of appeal, On rights. We Appeals affirmed the trial court’s constitutional Criminal hold, however, must jury-im- judgment; sentence vacated for resen- imposed sen- and the cause remanded posed death sentence vacated This modifi- State imprisonment tencing life. under this Court’s decisions tence of (Tenn.1992), attorney gen- Middlebrooks, subject cation is to the district 840 S.W.2d (Tenn.1993), attorney gen- Howell, If the district approval. eral’s State v. 868 S.W.2d (Tenn. sentencing disapprove, a new Bigbee, eral were 885 S.W.2d 1994). the ma- hearing be conducted. While the Court of of whether issue agreed jority the intermediate court authority to reduce a Appeals has Criminal panel disposition each mem- yet imprisonment to life death sentence grounds. opinion upon issue, based his different ber that to be do reach decided. We light of remand the our because Cornelius, Jr., Judge Allen the author R. resentencing is re moot. issue is Because opinion, concluded that the of the court’s of trial quired, need not address the issue we the effective petitioner indeed received sentencing the counsel’s effectiveness stages at all of the assistance of counsel things, judgment of stage. In all other the also proceedings. He concluded Appeals of Criminal is affirmed. the Court recruiting through role in and Frazi- its er to statements from elicit petitioner, the violated Judge Sixth Amendment counsel. summary a To understand better testimony ruled that Frazier’s Cornelius original presented at the trial of the evidence not have at the trial. should been admitted helpful. On November Nevertheless, he the reasoned that because sixteen-year- p.m., the of 8:30 and 9:30 hours contained otherwise sufficient evi- record Nishiyama disappeared Kathy while driv- old jury upon dence which the could based boyfriend’s her home south finding guilt, its its consideration city. to her home north of the Clarksville testimony guilt-innocence stage at the of the County, in Montgomery is located Clarksville However, trial because was harmless error. adjoins which Dickson Houston counties. testimony “highly prej- the the nature of date, petitioner the an inmate of On that Judge shocking,” udicial and found Cornelius “trusty” County jail. the Dickson He held testimony prejudiced the could have the there, the and his duties included care status

jurors during penalty stage. According- patrol cars. and maintenance of the sheriffs ly, the court vacated death sentence. evening petition- On of November Although Judge he with Corne- concurred patrol deputy a car er ehauffeured sheriffs sentence, Judge lius in John K. vacation of deputy home. The then directed five to his Byers disagreed of Fra- introduction petitioner to the car back drive testimony zier’s constitutional error. In- Instead, County jail. petitioner re- Dickson stead, counsel had he concluded trial continued to fused to follow this directive and stage during penalty been ineffective patrol in Dickson and Mont- drive the car adequately the trial because he failed to Although petitioner gomery counties. Dwyer, prepare Judge for it. Robert K. away deputy’s house from the drove panel, third found no constitu- member he approximately p.m., patrol car at 5:30 tional all and He jail violation at dissented. County Dickson until not return to the judgment of would have affirmed the convic- morning. a.m. next almost 3 tion and the sentence. p.m. p.m. the same and 8 on Between record, Montgomery County residents evening, three

Upon agree we review individually by a man in Byers’s pulled were over Judge conclusion that ad 39-2-203(i)(5) cruel"); ("heinous, his innocence § to introduce evidence of atrocious process by sentencing mitigating due court’s use of denial of as circumstance at the shifting presumption in- "the Sandstrom phase trial. struction”; permit trial court's refusal patrol well; clothes driving civilian car. This did not area he know the Clarksville police third, man claimed to be an “undercover during night patrol occasion, officer.” On each “officer” Harrell, up car creek ended and Willie asked directions Dickson. Two of acquaintance, had towed it out. Each of these residents identified in court subsequently these statements was contra- man pulled who had them Be- over. by testimony dicted offered at trial. p.m. p.m. night, tween 9:15 and 9:30 Noteworthy also is the of a num- patrol persons car was observed several County deputies ber Dickson Sheriffs as it travelled in Clarksville on Riverside their observations of a blood-like sub- Drive, which is located within two three stance smeared near the trunk on the rear place miles of the the victim’s car was found. patrol fender of ear upon five its re- persons One of who saw the car turn. Authorities did determine that the Roger Meekley, a Clarksville detective. body victim was dead her until was found in He saw first the car as travelled on north County a remote wooded area Houston Riverside Drive in the same direction the three one half months later. victim could have taken to reach home. her cogent arrayed Included in the Then, later, about fifteen minutes saw against was the same head car south on Riverside Drive and Frazier. Frazier that testified at trial Highway turn onto Al- Dickson. 48/13 petitioner had amade number of incrimina- though identify he positively could not ting statements to him while were incar- petitioner ear, at trial as the driver of the he cerated at the Main Prison in Nashville. Ac- did describe the as a driver white male with Frazier, cording petitioner told him hair, “longish” wearing brown green army a patrol lights that he turned the car’s blue on jacket. fatigue-type This description com- driving while behind victim that ported petitioner’s physical with the charac- over, pulled she when he told there her clothing teristics that with time and he family in sickness her and that she needed to night. wore that come him. Frazier that testified p.m. approximately evening, At a petitioner bragged raped that he had person patrol a stopped second observed car victim—before and after he had killed her. (a beside small description brown car con- ear) sistent with the victim’s same II ultimately location where the victim’s car was post-conviction At the hearing, per- four found. A man in civilian clothes was stand- involved in sons the education of incrimina- the car peering beside into it. This ting petitioner statements from the testified. identify could petitioner witness Hestle, first of The these was Jack the Dis- car, standing the man beside nor could he Attorney Montgomery trict General for identify patrol County ear as Dickson County crime; at the time of the he entered However, patrol five. dispatch car rec- private practice September in 1982. The Montgomery County ords of neither Fisher, second was Richard an Assistant Dis- Sheriff nor the Clarksville Police reflect a Attorney County. trict General for Davidson stop traffic made at this location on that Although prosecuted King Fisher in had evening. past, King trusted him. witness Another investigating disappear- While the victim’s McCutehen, was Pat Hestle’s successor as ance, petitioner authorities learned that the Attorney Montgom- the District General for joyriding County had in Dickson County; ery prosecuted his office case. night. Sheriffs car same John Bobo, The fourth witness was Wade As- Cox, agent employed an Bu- Federal Attorney primarily sistant District General Investigation, reau of went to the Dickson responsible investigation for the trial of County jail petitioner. to interview the supervision. this case under MeCutchen’s petitioner during made several statements first, the interview with Cox: that he early had Hestle testified that late second, night; been in Clarksville that he was contacted an inmate trial, days a few before During a third visit Frazier was Prison in Nashville. at Main tape had King reported that recorder serving second-degree murder a sentence for malfunctioned, plan to clemency hearing. thereby thwarting the and was soon Neverthe- petitioner tape. him that conversation on Frazier told record the less, to him about had heard the incriminating made statements Frazier confirmed he He Nishiyama incriminating ease. asked Hestle statements petitioner make thought improve testify agreed he it would in re- King’s presence whether clemency he infor- were to obtain physical chances harm. protection turn for Nishiyama trial, case. Hestle mation about and the Frazier testified at might thought help. it advised him he After to death. was convicted and sentenced trial, King’s prison deposited to $1000 time, King contacted At the same producing for his role payment account as told him the made Fisher and as a witness. Frazier incriminating about the case to statements re- him. indicated an interest relayed money offered. Fisher

ward Ill Hestle, contacted information to who turn law clear the Sixth Bobo; he told them that the McCutchen to all to counsel attaches Amendment apparently made stages prosecution. “[0]nce of a ad critical Kong. statements against versary proceedings have commenced Thereafter, McCutchen, Bobo, individual, legal and Fisher repre trip, Main Prison. On this first interrogates went to the government sentation when Williams, 387, 401, King. King inside and talked to him.” Brewer v. Fisher went (1977) made clear to that he would not Fisher 51 L.Ed.2d $1000, testify, attempt he would (citing v. United but Massiah (1964)). incriminating with the record an conversation 12 L.Ed.2d 84 S.Ct. petitioner tape provide and a on audio Supreme held United States Court third-party testify witness to at trial. Dur- government agents alerted a co that where visit, King ing this revealed few details that operating any inmate listen for incrimina to petitioner accused, had him. the told These included ting from an even such statements raped that victim had been and that may the passive imputable conduct Court, racial had States v. bias been motivation. Fisher United government. relayed 264, 275, this information to and Henry, 447 U.S. McCutchen 100 S.Ct. Bobo; they agreed provide money (1980), to the characterized 65 L.Ed.2d King had demanded. part government the such conduct on of agents planned, “impermissible interfer as a The next visit to the Main Prison occurred right the to assistance of counsel.” ence with about two weeks before trial when Hestle right attached and King. then the to counsel has and Bobo met with and Once asserted, must of course petitioner them had the State Frazier told the related him, simply including it. means more than killing details the honor This of prevent the accused the after the cannot petitioner raped the had victim he State King, of counsel. they obtaining the assistance had her. When met with he slain imposes on the the Amendment also other information about inci- The Sixth furnished obligation dent, peti- respect including an affirmative the statement lights patrol accused’s choice seek preserve used and tioner had the blue occa persuaded We have on several car to the victim over and had this assistance. pull upon clarify scope by telling get her to into the ear with him her sions been called regard, family obligation this and of Dur- of the State’s that member her was sick. that, least, visit, very attempt made clear at the King agreed to this affirmative prosecutor police have an petitioner’s statements on audio record the not act in manner party present (pre- obligation tape to have a third Frazier) thereby pro tape dilutes sumably to authenticate the circumvents by to counsel. right testify at tection afforded trial. Moulton, 169, 170-171, prosecutors. Actually, 474 U.S. met Maine ever with the (1986) precipitated these communications meet (footnote omitted). place. ings King with and Frazier in first by Any admissions made be question petition There is no law in fore enforcement authorities became right er’s Sixth Amendment to counsel had course, would, volved be admissible. As at prosecutors attached the time talked with Supreme the U.S. Court has noted: “the King recording and Frazier Sixth Amendment is violated whenever— had al statements. Petitioner by happenstance luck State obtains —the ready represent been indicted and had been incriminating from the statements accused by clearly ed counsel for He months. right to counsel has attached.” rely on “medium” entitled counsel as a Moulton, 176, 106 Maine v. U.S. himself and the State. Michi See added). (emphasis at 487 Jackson, gan v. (1986); Moulton, Maine v. post-con From 106 S.Ct. at 487 hearing, appears viction no distinction be Also, ap once and Frazier had been tween those details Frazier heard before he proached by recording Bobo about sub contacted Hestle those he heard after sequent by petitioner, statements made becoming prosecutors. involved acting clearly agents were of the However, both Hestle Bobo testified that State. their conversation with Frazier about obtain [KJnowing exploitation the State ing petitioner’s statement occurred after the opportunity to confront the accused with- bragged to Frazier that he being present out counsel is as much a raped the victim. Bobo recalled that it obligation breach the State’s not to cir- King, who them informed cumvent to the assistance of him had told used counsel as is the intentional creation lights pull the blue car to opportunity. such an Accordingly, victim over. It is unclear from record Sixth Amendment is violated when when Frazier this detail. if heard Even Fra State obtains statements particular zier not know detail knowingly circumventing the accused’s entering employ, before error State’s present to have counsel in a confron- admitting portion tation between the accused and a state subject analysis. to a harmless-error State agent. 480, (Tenn.1987), Sparks, v. 727 S.W.2d 482 Moulton, 176,106 Maine v. 474 U.S. at S.Ct. denied, 872, 205, cert. 484 U.S. 108 S.Ct. 98 (citation omitted). Therefore, at any 487 (1987); also, L.Ed.2d 156 see States United by petitioner made statements the to the two 275, Henry, v. 447 U.S. at 100 2189 S.Ct. been inmates had recruited the (footnote 13). Additionally, cogent other tes State would be inadmissible. v. Massiah timony supports theory that the State’s the 201, 1199, 12 United 377 U.S. 84 S.Ct. petitioner by using the abducted victim the 246; Webb, State v. 625 259 S.W.2d lights blue car to cause the (Tenn.1981), denied, 910, cert. 456 U.S. 102 pull Montgomery to victim over. Three 1760, (1982); 72 S.Ct. L.Ed.2d 168 v. State County residents testified that a Dickson (Tenn.1980), Berry, de 592 S.W.2d 553 cert. County pulled “undercover officer” had them nied, 887, 101 449 U.S. S.Ct. 66 L.Ed.2d night by using lights over that same the blue (1980). patrol car; on the two of these witnesses remains, however, identify petitioner The fact Fra were able to the at trial as petitioner incriminating person pulled zier heard the make who the them over. More over, county first au pa statements contacted the another witness observed a before matching descrip thorities. Frazier had communicated with trol car next to a car (and Fisher) King Hestle to effect very spot tion of victim’s car where petitioner bragging ultimately been about the victim’s car was found. This them standing the details the crime before either of witness described a man beside Bagley, v. acquittal.” 473 U.S. fitting general appearance of the United States car 667, 676, 105 3380,87 L.Ed.2d 481 Therefore, any testimony by petitioner. Williams, (1985); also, v. see State used car’s (Tenn.1985). victim, stop if told S.W.2d lights to even to blue entering “employ,” was him after by the state to witness Promises made beyond a directly harmless reasonable doubt. His testimony exchange for his relate testimony, having remaining unquestionably A credibility prose- of the witness. spoke ever with the been obtained before he duty evidence of cutor has a to disclose Accordingly, prosecutors, was admissible. prosecu- to a promises by the state made testimony petitioner’s claim that this violated exchange his testimo- tion witness his Amendment to counsel is Sixth ny.... especially This true when is without merit. testimony of is essential to the the witness case.

state’s IV (11th Kemp, 809 F.2d Moore was Petitioner claims that he de denied, Cir.1987), cert. 481 U.S. his to confront the witnesses nied 95 L.Ed.2d thereby against him and that his due asserts stated, As the circumstantial evidence process right to fair trial was violated against petitioner strong, even without was to inform him of the because the State failed questioned testimony. Frazier’s testimo- agreement pay King produce a witness however, is, ny, linchpin: was the statements. The together tie the served to circumstances against strong case State’s provide meaning. Clearly, contextual indeed, only evidentiary but the direct link paid, prom- evidence that Frazier the victim and the clemency, given any or benefit whatso- ised testimony of Frazier. testimony pro- his have been ever for should Supreme The United States Court has vided counsel. The facts related to defense held that: post-conviction hearing, indi- Frazier received cate that suppression by prosecution evi- protection reprisal promise of upon dence favorable to an accused re- other inmates. Bobo testified quest process violates due where evi- King’s. money entirely Trust account guilt pun- dence material or to either prison reflect that entire records at ishment, irrespective faith good deposited King’s into account. $1000 the prosecution. bad faith of The trial court found as matter fact Brady Maryland, prove no evidence was introduced (1963); 1194, 1196-97, 10 L.Ed.2d 215 see money agreed shared share also, Davis, State v. 823 S.W.2d grave misgiv- spite of our with Frazier. (Tenn.Crim.App.1991). spe- Court man- ings obtained cifically impeaching gov- held evidence ner, proof to find that the we are constrained credibility may exculpa- ernment witness’s hearing to post-conviction fails offered at meaning Brady. of tory within the “When of support petitioner’s contention consti- reliability given may of witness well be tutional violation. innocence, guilt or nondis- determinative suggests affecting credibility that McCutchen’s closure of evidence falls The Giglio support later for Frazier’s clem- general rule.” v. United Bobo’s within this 150, 154, ency by writing a letter 405 U.S. bid—McCutehen S.Ct. (1972) clemency hearing— testifying (quoting Napue v. Bobo at 31 L.Ed.2d 104 Illinois, agreement. ad- prior of a Each is evidence 360 U.S. S.Ct. (1959)). clemency having supported Frazier’s 3 L.Ed.2d 1217 “Such evi- mitted accused,’ petition is but denied their dence ‘evidence favorable to an 1196], upon testifying 87[, any way Frazier Brady, at 83 S.Ct. at so conditioned that, Apparently, may have effectively, may it at trial. while if and used disclosed hoped his at the make the difference between conviction trial would result favorable treatment at means the omission must be evaluated clemency hearing, his no in the context of entire If record. promise for such is no guilt made favorable treatment there reasonable doubt about only promise adduced.3 The or not made to whether the additional evidence is considered, justification protected Frazier was that he would be there is no for a hand, testified; other inmates after he this area new trial. On the if other the ver- fully explored during already questionable validity, at trial is Frazier’s dict ad- relatively impor- cross-examination. ditional evidence of minor might to tance be sufficient create a rea- question The remains whether the doubt. sonable trial, fact that King, testify who did not at Agurs, States v. at United U.S. 104 — payment helping received prosecution “Materiality” 2398-2402. should have disclosed been to defense coun recently more been defined as that which sel. The Supreme United States Court has undermines confidence in the outcome of the injected “materiality” requirement into the trial. exculpatory provided rule that information be The evidence is material if there is a to a defendant. that, probability reasonable had the evi- subject [Brady [I]f matter of such a ] defense, dence disclosed to the material, request is if substan- indeed result of the proceeding would have been exists, tial claiming basis for materiality A probability1 different. ‘reasonable is a require is prosecutor reasonable probability sufficient to undermine confi- respond by furnishing either the informa- dence the outcome. by submitting tion or problem judge. 682,105 States v. Bagley, United 473 U.S. at 3383, accord, Davis, S.Ct. at 97, 106, Agurs, United States v. S.W.2d [I]mplieit requirement materiality payment find the King We $1000 is a suppressed concern King testify; evidence be immaterial. might credibility have affected the outcome was not an issue this trial. trial.... light approached of the fact that Frazier had Hestle on his own before discussion of deprived [U]nless the omission the de- occurred, payment the connection trial, fendant of a fair there constitu- is no money Frazier and tenuous at requiring tional violation that the verdict Therefore, best. the failure of the State to aside; be set and absent a constitutional disclose information to defense counsel violation, prose- there was no breach of the disclose_ in any way deprive did not of a duty cutor’s constitutional fair trial. possibility The mere that an item of might helped undisclosed information defense, might V have affected the trial,

outcome of the does not establish The was convicted of first- “materiality” constitutional degree perpetration murder in the sense.... felony kidnapping. found three materiality proper standard of aggravating justify imposi must circumstances (1) overriding jus- reflect our penalty: concern with tion of the death that the mur finding guilt. finding heinous, tice of the of a especially Such der was atrocious or cruel permissible only supported by if depravity evi- in it involved or torture of (2) establishing guilt mind; dence beyond a reason- the was murder committed necessarily engaged able doubt. It that if follows while the defendant in was commit (3) felony the omitted ting evidence creates a reasonable a (kidnapping); and exist, doubt that did otherwise consti- was murder committed the defendant custody tutional error has been This in in place committed. while he was lawful a petition Incidentally, clemency 3. Frazier’s was denied. In State v. during escape beyond a reasonable doubt. error

of lawful confinement or Howell, 260-261, held that: custody the of we place or from 868 S.W.2d from lawful lawful confinement. guarantee precision order to [i]n sentencing considerations individualized Subsequent opinion of the explana- provide principled a demand case, this Appeals in this Court of Criminal ease, in it is for our conclusion each tion Middlebrooks, 840 Court released State v. conducting harmless er- important, when (Tenn.1992). Middlebrooks, In a S.W.2d 317 review, completely the rec- examine ror majority of the Court held unconstitutional po- of which presence ord for the factors de aggravating use circumstance of the ultimately tentially the sentence influence 2—20B(i)(7) §Ann. scribed in Tenn.Code 39— include, are not limit- imposed. These but 39-13-204(i)(7) support imposi § [now ]4 to, strength of remain- the number ed of penalty death conviction tion circumstances, aggravating valid first-degree murder in com committed sentencing, prosecutor’s argument at felony. in mission of a determined that We the invalid admitted establish evidence conviction, aggravating the use of this such nature, quality aggravator, failed narrow class of circumstance strength mitigating evidence. required by death-eligible Arti murderers I, § cle Tennessee Constitution. Initially, point out factors we that several Inasmuch as the rule an constitutional finding appear support here would integ nounced in Middlebrooks enhances the First, under Howell. no ad- harmless error rity reliability process fact-finding of the evidence, nor was ditional trial, retroactively applied it must be jury, already properly before proceedings. post-conviction in Mead See aggrava- of the invalid introduced (Tenn. State, ows v. 849 S.W.2d Moreover, prosecutor did not em- tor. 1993); State, v. Barber S.W.2d aggravator jury in his phasize the invalid (Tenn.1994). Thus, jury in this case Furthermore, argument. there relied, part, upon aggravating invalid proof mitigating minimal circumstances. determining punishment. circumstance in However, conclude, after thor- we cannot record, that the sentence ough review of the Nevertheless, neither the United would have been same prohib States nor Tennessee constitution weight aggrava- no accorded the invalid reviewing upholding its a court from a death this result because of our tors. We reach part on sentence that is based an invalid aggravators. remaining assessment of aggravating To guarantee circumstance. Howell, critical factor in we noted that a that a will receive an individual defendant analysis qualita- sentence, our harmless-error reviewing ized court aggravating nature of circumstance reweigh aggravating and tive each must either aggravator invalid mitigating remained evidence or conduct harmless- sentencing equation. Black, from the was removed Stringer error review. v. (1992); look an intention to This Court stated 117 L.Ed.2d remaining circumstances 110 substance Mississippi, Clemons v. persuasiveness, as to the (1990); and their as well 108 L.Ed.2d State Cazes, proof supporting them. The ob- (Tenn.1994); quantum 875 S.W.2d 253 remaining aggravating Howell, (Tenn.1993). jective reliability of a 868 S.W.2d 238 particular importance in circumstance is of We now review for harmless error Id. this evaluation. determine, on the here must now based facts remaining ag- there are present, jury’s In this two whether the consideration “heinous, gravators: atrocious cruel” aggravator the invalid constituted harmless murder, arson, commit, 2—203(i)(7) degree rape, § first Ann. states: “The Tenn.Code 39— theft, pi- robbery, burglary, kidnapping, was committed while the murder defendant aircraft engaged accomplice committing, or was an throwing, discharg- racy, placing or or unlawful of, commit, attempting or commission was ing of a device or bomb destructive fleeing committing attempting 104 offense, § persons

nature of Ann. Tenn.Code 39- of counsel is to ensure that accused 2-203(i)(5), as an of crimes receive a fair trial. status crime, “escapee”- at the time of the Tenn. judging The benchmark for claim of 39-2-203(i)(8). § Code Ann. record in The ineffectiveness must be whether counsel’s supports this case the second of these two proper so conduct undermined func- aggravators, purely objective is which na- tioning process adversarial proof ture. is uncontradicted that the having pro- trial cannot be as relied on custody just constructive duced result. County Department the Dickson Sheriffs 668, 686, Washington, v. 466 Strickland disappeared. the time the victim The mean- 104 80 674 ing of application this circumstance and its I, § Article 9 of the Constitution Tennessee proof presented in this is certain. case and the Sixth Amendment to the United Constitution in import. States are identical hand, aggravator On the other the other (Tenn.1975). Rose, Baxter 523 930 S.W.2d cruel”) (“heinous, objec- atrocious or less is sought tive in nature. This Court Supreme The United States Court objective by make it defining more its terms requirements finding has defined two for a by requiring jury instructed that a defendant did not receive effective as sentencing (1) to these definitions at the hear- per assistance counsel: that counsel’s penalty trial where the death is degree formance deficient to the sought particular aggra- on the of this functioning basis counsel was not as the Sixth Williams, (2) vator. envisioned; See State v. 690 S.W.2d Amendment that the de (Tenn.1985). performance 529-532 error in prejudiced While not ficient the defense (see IV, present infra), Washington, case Issue effort. Strickland v. trial court not instruct as to S.Ct. at 2064. The second “re Also, quires showing these definitions. amount substantial counsel’s errors were so proof deprive presented aggra- serious the defendant of a fair trial, vator is whose result is reliable.” included of Frazier. prove U.S. at 2064. credibility While we S.Ct. at To do not redetermine the trial, deprivation of a fair a defendant must conducting witnesses when a harmless- probability show “that there is a reasonable analysis sort, error of this the fact that, errors, unprofessional but counsel’s credibility seriously of a witness was so con- proceeding the result of the would have been tested determining is a relevant factor in probability A different. reasonable is a beyond whether we find a reasonable doubt probability sufficient to undermine confi that an error of this nature was harmless. dence in the outcome.” U.S. at disregarding constitutionally After inval- performance S.Ct. at 2068. If counsel’s aggravator, id remaining ag- where the valid way deficient, in some gravator but defendant can substantially supported prove deficiency prejudiced his de testimony in question, the effect of harmless fense, any deficiency then is deemed “harm admitting the error in aggravator the invalid error,” less counsel will be held to be is much more difficult to determine. Under ineffective. U.S. at S.Ct. at of this circumstances we are unable 2067. to conclude that the sentence jury given weight

been the had the no same strong presumption There is a aggravator. Accordingly, to the invalid we attorney assistance rendered falls remand the cause to the trial court for a new range profes within the wide of reasonable hearing sentencing may in which the State sional assistance. The defendant must over statutory penalty. seek either See reasonableness, presumption come this Middlebrooks, 840 S.W.2d at 347. alleged deficiency and he must show that the strategy. was unsound trial 466 U.S. at VI reviewing A court should purpose Amend Sixth look to all the circumstances the case and requirement alleged deficiency ment for the effective assistance evaluate the from trial

105 impartial, this has 104 than fair or issue perspective. 466 was less counsel’s U.S. no merit. at 2065. S.Ct. complains allegations that trial coun Petitioner also advances

Petitioner adequately investigate assistance of counsel at failed to of ineffective sel witnesses, present sentencing phase tes of the trial. Because we interview certain sentencing timony post- The that a new hear trial. evidence have determined holding of v. hearing, necessary that al under the ing conviction reflects is Howell, supra, pretermitted. though personally did not interview this issue is counsel of the one hundred fourteen witnesses each jury on During its instructions him provided had been to whose identities circumstances, in aggravating court trial, he, co-counsel, investigator or an before § pursuant to Ann. 39- structed Tenn.Code Addi interviewed most of them before trial. 203(i)(5) § Ann. 39-13- [now Tenn.Code 2— tionally, to wit even as the uninterviewed 204(i)(5) Specifically, the court instructed ]. nesses, coun the trial record establishes that jury impose could the death vigorous sel cross-examined those witnesses found, beyond it a reasonable penalty unless ly discrepancies in tes and illuminated their doubt, especially murder hei “that the Moreover, timony. contrary to nous, or cruel in that involved atrocious assertion, present testimony did dur counsel depravity petition of mind.” The torture case the defen defense instruction, more, this without er asserts that spent theory that the dant’s defendant jury’s adequately channel the discre evening looking much of his time unconstitutionally vague. He tion and is to pull someone car out of a creek. Williams, the case of State v. 690 cites short, performance find that we counsel’s (Tenn.1985), proposition for the S.W.2d during guilt phase the trial was “with “heinous,” “atrocious,” and the terms competence range demanded of further defined. “cruel” should Rose, attorneys in criminal eases.” Baxter v. has merit. 523 S.W.2d at 936. This issue no Supreme Court has The United States clearly sought to be described results complains that The also (1) aggravating from the factors: use adequately trial counsel did not dire voir is ensure that the senteneer’s discretion jurors respective prospective on their atti limited to minimize channeled and the risk penalty. tudes about the death decision arbitrary capricious imposition of the juror on prospective whether voir dire — Creech, penalty, Arave U.S. death v. issue, degree, strategic this to what is a -, 1534,123 (1993); L.Ed.2d 188 S.Ct. one. tactical exist refrain Valid reasons 764,110 Jeffers, 497 Lewis v. U.S. questions asking from detailed on the death (1990); Maynard v. Cart penalty, particularly in a case such as 1853, 100 wright, 486 108 S.Ct. U.S. ac where defense that the state has (1988); Godfrey Georgia, v. L.Ed.2d 372 wrong person. cused the Too intense 1759, 64 L.Ed.2d 398 U.S. 100 S.Ct. inquiry regard may perceived by in this (1980); Georgia, Gregg v. jurors potential as a concession that credible (1976); (2) L.Ed.2d Therefore, guilt can evidence exists. we capital sentencing make sure that the scheme not find that counsel here was ineffective eligi adequately persons narrows class deeper failing to into this delve sensitive is, penalty, for the death distin ble Furthermore, area. if counsel’s choice even capital guishes whose conduct deserves those erroneous, petitioner were deemed those conduct does punishment whose prejudice. reflects failed show record Creech, supra; not. Arave v. Lewis v. Jef juror his or the trial court asked each supra; fers, Stephens, Zant penalty. In her toward the death attitudes 2733, 77 deed, number questioning resulted Supreme Court jurors being excused for cause. Because The United States Georgia’s aggravating Gregg Georgia held find no indicate that this we constitutional; facially circumstance5 it possibility avoid the arbitrary capri- of an almost identical to the given note, instructions cious sentence.7 We jury in the instant case. This Court upon remand the trial court should adhere to consistently language held that the of Tenn. the Williams holding if its instructions at 2—203(i)(5) § Code Ann. is not unconstitu- resentencing regarding include information 39— Dicks, tionally vague or overbroad. State v. aggravator. (Tenn.1981); 615 S.W.2d 126 Strouth v. We have examined the other issues State, (Tenn.Crim.App.1986). S.W.2d 819 included in our granting order review. Williams, While it is true that in this Court allegations These include of error in instruct expressed preference juries fully ing jury presumed” that “malice is and in instructed as to the definitions of those refusing to petitioner’s admit evidence of in terms,6 this many Court has decided cases (“residual evidence) nocence doubt” at sen Williams since which the definitions of tencing. We find that error in instruct these terms were not included the instruc- ing jury presumed” “malice is jury. cases, tions to the In these the Court harmless, since the was convicted upheld aggravator. the use of this Some of murder, felony premeditated murder. Williams, these cases were tried before but McKay, See State v. 680 S.W.2d Barber, See State v. decided after. (Tenn.1984). issue, remaining concern (Tenn.1988); Zagorski, S.W.2d 659 ing evidence, “residual doubt” was consid (Tenn.1985); 701 S.W.2d 808 State v. Dun- ered in the appeal can, direct (Tenn.1985). are, 698 S.W.2d 63 There Hartman, against him. See State v. resolved however, cases tried appealed 119; 703 S.W.2d at § Tenn.Code Ann. 40-30- Williams in which the definitions of those 112(a). given terms were not jury, yet we upheld “heinous, the use of the atrocious and The decision the Court of Criminal Irick, See State v. aggravator. cruel” 762 Appeals is affirmed upholds insofar as it (Tenn.1988); Portetfield, State v. S.W.2d 121 petitioner’s conviction first-degree mur- (Tenn.1988). 746 S.W.2d 441 We deem it der and vacates the sentence of death. The significant the Williams case held that cause is remanded to the trial court for fur- aggravator unconstitutionally was not sentencing ther proceedings. Williams, vague or overbroad. State v. also, Teel, 533; see State v. S.W.2d at ANDERSON, C.J., DROWOTA, J., and (Tenn.1990); Thompson, State v. S.W.2d 236 O’BRIEN, Special Justice, concur. (Tenn.1989) (The 768 S.W.2d 239 language “especially heinous, atrocious or cruel” re- REID, J., concurring dissenting. addition, quires, finding of “torture or REID, depravity Justice, of mind.” concurring The Court dissenting. held this language gave additional jury sufficient I majority’s concur in the decision that the guidance prevent arbitrary sentencing.) use of aggravating circumstance, the invalid questioned jury We find that instruc- the murder was committed peti- while the valid; tion used this case provided engaged tioner was in committing felony guidance sufficient kidnapping, so as to prejudicial requir- error Georgia's 5.The text aggravating similar cir- Jury The Tennessee Pattern Instructions have following cumstance since been language: had the revised to include the definition of the "[that "heinous,” "atrocious," "cruel,” terms ture.” vile, and "tor- outrageously wantonly was] murder See, Jury Tenn.Pattern Instruction-Crimi- torture, horrible or inhuman in that it involved nal 7.04 mind, depravity aggravated battery or an Godfrey Georgia, the victim.” 7. While the trial court's failure to instruct the (1980), later held jury in accord with Williams does not itself application of this circumstance could be require granted relief be under the unconstitutional when the facts of the case did circumstances of this the omission of the torture, finding depravity, or an Williams definition has been a factor in our aggravated battery. determination that the Middlebrooks error was not harmless. Attorney General testified and the case District that the sentence be vacated supply resentencing. attempts by Frazier to infor- other remanded exchange treat- for favorable mation majority’s af- from the decision dissent ment. opinion, firming my the conviction. that constitu- record the shows then summarized Id. at 112-13. The Court counsel, by held the United tional as corroborating evidence: the in Supreme Court Massiah United States unerringly in this case The evidence 377 U.S. 84 S.Ct. places from which defendant location (1964), his L.Ed.2d 246 and constitutional Kathy disappeared, disap- at the time she Brady process, in to due as found disposition peared, a demonstrated with Maryland, 373 U.S. with the “blue stopping for motorists (1963), during L.Ed.2d 215 were violated the lights” impli- car and clear guilt-innocence phase that of the trial and the vernacular, that, in cation the current he violations were not harmless. “looking for action.” From the was some by raised Both constitutional issues are the testimony of Estes and Jack- Carol Jackie testimony use of procurement State’s the son could have found that defen- the Frazier, penitentiary in- Raven “Snake” Kathy across stopped dant the street from mate, testimony arranged part whose was car found. His the church where her was by King, serving Kenny contract killer two p.m. 6:00 of his actions between statements life sentences. All of the evidence other than a.m., 16-17, 1981, and 3:30 on November circumstantial; testimony of Frazier was ample kidnapping leave time for general placed it in the same His murder of victim. excuses be- disappeared area the victim where where deliberately into driving lost she murdered. The that con- was evidence account to the sheriff creek to supplied victed the fill simply not extended absence do heinous, atrocious, evidence in p.m. and a.m. and hours between 9:30 3:30 aggravator or cruel was the in this record without corroboration stand by That Frazier. stated this probative that has value. appeal as Court on direct follows: Id. 113. “Snake” Frazier he Raven testified acquainted became with defendant appeal, majority On characterizes penitentiary state and related number of “linchpin” of testimony as the Frazier’s incriminating statements that defendant petitioner with the connecting According him. made to defen- descriptive term crime. A more could “put lights” him dant told that he on “Linchpin” something used. is defined as girl, told her that there a sickness togeth- that serves to hold diverse elements family, her her to lock car and come petition- Frazier’s account of the er. It was him; got that he “it” in the back seat er’s statements trans- good took and that it was so that he her case from surmise and formed the State’s ear, again; out killed her and did it conjecture guilt. to evidence angel boy- that her she prose- any discussion Prior to was; thought “had she that she friend regarding cutors the inmates more, times.” one or two or three Attorney requested District Frazier Hartman, State v. S.W.2d help obtaining release General Hestle’s denied, (Tenn.1985), cert. According to testimo- prison. from Hestle’s 3308, 92 ny, Court noted the matter of Frazier’s credibili ty: Basically, he said he information if our office could presented provide

Defendant witnesses who testi- wanted went, sentencing and the anything help far as his fied Frazier would do no information that early penitentiary information —he had secure release in at that time. A we interested and that he was an habitual liar. former were offered, counsel, exchange by presence first Hestle’s contravenes assistance, dealer, drug information about a the basic dictates of fairness the conduct Later, which said was not Hestle useful. of criminal causes and fundamental regarding Frazier offered information a car rights persons charged with crime. operation, Massiah, theft which Hestle also declined supra[, p. 377 U.S. at help too old” because “it was and “couldn’t us p. at] point.” at that rejects argument This court the State’s crime committed on November statements made the defen- 16, 1981, Sep- on was arrested dant, which formed basis of Frazier’s tember and the held on trial was testimony, were uttered the defen- 9,May approached, 1983. As the trial date prior prosecution dant the time the ac- connecting no direct State had cepted the Apparently offer of assistance. time, to the a crime. At that the state’s brief writer misread the full third contact made with the State’s at- transcript testimony of Frazier’s trial and torneys. McCutchen, Bobo, that of Generals testimony participants Because the of the evidentiary hearing. Hestle Mr. precise, chronology signifi- is less than testimony evidentiary Hestle’s at the hear- complete accuracy cant events cannot with ing referred to a collect call he received origin determined from the February record. The 1983 from Frazier. After some development relationship between the uncertain[ty] Mr. Hestle settled on Frazi- prosecutors, with essentially an unsolved may get er’s words “I be able some” hands,1 inmates, murder on their and the meaning IV, information. page See Vol. barter, testimony with for sale or Record Petition of Post Conviction variously. described authority Relief. The State no cites fact, Massiah, argument. of its In Cornelius, Judge Allen the lead who wrote Henry, Berry, Moulton and v. opinion Appeals, for the Court of Criminal (Tenn.1980) very S.W.2d 553 stand for a thusly, described it strong policy prosecutors police transcript evidentiary From the of the obligation an have affirmative not to act in hearing, it is dear that officers these state thereby a manner that circumvents agreement an pay entered into inmate protection by dilutes afforded Ring secretly tape incriminating to counsel. by Hartman statement and to furnish a testify witness to at the trial. State, Hartman No. 01-C-01-9008-CC- amazing It tape that after did not 00194, slip op. 9-11, pp. 1992 WL 146756 materialize, alleged due to an malfunction 1992). (Tenn.Crim.App. June recorder, accept- of the these state officers Judge Byers agreed John Judge with Cor- ed the uncorroborated Raven vacated, nelius that sentence be but on a opinion by our Frazier. this effort ground, different was de- state a officers was clear violation of the nied effective assistance of counsel at the 1964 case of Massiah v. United sentencing Judge Byers hearing. also U.S. regard reached different conclusion with The defendant had been and had a indicted sequence of events. He described the lawyer, by the state officers did not abide relationship development of the as follows: enforcing Spano the law while law. York, People King, killer, New It seems to me that a hired (U.S.N.Y. 1202,1205, possession realized he was in of a saleable 1959). Any interrogation product. King, secret of the de- who can be described best fendant, barn,” finding and after as an “old rat knew the indictment, protection making without the afforded recorded voice of Hartman incrimi- murder, judge 1. The trial observed in his memorandum but because of involvement of opinion that the case "raised a considerable hue Department County.” Dickson the Sheriff's cry, depraved rape because of the finding Judge agree Cornelius’s more nating statements would be valuable allegation Frazier, appellant’s lack of merit of Snake than Like credibility his counsel was ineffective. top whose was not convict Cornelius, Judge I find inconceivable line. Quillen’s experi- attorney that an of Mr. pitch then made his another ineffectively under perform ence would attorney general to district record former record My review of the circumstances. making Hartman state- ineffective to conclude leads me ments. counsel is also meritless. issue King’s proposal I am was to satisfied already repeat Hartman he had what (J. Id., Dwyer, dissenting). slip op. p. 1 entry prior said into scheme summary testimony made previous any of the incumbent or district H. judge, the trial the Honorable William attorneys general eventually became who Inman, sitting by designation, was as follows: involved. peni- main Hartman was returned Although of these the conduct officials tentiary surrender sometime unsatisfactory climate in created most car. One of his cellmates was case, I one do not find the thousand Hartman Raven who testified that paid buy any testimony or to dollars kidnapping, rape, and murder admitted the deny otherwise Hartman the to coun- Nishiyama. cellmate Kathy Another It seems record initial sel. from this King, contract Kenny described as a statements made Frazier killer, serving two life who was consecutive by any Hartman free of taint and were called the District Attor- sentences. He would, properly I were admitted. there- ney’s related that he had infor- office and fore, find, find, and not that do there murder, Nishiyama mation but about beyond harmless error a reasonable doubt Attorney, to a District talk evidence, in the introduction of this but Fisher, apparently he trust- Richard whom that it was error at all. prison to the main and ed. Fisher went Id., (J. slip op. pp. Byers, concurring). 1-2 King told him that “Hart- talked with who Judge dissenting, Dwyer, Robert no found man to his cell would come and boast events, uncertainty regard with to the critical offered, King thousand killing.” for a supported his view that the sentence money, arrange a dollars of the reward description should be affirmed with a vivid Hartman, interview with recorded the crime and criticism a detailed All re- presence of Frazier. of this was evidence, Judge mitigating rejecting Byers’ TBI, FBI, ported by Fisher finding of insufficient assistance of counsel at Attorney Montgomery District sentencing hearing. County. agreed to mon- pay The TBI agreement Judge I am in complete ey; arranged, hoped the interview was Byers when that Raven Frazier’s he finds Hartman, by spoken but words were by the was not tainted acts of it was [Thus] the recorder malfunctioned. A review of record State officials. taped was no corroboration there relayed reveals that Frazier had his infor- testimony. Frazier’s Hestle, Attorney mation to Mr. the former King testify at trial. His refused General, Fisher, King, before McCutchen refusal, according testimony, clear negotiations tape Bobo started absolute, if he testi- adamant and because Hartman’s statements. The acts of the life fied he a “snitch” and his became officials, questionable, however State jeopardy, if not forfeit- grave would be deprived produce any evidence ed. appellant of constitutional be- supporting Despite variations facts cause no was offered due to the in these tape-recorder. conclusions reached malfunction of the There- various general fore, be a consen- opinions, I there seems to see no reason to reduce the sen- early spring sus that in late winter tence. ing incriminating in- Frazier and his friend and fellow statements with a third mate, Kenny King, attorneys person obviously contacted two present, who would possibility providing about the information testify tape. then at trial and authenticate the involving Kathy in the case the death of meeting prosecutors At a later Nishiyama. According judge’s to the trial inmates, and the Bobo was advised memorandum, the first contact with a state tape recorder had malfunctioned. At that regarding Kenny King’s official this ease was Bobo, point, according to “all” the Fisher, call to Richard an assistant district person was “the who was there when this attorney King in Nashville. intimated was said” —Raven “Snake” Frazier. might Nishiya- have information about the petitioner’s attorney was notified that Subsequently, King’s ma request, case. Frazier would be a witness. Frazier testified But, King prison. Fisher met with at the trial, eventually one thousand dollars prior King prison, to Fisher’s visit to at the paid King performance” “for his Hestle, Frazier called former Jack Dis- personal attorneys, funds of the State’s who Attorney Montgomery trict General by later were reimbursed the TBI. Hestle County during Nishiyama whose tenure performed agreement also on his to assist disappeared, vaguely generally indi- early Frazier his efforts for release from might get cated that he be able to some penitentiary. concerning Montgom- information a case in ery County. Hestle testified majority acknowledges of this Court February called him in and said that “he had statements made information, would come to see him.” Hes- or Frazier after had been re tle further testified that when he met with cruited the State were inadmissible as the prison, Frazier at the “he told me what ease product petitioner’s right of a violation of the pertained gotten to and where he had [the to counsel under the Sixth and Fourteenth information] and that was all. He never said Amendments to the United States Constitu Shortly the details that [on visit].” after the Henry, tion. See United States v. 447 U.S. King poten- revelation that and Frazier were 2183, (1980); Nishiyama tial sources of information in the Massiah v. United murder, Hestle met with his successor as (1964); L.Ed.2d 246 State v. attorney McCutchen, general, district Pat (Tenn.1980), Berry, 592 S.W.2d 553 cert. de assistant, Bobo, and McCutchen’s Wade nied, 887,101 66 L.Ed.2d inform development. them of this As a re- majority, con King sult of the identification of and Frazier petitioner’s cludes that violation of the informants, possible meetings additional rights constitutional was harmless because occurred between the two inmates and the testimony upon Frazier’s was based state attorneys representing the The dates State. petitioner ments made the to Frazier meetings on which these occurred are uncer- prior King to the State’s efforts to have record, tain on this but at least three con- incriminating Frazier elicit statements from prosecution tacts between in- the and the petitioner. My reading proof post-conviction mates were revealed at the post-conviction hearing and the record of hearing. trial, original part which was made a meeting, At the first which was between post-conviction proceeding, in the record King, Fisher and it was made clear that finding. does not that King neither nor talk to Frazier would lawyers. Why practical Prosecutors are prosecutors “in- unless a one thousand dollar certainly prosecutors, should these who knew paid King. formant fee” was After assur- law, jeopardize in Sixth Amendment evidence ances were made that the one thousand dol- highly hand essential to the conviction in a paid, King sepa- lars would be and Frazier rately spoke publicized requesting murder case that with Hestle and at a sec- Bobo meeting. meeting ond It Frazier obtain further information which was at this second clearly agreed King, that it was who refused to would be inadmissible under estab- testify, explanation tape petitioner practical record the mak- lished law? The is

1H had It called to relate he heard. statements not Hestle what testimony apparent own is Frazier’s made at the time the inmates became post-convic- view, at the agents. my testimony that of witnesses hearing tion statements sup- participants in this nefarious alliance February, several were made weeks ports this conclusion. was, Hestle, according which when trial, original At the related the Frazier first him. Frazier had contacted history petitioner. contacts with hearing at- At the four post-conviction he Hartman one He admitted that first met King torneys having Frazier and involved began in two before the trial months petitioner testi- gather information from the with places This Frazier’s first contact they there no Although stated that fied. earliest, February or petitioner, at the in late testimony and difference between Frazier’s March, early which when he and trial, they told what Frazier had them before King approached first the State they tell heard were unable to when first possibility might have he at trial. At the the facts to which testified concerning Nishiyama murder. am post-conviction hearing, Bobo admitted that truth convinced that the is found Assistant distinguish he was unable Attorney District General Hestle’s portions testimony that of Frazier’s had been that, trial, at the when contacted him meeting parts at the second and the revealed February Frazier had said that he deny come out later. He “may get” be able information about the “specifics” Frazier’s Nishiyama case and not that he “had” infor- point at a case. developed were late mation. further he had Hestle stated told prison Bobo testified that the second also time, Frazier at that providing informa- meeting produced about three statements “might help tion about the case him” with his showing petitioner’s in- from Frazier attempts parole. to obtain killing, volvement but Bobo could not Frazier testified that he went cell clarify were. All of the what statements occupied by King and least spoke attorneys to whom Frazier indicated daily, frequently, if more to 15 that, during their earliest conversations with days before the made com- him, very vague Frazier had been about what concerning opening ment the case. The first and that it knew about case came when the made an innocuous knowledge more comprehensive who had the deputy testify remark that a would sheriff of statements. him at for trial. Frazier that he related my testimony, it is upon opinion Based King the petitioner would “needle” about the proof in this does not record that, couple days” “a case of more finding de- that Frazier’s was remark, petitioner expressed his first petitioner rived made from statements some that he linked concern could be agents. At before the inmates became State driving patrol case had because he most, proof only petition- that the shows Nishiyama’s Kathy car near the area where King er made some statements and/or Finally, later, body day was so found. or they agreed to Frazier before work for petitioner made an state- It does not establish that Frazi- State. replied ment when he to Frazier’s remark solely separately er’s or based Nishiyama pretty good “seemed like upon those statements. girl” old the comment that “she wasn’t angel” boyfriend thought determining she of a her was. whether admission According it “about the confession or statement obtained violation right last time” that Frazier had talked with the to counsel contradiction harmless, that, response ques- to Frazier’s Massiah is it must be shown that tioning, beyond a the details of the error was harmless reasonable related 371, getting Wainwright, into v. 407 U.S. how tricked victim into doubt. Milton (1972); 2174, raped Chapman car and how he had 92 S.Ct. 33 L.Ed.2d 824, California, that he killed her. Frazier testified then v. S.Ct. (1967). 828, 17 question post-conviction hearing, L.Ed.2d 705 The Assistant Dis- Attorney Court determine is whether the ver trict Wade Bobo testified that be- actually “surely dict rendered unattri King fore either or Frazier would talk with butable” to the error. Sullivan v. Louisi “they get ... the State an informant’s ana, -, -, 508 U.S. 118 S.Ct. $1,000 something fee or before we would 2081, 124 L.Ed.2d 182 The State they to talk be able to them about it. Before proving bears the burden of that an error would converse with us about their conversa- passes Chap muster under this standard. just repeated, tion.” He “I ... know either man, 386 U.S. at 87 S.Ct. at 828. Based meeting at that [of time the first with Hestle upon almost reasonable version of the shortly thereafter, in late winter I 1983] relationship attorneys between the State’s $1,000 paid was made aware that had to be inmates, carry and the the State has failed to anything before either them would tell us this burden. they about the conversations had with Hart- Again, brought man.” when asked who had majority rejected petition

The has also subject $1,000 “reward,” up the Bobo argument process right er’s that his due to a stated, “Well, already we were aware that Brady Maryland, fair trial under 373 U.S. going to be one of the conditions before 1194,10 (1963), L.Ed.2d 215 they even—we were aware of that —I was Giglio v. United trip aware of that before that down there. (1972) was violated. $1,000 promised was aware that had to be majority acknowledges the State either Frazier or would even talk disclose, duty upon request, has a before things to us and one of the first that —as I may impeach Gig- be used to a witness. recall, lio, inquire— that both them wanted to 405 U.S. at 766. Infor $1,000 promised are we—are we concerning any agreement mation or under privilege to talk to us to talk standing reached between witnesses and the us, paid, already will it be [to] and we had rule, id., State must be disclosed under this give discussed that and we did them that agreements even evidence of that are not on point assurance.” At another in his testimo- quid pro quo Bagley Lump basis. See ny, again kin, (9th Cir.1986). Bobo made clear that both men 798 F.2d required money they before talk would even Monetary compensation given or a reward ‘Tes, to the State: talked —both of for the witness’s assistance in a ease falls yes, they kept them talked to us their under this rule of disclosure. Id. at 1301. about — end, only thing they as far as—that was the — contends that his money promise had to have the either before process due was violated fail- State’s them would talk to us.” Bobo confessed ure to inform his counsel that the 1,000 bucks, promised that “had we not $1,000 paid testimony. for Frazier’s Both them neither would have talked to us.” To majority the trial court and the of this Court significance money insist that there is $1,000 payment have found that the being King’s prison to delivered account King credibility was to immaterial Frazier’s deny rather than Frazier’s is to the realities rely upon as a witness. Both the fact that culture, culture, prison or even “outside” money paid entirely King’s the to ac- for that matter. they count. From this conclude that the payment had no relation to Frazier’s testimo- proof This shows that Frazier refused even ny require- and therefore does not meet the representative to talk to the State’s about the materiality ment of set forth in United States petitioner’s King statements unless received Bagley, speak That Frazier refused to $1000.00. 3383, 87 L.Ed.2d 481 provide any with or to information to the majority part payment This conclusion on the of the State until had to been made some ignores undisputed person seriously damaging clear and evidence in the third to his payment King credibility highly record that the I to and material. also con- $1000.00 prerequisite informing was the Frazier’s sider material once the State had petitioner’s agreed pay King plan the State of the statements. At to and the had been testify. him we would petitioner’s A. He assured record the incrimina devised to tory tape recorder to the statements Quillen [petitioner’s Q. you tell Mr. Did Bobo did Both not work. McCutchen any to this trial that prior time counsel] they had serious doubts testified agreement y’all had entered into credibility tape record Frazier’s that the go in through you in fact would Hestle was, way part, in a to the truth confirm you would in parole board front allegations. this infor of his All of fulness getting in try assist Frazier fact to Raven the materially have affected mation would prison? out Frazier’s and should credibility of n n n n n Hi supplied to under been Brady, Bagley. Giglio, principles No, Quillen didn’t Mr. that. A. we tell proba a my opinion, In “there is reasonable though get to That wasn’t incentive that, bility had the evidence been disclosed anyway, him us Hestle to talk to Mr. had defense, proceeding the result of the just him would tell assured that we therefore, different;” have been confi truth, would go parole board we would before petitioner’s outcome of dence that. I that. and we did did Bag undermined. United States fact, a letter on Frazi- McCutchen wrote ley, at 3383. appeared and Bobo as witness er’s behalf complains also proceeding. Both men- Frazier at that by him promises failed to inform State petitioner’s case. tioned his assistance attorneys testify on Frazier’s State’s fulfilling omission the State While the upcoming hearing behalf at an before the concerning prose- duties of disclosure its trial, parole At Frazier testified board. proceedings parole cutors’ efforts Frazier’s promise he received from reversal, might require itself inas- his State in return for made aware of Frazi- much as promise protection inmates. fellow parole hearing hopes his upcoming er’s any promise by Frazier denied the State light regard, when considered seeking although clemency, him in assist in this other omissions State’s part his Hestle admitted efforts on Frazier’s appearance failure to disclose and the but connection them and Hestle, denied deliberately using party, third testifying trial. Frazier’s technicality from the need to insulate itself post-conviction, The record on prosecu- was a violation of the for disclosure Attorney Pat shows that while District those rules obligation respect tors’ de- Bobo, McCutchen, assistant, his Wade signed protect rights of the accused. directly promise support did Frazier’s cross-examination, During Frazier’s clemency, had as- attempts to obtain Hestle misrepre- Frazier to prosecution also allowed him in Frazier that would sured concerning relationship sent the facts his appearance parole before the board. denied deals the State. Frazier Q. you guess told Snake I don’t [Bobo] when promise protection, other than prior you would trial that indirectly through Hes- promises, albeit parole his behalf appear on before tle, prosecution support him board, you, sir? parole He also did not board. before Mr. the one who A. believe Hestle is promised pay disclose that ele- him —I don’t the time did tell know testimony and denied for his $1000.00 involved, stage ment some that we—that any favors. When asked asking the State District Attor- he was convinced “at time” on cross-examination whether coopera- ney inform the of his would board McCutchen he had talked with either when Nishiyama and his tion “made writ- Bobo or Hestle trial. any tapes” of what he had ten memoranda them, my replied, “Not to Q. Frazier had Mr. have known told How would Hestle correct, technically knowledge.” While got you or General that unless light disingenuous in appallingly answer is McCutchen? knowledge both Frazier’s and the State’s attempt tape record the

statements. peti-

For these reasons I find

tioner’s conviction was obtained violation Fifth, rights

of his under the Sixth and Four-

teenth Amendments to the United States

Constitution and Article 9 of the Section

Tennessee Constitution and would vacate his

conviction as well as the sentence and re- guilt

mand this ease for a new trial as to both

and sentence. record, join Judge

For Cornelius in performance

his condemnation of the State’s

in this case. Tennessee, Appellee,

STATE of DUTTON, Appellant.

Steven E. Tennessee,

Supreme Court of

at Jackson.

March

Case Details

Case Name: Hartman v. State

Court Name: Tennessee Supreme Court

Date Published: Mar 6, 1995

Citation: 896 S.W.2d 94

Court Abbreviation: Tenn.