JON P. McCALLA, Chief Judge.
I. SUPREME COURT REMAND AND MANDATE 933
II. PROCEDURAL HISTORY 933
III. FACTUAL BACKGROUND 933
IV. CONE'S PETITION FOR HABEAS CORPUS ¶ THE BRADY CLAIM 935
V. THE WITHHELD INFORMATION 935
VI. THE TRIAL FOR THE MURDERS OF CLEOPATRA AND SHIPLEY
TODD ¶ FRIDAY, APRIL 16, 1982, THROUGH FRIDAY, APRIL 23,
1982 937
A. The Guilt Phase ¶ April 16, 1982 through April 20, 1982 938
1. Trial Day One: Friday, April 16, 1982, 8:30 a.m. to 6:25 p.m. 938
a. Opening Statements 938
b. State's Proof 939 (1) Aaron Hayes, Jr. Manager, Brodnax Jewelry 939 (2) Sue Schratz Employee, Brodnax Jewelry 941 (3) Songu Mize Customer, Brodnax Jewelry 942 (4) Richard "Randy" Mize Customer, Brodnax Jewelry 942 (5) CM. "Mike" Stovall Memphis Police Department ("MPD") Criminal Investigation Division 944 (6) Bert Allen 3 MPD Motorcycle Squad Officer shooting victim 946 (7) Barbara Benbrook neighborhood resident, eyewitness 948 (8) Deborah Stanford neighborhood resident, eyewitness 949 (9) John Douglas ("Doug") Clark eyewitness, shooting victim 949 (10) Charles Slaughter neighborhood resident, eyewitness 951 (11) Debbie Howell Slaughter's daughter, eyewitness 952 (12) Richard K. Wilson MPD Homicide Investigator 952 2. Trial Day Two: Saturday, April 17, 1982, 9:00 a.m. to 5:05 p.m. 952 a. State's Proof, continued 952 (1) Richard K. Wilson, continueda 952 (2) Herschel Dalton neighborhood resident; victim, at tempted-carjacking 953 (3) Lucille Tuech neighborhood resident; victim, attemptedhome invasion 954 (4) Velora Hargett friend of Cleopatra Todd 955 (5) Gregory W. Moore Todds' grandson 956 (6) Paul Adams Todds' neighbor, called police to Todds' house 956 (7) Mary Maguire Todds' neighbor 957 (8) Steven R. Cole MPD Officer, first on scene at Todds' house 957 (9) Marjorie Todd Moore daughter of Shipley Todd, step-daughter of Cleopatra Todd 958 (10) Wayne A. Todd Todds' grandson 959 (11) James Spencer Bell, M.D. Chief Deputy Shelby County Medical Examiner; Deputy Chief State of Tennessee Medical Examiner; expert in pathology 959 (12) Ruth Shreve victim, license plate theft 961 3. Trial Day Three: Monday, April 19, 1982, 10:45 a.m. to 6:45 p.m. 961 a. State's Proof, continued 961 (1) Jimmy Hammers MPD Officer, Violent Crimes Bureau 961 (2) C.J. Harrell MPD Crime Scene Squad 965 (3) John Birdsong MPD Tactical Unit 965 (4) Thomas Dwight Smith MPD Officer 965 (5) Joe Sanders MPD Crime Scene Squad 966 (6) Paulette Sutton Employee, Univ. of Tenn. Toxicology Laboratory; Forensic Serology Expert 967 (7) R.L. Hannah MPD Crime Scene Squad 969 (8) Sgt. Ralph L. Roby MPD Violent Crimes Bureau 970 4. Trial Day Four: Tuesday, April 20, 1982, 10:50 a.m. to 6:00 p.m. 974 a. State's Proof, continued 974 (1) Merny Miller Keeper of Records, Illinois Bell 974
(2) Michael P. Malone FBI, Microscopic Analysis Unit (hair and fiber) 975 (3) Jerry McElrath MPD Latent Fingerprint Squad 976 (4) James L. Holder MPD latent fingerprint examiner; fingerprint identification expert 976 b. Defense Proof 976 (1) Valeree Cone Cone's mother 976 (2) Dr. Matthew Jaremko expert in clinical psychology 978 5. Trial Day Five: Wednesday, April 21, 1982, 10:35 a.m. to 9:00 p.m. 978 a. Defense Proof, continued 978 (1) Jonathan J. Lipman, Ph.D. neuropharmacologist; expert on effects of drugs on the human body 978 b. State's Rebuttal 981 (1) Ilene Blankman Cone's friend, former drug-user 981 6. Trial Day Six: Thursday, April 22, 1982, 8:35 a.m. to 7:55 p.m. 982 a. State's Rebuttal, continued 982 (1) Eugene Flynn FBI Agent 982 (2) Ralph L. Roby MPD 983 (3) Ben Bursten forensic psychiatrist, Midtown Mental Health Center 984 (4) John Robert Hutson clinical psychologist; clinical director, Midtown Mental Health Center 984 b. Guilt-Phase Closing Arguments 985 c. Jury Instructions 992 7. Trial Day Seven: Friday, April 23, 1982, 8:40 a.m. to 4:15 p. m. 994 a. Jury Instructions, continued 994 b. Jury Verdict 994 B. The Penalty Phase ¶ April 23, 1982 995 1. Opening Arguments 995 2. State's Proof 995 a. J.A. Blackwell Criminal Court Clerk for Shelby County 995 b. MPD Officers James L. Holder, CM. Stovall, Bert Allen, and Jimmy Hammers 996 3. Defense Proof 996 4. Penalty-Phase Closing Arguments 996 5. Jury Instructions 996 6. Jury Verdict 996 VII. LEGAL ANALYSIS 997 A. The Brady Standard 997 B. Consideration of the Withheld Information 998 C. Cone's Drug Use and Mental State 999 1. Roby, LETS teletypes, Sue Cone, and the MPD Supplemental Offense Report 1000 2. Eyewitness Evidence of Cone's Demeanor 1003 a. Statements of Charles and Debbie Slaughter 1003 b. Statement of Robert McKinney; Stepherson's Big Star Robbery 1006 c. Pompano Beach Police Department Supplement 1008 3. Flynn and the FBI Records 1009 4. Ilene Blankman 1011 5. Source of Money 1013 D. Cumulative Effect 1015 VIII. CONCLUSION 1019 APPENDIX OF EXHIBITS A-1
This cause is presently before the Court on remand from the United States Supreme Court to address Petitioner Gary Bradford Cone's Brady claim in his habeas corpus petition. See Cone v. Bell, 556 U.S. 449, 476, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). (Electronic Case Filing ("ECF") No. 221; see ECF No. 71 at 12-17.) The parties briefed the issue of the scope of the mandate. (ECF No. 234; ECF No. 235; ECF No. 239; ECF No. 240.) On June 3, 2010, the Court held "that the mandate is to determine whether there is a `reasonable probability' that, had the evidence identified in paragraph 39 of Cone's habeas petition been disclosed, `the result of the [sentencing] proceeding would have been different.'" (ECF No. 242 at 8.) See Cone v. Bell, No. 2:97-CV-2312-JPM, 2010 WL 2270191, at *4 (W.D.Tenn. June 3, 2010). The question for consideration, as articulated by Justice Stevens for the majority, is "whether the suppressed evidence might have persuaded one or more jurors that Cone's drug addiction — especially if attributable to honorable service of his country in Vietnam — was sufficiently serious to justify a decision to imprison him for life rather than sentence him to death." Cone, 556 U.S. at 475, 129 S.Ct. 1769.
The procedural background of Cone's case prior to the Supreme Court's remand is outlined in the Supreme Court's opinion. See Cone, 556 U.S. at 457-64, 129 S.Ct. 1769. After the remand, a status conference was held on January 5, 2010. (ECF No. 228.) On January 28, 2010, Cone filed a notice of withheld exculpatory information. (ECF No. 230.) Respondent filed the state court record on January 28, 2010. (ECF No. 231; ECF No. 232; ECF No. 233.) On June 3, 2011, Respondent Roland Colson filed a Motion for Summary Judgment and supporting memorandum. (ECF No. 264; ECF No. 265.) Also on June 3, 2011, Cone filed a Motion for Relief on Brady Claims and supporting memorandum. (ECF No. 266; ECF No. 266-1.) On August 2, 2011, Cone filed his Response to Respondent's Motion for Summary Judgment (ECF No. 268), and Respondent filed his Response to Cone's Motion for Relief on Brady Claims (ECF No. 269). On September 2, 2011, Cone filed a Reply to further support his Motion for Relief. (ECF No. 271.)
On January 4, 2012, the Court ordered Respondent to supplement the state court record by manually filing the original trial exhibits and electronically filing an index clearly identifying each trial exhibit accompanied by a good quality digital photograph. (ECF No. 275 at 2.) On March 26, 28, and 29, 2012, Respondent filed the available original exhibits and corresponding digital photographs. (ECF No. 279; ECF No. 283-ECF No. 291.) Respondent filed a second supplemental notice of filing on September 19, 2012, with a copy of the trial court's jury instructions. (ECF No. 319.)
The United States Court of Appeals for the Sixth Circuit summarized the relevant facts as follows:
Cone v. Bell, 243 F.3d 961, 965 (6th Cir. 2001), rev'd, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Cone was tried in the Shelby County Criminal Court and found guilty on two counts of first-degree murder and murder in the perpetration of a burglary; assault with intent to commit murder in the first degree for the attacks on Allen, Clark, and Dalton; and robbery with a deadly weapon for the jewelry store robbery. Id. at 965-66.
The Tennessee Supreme Court summarized the mitigating evidence presented at trial as follows:
State v. Cone, 665 S.W.2d 87, 91-92 (Tenn. 1984) (footnote omitted). Cone was sentenced to ten to twenty-five years imprisonment for the assaults, life imprisonment for the robbery, and death for the murder charges. Cone, 243 F.3d at 966.
On July 1, 1997, Cone filed a habeas petition challenging his convictions. (ECF No. 71.) In paragraph 39 of Cone's habeas petition, he alleged a Brady claim:
(Id. ¶ 39, at 12.) Cone alleged that documents in the district attorney's ("DA") and Federal Bureau of Investigation's ("FBI") files show that he was a drug user and on drugs at the time of the murders. (Id. ¶ 39(a)-(h), ECF No. 71-5 to -17.)
Cone filed the following documents as the withheld exculpatory evidence relevant to his Brady claim:
The State was represented by Assistant Attorney Generals Don Strother and Joseph L. Patterson. Cone (also known as Gerald Mason Harmon) was represented by John Dice and April Ferguson. The Honorable James C. Beasley was the presiding trial judge.
Voir dire was conducted on April 12-15, 1982, and the jury was sworn at 3:00 p.m. on April 15, 1982. (See ECF No. 231-4 at 3-18; ECF No. 231-10 at 852.) The trial began on Friday, April 16, 1982, at 8:30 a.m. (See ECF No. 231-10 at 940.) The day began with the reading of the indictments: Indictment No. 74702 charging "murder first degree ... during the perpetration of a burglary and murder first degree of Cleopatra Todd (see ECF No. 231-1 at 2-5); Indictment No. 74703 charging murder first degree during the perpetration of a burglary and murder first degree" of Shipley Todd (see id. at 2, 6-8); Indictment No. 74898 charging assault with intent to commit murder in the first degree on Herschel Dalton (see id. at 11-13); Indictment No. 74899 charging assault with intent to commit murder in the first degree on C.B. Allen (see id. at 11, 14-15); Indictment No. 74900 charging assault with intent to commit murder in the first degree on Douglas Clark (see id. at 11, 16-17); and Indictment No. 74902 charging robbery with a deadly weapon on the person of Aaron Hayes, Jr., for the
The State presented thirty-five witnesses during the guilt phase of trial from April 16-20, 1982. (See ECF No. 231-4 at xviiii-vxx.) The defense case began on April 20, 1982, and included the presentation of three witnesses. (See id. at xxv-xxvii.) From April 21 to 22, 1982, the State presented five rebuttal witnesses. (See id. at xxvii-ixxx.) Final arguments were heard in the guilt phase on April 22, 1982. (See id. at ixxx.) On April 23, 1982, at 8:50 a.m., the jury retired for deliberations, and less than two hours later at 10:32 a.m., the jury advised that they had reached a verdict. (See id. at xxx; see also ECF No. 232-8 at 2101-03.)
The sentencing phase began after the guilty verdict on April 23, 1982, with both sides making opening statements. (See ECF No. 232-9 at kk, 2112-19.) The State presented five witnesses. (See id. at kk.) Cone's attorneys presented no evidence at the sentencing phase of trial and relied on mitigating circumstances presented in the guilt phase. (See id. at 2115-19, 2144.) The jury retired for deliberations at 3:05 p.m., and forty-five minutes later at 3:50 p.m., advised the court that a sentencing verdict had been reached. (See ECF No. 231-4 at xxxii; ECF No. 232-9 at 2150.)
The first day of trial began at 8:30 a.m. on Friday, April 16, 1982. (See ECF No. 231-10 at 940.) Strother presented the State's opening statement in which he outlined a series of events occurring slightly after noon on August 9, 1980, and continuing until August 10, 1980, including: the robbery of the Brodnax Jewelry Store, the police chase, the shooting of police officer Bert Allen, the shooting of bystander Doug Clark, the assault on Herschel Dalton, the encounter with Lucille Tuech at her apartment door, and the murders of Cleopatra and Shipley Todd. (See id. at 944-50.)
In Cone's defense, Dice presented the opening statement and outlined the evidence he would present about Cone's background including the fact that he came from a military family, served in Vietnam, graduated with high honors from the University of Arkansas, and that he was a "changed person," "a junkie, a drug addict" when he returned from Vietnam. (Id. at 950-53, 958-60.) Dice asserted that Cone "suffers from a disease known as amphetamine psychosis" and that he was "a drug addict and a junkie of such unbelievable proportions that it would have been impossible for him to form any intent, much less the cool and clear and deliberated [intent] that he is charged with in the commissions of these crimes." (Id. at 957.) Dice asserted that Cone suffered from "a syndrome called Vietnam Veterans Syndrome." (Id. at 957-58.) Dice posed the question: "Is Mr. Gary Bradford Cone a person who was capable of forming the intent called for in the commissions of the crimes with which he is charged[?]" (Id. at 960-61.)
Dice acknowledged that some of the prosecutor's facts were "true and correct": "My client, Gary Cone, entered a store known as Brodnax in Poplar Plaza. My client robbed that store. My client was pursued by an officer in an unmarked police car. At that point, certainly an exchange of gunfire took place between Officer Allen and between my client." (Id. at
Dice acknowledged that,
(Id. at 963.)
Dice posed the question of whether Cone was "the clever criminal" that Strother had described or "whether a person [like Cone] with a known record" would have left a "clear trail" by leaving fingerprints and calling his sister from the Todds' home. (Id. at 964.) Dice stated, "Again, I must respectfully say to you that we admit that we killed the Todds. We deny, under our law, that we murdered them. That's the position of the Defense." (Id.) Dice argued that Cone "had to be out of his mind to have done the things he did." (Id. at 965.) Dice posed the question, "whether deterrence, whether capital punishment stops the action of the man with one drink too many, much less the junkie, much less the alcoholic[?]" (Id. at 966.) He finished his opening statement by asking the jury "to look at the whole man in this case, and all of the proof." (Id.)
The State began its proof on the first day of trial, April 16, 1982, with the testimony of Aaron Hayes, Jr., the manager of the Brodnax Jewelry Store. (See ECF No. 231-11 at u, 973.) Hayes testified that he was working at approximately 12:45 p.m. on Saturday, August 9, 1980. (See id. at 973-74.) Hayes testified about what happened:
(Id. at 974-76.) Hayes gave Cone the watches, and he put them in his jacket pocket. (See id. at 976.) Hayes continued,
(Id.) Hayes recalled Cone saying "something to the effect that it was either nice shopping on Saturday, or nice shopping at Brodnax on Saturday." (Id. at 989.)
Hayes followed Cone and saw him get into an older, faded, gray/green color, Oldsmobile Cutlass and drive off towards Highland Avenue and Walnut Grove. (See id. at 977-78.) Cone had parked about half a city block away from the store, in a manner so he could just pull out. (See id. at 978, 988.) Hayes enlisted two men coming from the nearby David's Home Fashions store to follow Cone's car. (See id. at 977-78.) They proceeded down Highland toward Summer Avenue, but they did not see the car. (See id. at 978.)
Before Hayes left the store, he alerted the store personnel to call the police, and, when he returned to the store, Hayes gave the police a description of the car. (See id.) He described the robber as
(Id. at 979.) Hayes noticed that the robber had a bandage on one of his fingers. (See id.)
Patterson presented Hayes with three pictures — one of the outside of the Brodnax store and two of the inside of the store. (See id. at 979-80.) Hayes identified the pictures as true and accurate pictures of the store as it appeared on August 8, 1980, and the three pictures were introduced collectively and entered as State's Exhibit 1 (ECF No. 284-1 to -2). (See ECF No. 231-11 at 979-80.)
Patterson presented Hayes with a picture of an automobile, and Hayes testified that the automobile was similar to the one that he saw the day of the robbery. (See id. at 980-81.) The picture was entered into evidence as State's Exhibit 2 (ECF No. 284-3). (See ECF No. 231-11 at 981.)
Patterson presented Hayes with three sheets of photographs of watches and rings. (See id. at 982.) Hayes testified that the photographs were of the stolen merchandise and that all the merchandise was returned to the store. (See id.) These three sheets were entered as State's Exhibit 3 (ECF No. 284-4 to -6). (See ECF No. 231-11 at 982-83.) The total value of the jewelry taken in the robbery was around $112,000. (See id. at 984.)
After the incident, Hayes went to the police station and identified a photograph as someone who "[l]ooks similar" to the person who robbed the store. (See id. at 985.) He made a notation on the photograph. (See id.) The beard of the person in the picture looked much heavier than the robber's beard, and the robber's hair was a bit thinner. (See id. at 985-86.) The photocopied photographs that Hayes viewed and identified on the day of the robbery were entered as State's Exhibit 4 (ECF No. 284-7 to -9). (See ECF No. 231-11 at 986.) Hayes also viewed a group of eight photographs, identified one of the photographs as the robber, and marked the back of that photograph. (Id. at 986-88.) Those photographs were entered as State's Exhibit 5 (ECF No. 284-10 to -13). (See ECF No. 231-11 at 987.)
On cross-examination, Dice asked Hayes, "is it fair for me to say that at one time you made a statement that the person, whoever he was, who robbed you was sweating quite a bit" to which Hayes responded, "Yes, sir." (Id. at 995.) On redirect examination, Hayes testified that it was very hot on the day of the robbery. (See id.)
The second witness called on the first day of trial was Sue Schratz, a Brodnax employee who was working on the day of the robbery. (See id. at 996-97.) She was waiting on two customers when she noticed her manager Aaron ("Ronnie") Hayes "started showing rings and he was throwing them out on the counter.... He was throwing them out, one at a time, until... the person told him to put the tray out and lay them on the counter." (Id. at 997-98.)
The State's third witness was Songu Mize, a customer at Brodnax during the robbery. (See id. at 1005-06.) Songu Mize and her husband went to Brodnax on August 9, 1980, around noon to pick up their wedding bands. (See id. at 1006.) She described the events as follows:
(Id. at 1006-07.) Songu Mize testified, "He was talking softly, though, quietly, but I could hear him because he was right next to me." (Id. at 1007.) After he told her not to leave,
(Id. at 1007-08.)
Songu Mize described the robber: "He was a young person, 30, 35 probably. Not too tall. Not heavy at all, slim, probably,... [h]ad a beard, a mustache. Was wearing gray/green suit, or jacket and pants, and plaid shirt. He had sandy brown hair." (Id. at 1007.) She testified that State's Exhibit 6 (ECF No. 284-15) looked like the suit that the robber was wearing and that he had a bandage on one of his fingers. (See ECF No. 231-11 at 1008-09.) At trial, Songu Mize stood in front of Cone and stated that he looked like the robber, but "he's a lot heavier." (Id. at 1009-11.) The defense did not cross-examine Songu Mize. (See id. at 1013.)
The State's fourth witness was Richard ("Randy") Mize, Songu Mize's husband and a customer at Brodnax during the
(Id. at 1014.)
Richard Mize was standing three or four feet away on the same side of the counter when he first noticed the robber, and "as the events were transpiring, [the robber] went around to the other side of the counter." (Id. at 1015.) Richard Mize testified that the robber was
(Id.) Richard Mize testified that it was August in Memphis and "very hot." (Id. at 1015-16.) Richard Mize could not make a positive identification in the courtroom. (See id. at 1017.)
(Id. at 1016.) Mize identified the clothes in State's Exhibit 6 (ECF No. 284-15) as the robber's clothing. (See ECF No. 231-11 at 1016.)
Mize saw the robber's gun while they were in the store. (See id.)
(Id. at 1016-17.)
On cross-examination, Dice asked Richard Mize if he made the statement, "It's hot as blazes in Memphis in August." (Id. at 1018.) Mize responded that he said something like that. (See id. at 1019.) Dice verified that Mize had stated that the robber was sweating profusely. (See id.) Dice addressed whether Richard and Songu Mize were together when the robber showed his weapon. (See id. at 1020.) Richard Mize testified that he did not believe that his wife saw the weapon until after she had left the store. (See id.)
After a lunch recess on the first day, the fifth witness, C.M. ("Mike") Stovall with the MPD's Criminal Investigation Division, South Precinct, was called to testify. (See id. at 1027-28.) On August 9, 1980, around 1:00 p.m., Stovall heard a broadcast concerning the armed robbery of the Brodnax Jewelry Store. (See id. at 1028.) The broadcast described a "greyish/green Oldsmobile, with a male white responsible." (Id. at 1029.) The individual was "dressed in a green suit, had a beard and glasses." (Id.) Stovall heard the broadcast and headed east toward the store in his Chevelle unmarked cruiser. (See id. at 1028-29, 1031.)
(Id. at 1029-34.) Stovall heard gunshots when he jumped out of his car and was running toward Cone's car; he was behind a garage at the time. (See id. at 1035.) Stovall lost his radio at some point during the chase and went back to the motorcycle and radioed for help. (See id. at 1036.) He stayed by the suspect's car to protect the scene. (See id. at 1042.) The motorcycle officers were in the area, and the helicopter was above. (See id.) Stovall never fired his weapon. (See id. at 1043.)
The State's sixth witness was MPD Motorcycle Squad Officer Bert Allen. (See id. at 1053.) On August 9, 1980, between 1:00 and 1:30 p.m., Allen heard a broadcast concerning a chase in midtown Memphis. (See id. at 1053-54.) Allen intercepted the chase which was proceeding in his direction down Poplar Avenue. (See id. at 1054.) At Poplar and either Auburndale or Hawthorne, Allen saw an unmarked police cruiser against the curb. (See id.) He saw a light green Oldsmobile that fit the description of the vehicle being pursued. (See id.) Allen joined in the pursuit which at that time was proceeding at speeds around fifty miles an hour. (See id. at 1054-55.)
When Allen made the last turn, he could not see the Oldsmobile, only the tail lights, and the police cruiser. (See id. at 1055.) He saw the cruiser's brake lights, and he began to slow down and look for the Oldsmobile. (See id.) Allen passed a driveway and saw movement on his left. (See id.) The Oldsmobile was sitting there, and a "male white" was getting out. (See id.) Allen put down the kickstand on his bike and jumped off to chase the suspect on foot. (See id.) Allen described the foot pursuit as follows:
(Id. at 1056-57.) Allen testified that "the only thing that would keep [the suspect] in this small enclosed area there between two garages would be a short picket fence, maybe two and a half feet tall." (Id. at 1058.) Allen said the fence would have been easy to step over, but the suspect was "just standing there, appeared to be waiting on me." (Id.)
Allen saw the suspect when he was running southbound on either Hawthorne or Idlewild. (See id. at 1064.) That is when Allen heard another single gun shot. (See id.) At this time, Allen was hurting, but he chased the suspect as far as he could. (See id.) Other officers were arriving on the scene, and Allen "just sat down and finally got into the back seat of one of the squad cars" and was transported to the hospital. (Id.) Allen was shot in the left hip. (See id.) The bullet ricocheted off his pelvic bone and exited from his left buttock. (See id.)
Allen drew a rough diagram of the car, fences and garage, where the shots were fired, and where he was shot. (See id. at 1058-63.) The diagram was entered as State's Exhibit 12 (ECF No. 284-24) for demonstrative purposes. (See ECF No. 231-11 at 1070.) Allen also pointed out where the suspect exited his car and ran down the driveway, past a few garbage cans by the garage. (See id. at 1059-60.) Five of Allen's bullets went into the garage. (See id. at 1062, 1074.)
Allen testified that State's Exhibit 9 (ECF No. 284-20) was a photograph of the automobile that the suspect was driving which was parked in the driveway where Allen began the foot pursuit. (See ECF No. 231-11 at 1064-65.) His motorcycle was in the background of the photograph. (See id. at 1065)
Allen identified a photograph of the area where the shots were fired including a picture of a picket fence; the photograph was entered into evidence as State's Exhibit 10 (ECF No. 284-21). (See ECF No. 231-11 at 1065, 1071.) Allen marked the location where he was shot as "O" and the suspect's location at that time as "S." (See id. at 1066.)
Allen described the suspect as "a male white, with more or less shoulder length hair." (Id.) He was wearing a plaid shirt and "looked like he hadn't shaved in a while." (Id.) Allen testified that he had previously seen the photographs in State's Exhibit 5 and picked out a photograph of the suspect. (See id. at 1067.) Allen identified the photograph, initialed it, dated it, and put the time on it. (See id.)
Allen identified a pair of trousers that he was wearing at the time he was shot and the bullet's entrance and exit holes. (See id. at 1067-71.) The trousers were entered into evidence as State's Exhibit 11 (ECF No. 284-22 to -23). (See ECF No. 231-11 at 1070.)
On cross-examination, Dice pointed out that Allen was "basically" a traffic enforcement officer. (See id. at 1073.) Dice verified that Allen made a statement that he saw "a male white come staggering out of the driveway where the suspect had run, holding his stomach."
Allen testified that the MPD had a policy that an officer could use deadly force on a fleeing felon. (See id.) He testified that he took his gun from the holster to use it "[i]f need be." (Id.) Allen testified that the fence in State's Exhibit 10 (ECF No. 284-21) played no role in the shooting incident. (See ECF No. 231-11 at 1078-80.) He stated that a continuation of the fence in the picture was the fence that he and the suspect went over. (See id. at 1080)
The State's seventh witness, Barbara Benbrook, lived at 230 Hawthorne, Apartment 4, approximately six houses north of Poplar Avenue in August, 1980. (See id. at 1083.) The address is on Hawthorne, between Poplar and Lawrence. (See id. at 1084.) Auburndale is the next street to the west. (See id.) On August 9, 1980, between 1 and 2 p.m., Benbrook was sunbathing on the terrace on the second level between the two apartment buildings. (See id.) Benbrook described what she saw that afternoon:
(Id. at 1085-86.) Benbrook and her neighbor went to the window and saw someone running from the hedge towards their building. (See id. at 1086.) She described the man as "sort of hippie looking [with] long hair, ... horn rimmed glasses, a full beard, and — not very tall, maybe 5'8"", unkempt, and running very quickly. (Id.)
After Benbrook and her neighbor saw the suspect come towards the building, they went to Debbie Staggs's apartment because it was in the front of the building. (See id. at 1087.) They looked out her front window and saw a policeman limp across the sidewalk and fall in the grass. (See id.) Soon thereafter, they saw their neighbor Doug Clark lying in his front yard. (See id. at 1087-88.)
Benbrook looked at two sets of photographs at a MPD station. (See id. at 1088.) One group of photographs depicted
On cross-examination, Benbrook explained her comment that Cone was "hippie" looking in his appearance. (Id. at 1092-93.) She stated that she meant he had "extremely long hair as in shoulder length or a little bit longer" and a full beard. (Id. at 1093.) She testified that the trial was the third time that she had seen the pictures, and she did not recall initialing them when she first saw them. (See id. at 1093-94.)
The State's eighth witness was Deborah Stanford (formerly Deborah Staggs), who lived at 230 Hawthorne, between Poplar and Lawrence, in August of 1980. (See id. at 1095-96.) Stanford was the neighbor who was sunbathing with Benbrook on the afternoon of August 9, 1980. (See id. at 1096.) She testified:
(Id. at 1096-97.) She described the man they saw as "mid-twentyish — white, longish hair, medium height — medium build, had on an open shirt, not buttoned, and shorts." (Id. at 1097.) She stated,
(Id. at 1098.) As the man went toward the rear of the apartment, Stanford heard "a couple more shots." (Id.) She saw her neighbor Doug Clark lying in the front yard a little while later. (See id.) Stanford could not identify Cone at trial as the person she saw that day. (See id. at 1099.)
The State's ninth witness was John Douglas ("Doug") Clark. (See id. at 1100.) Clark was visiting relatives who lived on Hawthorne on August 9, 1980, around 1 p.m. when he heard a commotion. (See id. at 1100-01.) He testified:
(Id. at 1101.) The cars went north on Hawthorne. (See id. at 1101-02.) Clark went back to where the first car pulled into the driveway to see if it had hit a parked car. (See id. at 1102.) Clark stated:
(Id. at 1102-03.) When Clark went behind the house and picked up the jug,
After Clark was shot, he walked back to the front of the yard to try to get away from the man. (See id. at 1105-06.) As a result of the shooting, Clark had a shattered knuckle in the center of his left hand and had to have approximately two feet of small intestine resected. (See id. at 1106.) Additionally, his right external iliac artery had to have a graft. (See id.) The bullet remained in his body, against his pelvic bone. (See id.)
Clark identified three photographs, which were entered as State's Exhibit 15 (ECF No. 285-1): (1) his brother's house at 224 Hawthorne; (2) a grape juice jug that Clark picked up; and (3) the front yard of the house north of his brother's house, with the mat on which Clark was placed after he was shot. (See ECF No. 231-11 at 1106-07.) Clark identified two photographs as the back yard of the house north of his brother's house "probably from the view that the man that shot me had" and the same backyard from the spot where Clark was standing. (Id. at 1107.) These photographs were entered into evidence as State's Exhibit 16 (ECF No. 285-2 to -3). (See ECF No. 231-11 at 1107.) Clark marked an "X" on the photo where he was
Clark identified an aerial photograph of Hawthorne, Auburndale, and another street, which was entered as State's Exhibit 17 (ECF No. 285-4 to -6). (See ECF No. 231-11 at 1108-09.) On this picture, Clark noted the location of the shrubbery, where the car pulled up, and the driveway he went down prior to being shot. (See id.)
Clark identified gym shorts, socks, tennis shoes, and the T-shirt that he was wearing that day. (See id. at 1110-11.) The gym shorts were entered as State's Exhibit 18 (ECF No. 285-7 to -8). (See ECF No. 231-11 at 1111.) Clark pointed out the blood on the shorts and the hole that resulted from the bullet going through them. (See id.)
On cross-examination, Dice clarified that Clark witnessed the chase on two different occasions on the same day. (See id. at 1113.) Clark explained that the jug was in the yard, and that he picked it up about halfway through his run. (See id. at 1114.) When Clark saw the man, Clark said something to him, and "that was the confrontation." (Id.) Clark had the jug in his hand at that time. (See id. at 1115.) He was face to face with the man "a couple of seconds" before being shot; the man "seemed to be in control." (Id. at 1115-16.)
The State's tenth witness was Charles Slaughter, who lived in a townhouse at 143 North Auburndale, between Poplar and Madison. (See id. at 1117, 1119.) He was at his house on August 9, 1980, between 1 and 2 p.m., working on his daughter's car. (See id. at 1117-18.) He saw a white male come down the driveway "dressed in shorts, with no shirt, and he had a — some type of garment draped across his right hand." (Id. at 1118.) The man was walking briskly. (See id.) Slaughter testified that the man "wore glasses, and that kind of struck me that the glasses were clear lens and — I don't know, I picked up on the glasses for some reason." (Id. at 1122.)
Patterson showed Slaughter a group of seven photographs. (See id. at 1118-19.) Slaughter testified that he had previously been shown these photographs, that he identified one photograph as depicting the man that came through the alley or driveway, and that he signed his initials on the back. (See id. at 1119-20.) The photographs were entered into evidence as State's Exhibit 19 (ECF No. 285-9 to -11). (See ECF No. 231-11 at 1120.)
Patterson presented Slaughter with an aerial photograph of the area south of Poplar near St. Peter's Home for the Elderly. (See id.) Slaughter identified his driveway on the aerial photograph. (See id.) The photograph was entered into evidence as State's Exhibit 20 (ECF No. 285-12 to -15). (See ECF No. 231-11 at 1121.) Slaughter marked the path that the man took. (See id. at 1121-22.)
On cross-examination, Slaughter described the man he saw that day as follows:
(Id. at 1123-24.)
The eleventh witness presented was Debbie Howell (formerly Debbie Slaughter and now Debbie Slaughter-Crawford), Charles Slaughter's daughter. (See id. at 1127.) She was visiting her father between 1 and 2 p.m. on August 9, 1980. (See id.) She testified that she saw a white man wearing "cut-offs" and "something draped over his right hand" come through the complex. (Id. at 1127-28.) The man was not wearing a shirt. (See id. at 1128.) She stated that later that day, the police came, and she had the opportunity to view a paper and make an identification of the man who came through the alley. (See id.) The paper with Debbie Howell's identification of the man in the alley was entered into evidence as State's Exhibit 21 (ECF No. 285-16 to -17). (See ECF No. 231-11 at 1128-29.) The defense did not cross-examine Debbie Howell. (See id. at 1129.)
The State's twelfth and final witness on the first day of trial was Richard K. Wilson, a twenty-four year employee of the MPD with fifteen years experience as a homicide investigator. (See ECF No. 232-1 at 1130, 1138.) Wilson identified a .38 caliber spent slug and a lead, large caliber slug that were found inside the garage at 242 North Auburndale and entered into evidence as State's Exhibits 22 and 23 (ECF No. 285-18 to -19; ECF No. 285-20), respectively. (See ECF No. 232-1 at 1130-32.) Patterson's intention was for Wilson to testify solely for the purpose of identifying the bullets in evidence, however Dice's cross-examination was more indepth. (See id. at 1152.) The court recessed at 6:25 p.m. and Wilson's testimony continued on the following day, Saturday, April 17, 1982. (See id. at 1135.)
The second day of trial began at 9:00 a.m. on April 17, 1982. (See id.) On cross-examination, Wilson testified that he was assigned to the Security Squad, which consisted of five detectives that investigated police shootings. (See id.) Wilson testified that he filled out a supplementary offense report in Cone's case. (See id. at 1136.) He agreed with defense counsel that these reports included the notes of officers on the scene, that they were dictated, and that the officer reviewed the report and signed it to indicate that the document had been read and reviewed. (See id. at 1136-37.) Wilson testified that he reviewed an offense report in Cone's case, and to the best of his knowledge, it was true and correct. (See id. at 1137.) Wilson identified the report that he compiled on August 9 and 10, 1980. (See id.) Wilson admitted that he did not interview Benbrook, but that the report included a statement allegedly made by her. (See id. at 1144-45.) Wilson testified that the report included a statement from Allen about the chase and shooting and that Wilson interviewed the Slaughters at 8:45 p.m. (See id. at 1147-48.) Wilson testified that the supplementary offense report was put in the attorney general's file at a certain stage of the case and that the report would have been in their files for many months. (See id. at 1149.)
On re-direct, Wilson testified that the first page of the six-page report was taken right after Allen was shot and was in the hospital. (See id. at 1149-50.) Wilson took a statement from Allen on Wednesday, August 13, 1980. (See id. at 1150.) Wilson stated that the shoes in State's
On re-cross, Dice verified that the report stated that "[t]here was an entrance hole on the left side of the pants, with no exit hole in the pants." (Id. at 1156.) Wilson admitted that the second statement taken by Allen was part of the offense report. (See id. at 1167.)
The State next called Herschel Dalton, who lived at 143 North Evergreen, to testify. (See id. at 1187.) Dalton described the events on the afternoon of August 9, 1980, as follows:
(Id. at 1187-90.)
Dalton was presented with five photographs of his residence, automobile, and driveway as they existed on August 9, 1980, which were identified and entered into evidence as State's Exhibit 24 (ECF No. 285-21 to -23). (See ECF No. 232-1 at 1190-93.) Dalton identified a photograph, which was entered as State's Exhibit 25 (ECF No. 286-1 to -3), that showed Evergreen Street and the back yard of the houses on Belvedere including his house. (See ECF No. 232-1 at 1193-94.) Dalton marked "HD" on State's Exhibits 20 and 25 (ECF No. 285-13 to -14; ECF No. 286-2 to -3) to show his house. (See ECF No. 232-1 at 1194-95.)
Looking at State's Exhibit 19 (ECF No. 285-10), Dalton testified that he could not narrow his identification beyond two photographs, Numbers 3 and 6. (See ECF No. 232-1 at 1196.) He wrote on the back of both of those photographs (ECF No. 285-11). (See ECF No. 232-1 at 1197.) Dalton identified Cone in the courtroom as the person who approached him on August 9, 1980. (See id. at 1197-98.) On cross-examination, Dalton testified that the Number 6 photograph stood out from the others because of its color. (ECF No. 285-10; see ECF No. 232-1 at 1203.)
Next, the State called Lucille Tuech, who on August 10, 1980, lived in a twelve-unit dwelling on Belvedere. (See ECF No. 232-1 at 1205.) Tuech described what happened about 8:30 a.m. (See id.)
[H]e had long, scraggly brown hair, and a two-week — about a two-week growth of beard.
(Id. at 1205-07.) There was a hooked screen door between Tuech and the man. (See id. at 1207.) When he pulled the gun, he pointed it at her stomach. (See id.) Tuech stated, "He didn't say a word; he just stared at me and I just stared at him for a couple seconds and I just banged the door shut — as quick as I could." (Id.) She ran into the other part of the house and collapsed on the floor. (See id. at 1208.) After about a minute, she called the police. (See id.)
Tuech marked State's Exhibit 25 with "LT" for her apartment building (ECF No. 286-2 to -3). (See ECF No. 232-1 at 1208.) Her apartment could not be seen in the picture, but she drew an arrow on the exhibit in the general direction of the back door where the man was standing. (See id. at 1208-09.) The next day Tuech saw a photograph of the individual in The Commercial Appeal. (See id. at 1209, 1230.) She identified the photograph that she saw in the newspaper, and it was entered into evidence as State's Exhibit 28 (ECF No. 286-7). (See ECF No. 232-1 at 1232-33, 1271-72.)
On cross-examination, Tuech stated that she described the man as very dirty with filthy clothes. (See id. at 1236-37.) She said that the person who accosted her kept looking around and appeared nervous. (See id. at 1237-38.) She said, "I just figured he was nervous because he kept watching the entranceway like he didn't know who was going to come in there." (Id. at 1238.)
The State's next witness was seventy-five-year-old Velora Hargett. (See id. at 1239.) Hargett and Cleopatra Todd belonged to the same church and same Sunday school class; Hargett took Cleopatra Todd to and from church every Sunday morning. (See id.) Hargett identified a photograph of Cleopatra and Shipley Todd, which was entered into evidence as State's Exhibit 26 (ECF No. 286-4). (See ECF No. 232-1 at 1240.) Hargett testified that Shipley Todd was over ninety years old, and Cleopatra Todd was "somewhere in her 70s." (Id.) Hargett picked up Cleopatra Todd at around 8:45 a.m. and took her to church at Madison Heights
The State then presented the testimony of Gregory W. Moore, the Todds' grandson
Moore last saw the Todds in July in Union City. (See id. at 1249.) Shipley Todd, who was ninety-three years old, was "alive and well" and in good health. (See id.) Cleopatra Todd was seventy-nine years old. (See id.) Moore was the executor of his grandparents' will, and as a result, he received the long-distance telephone bill. (See id. at 1249-50.) The phone bill had a four-minute call to Chicago, Illinois, on August 10, 1980, at 3:24 p.m. (See id. at 1250.) Moore identified the phone bill, and it was entered into evidence as State's Exhibit 27 (ECF No. 286-5 to -6). (See ECF No. 232-1 at 1250-51.) Moore did not know Gary Bradford Cone or Sue Cone, and to the best of his knowledge, the Todds did not know them either. (See id. at 1251.) Moore testified that the Todds would not have any reason to call anyone in Chicago. (See id.)
The State called Paul Adams, who lived at 100 North Evergreen, about three lots "[d]iagonally north" of the Todds' home. (Id. at 1255.) Adams knew Mrs. Todd well; Mr. Todd did not "mix much with people." (See id.) Adams identified the individuals in the photograph at State's Exhibit 26 (ECF No. 286-4) as the Todds. (See ECF No. 232-1 at 1256.) In August 1980, Greg Moore called and spoke with Adams's wife. (See id. at 1257.) Moore told her that they had not been able to contact the Todds, and he wanted the Adamses to go check on them. (See id.) Adams's wife called Mary Maguire, a neighbor who lived about three houses north, and Maguire and her son walked across the street and talked to the Todds' next door neighbor. (See id.) Maguire reported back, and Adams called the police. (See id. at 1257-58.) Adams told the police "that there was something bad wrong at this house, where the Todds lived. And that we felt like they ought to investigate." (Id. at 1258.) The police came to Adams's house, and he told them where the Todds' house was. (See id.)
The State then called Mary Maguire, who lived at 116 North Evergreen, located across the street and one house over from the Todds. (See id. at 1259.) On August 13, 1980, Mrs. Adams called Maguire and asked if she had seen the Todds in the last few days. (See id. at 1260.) Maguire said that she could not recall. (See id.) Mrs. Adams then said that the Todds' grandson had called and said that the Adamses had called the Todds and had not received an answer. (See id.) Mrs. Adams wanted to know if Maguire would go across the street and check on the Todds. (See id.) First, Maguire sent her son to ask the girl next door if she had seen the Todds. (See id.) The girl said that she "really [didn't] know when [she had] seen them last." (See id. at 1261.) Maguire glanced on the Todds' porch and saw two or three newspapers and mail overflowing the mailbox. (See id.) Maguire testified:
(Id.) Maguire went down to the Adams' house and told them what they had found; Adams tried to call the Todds but got no answer. (See id. at 1261.) Adams called the police, and Maguire went back to the Todds' driveway to wait for the police to arrive. (See id. at 1262.) The police went in briefly, came out, and waited for the other emergency personnel. (See id.)
The State then called Steven R. Cole, uniform patrol officer for the MPD's west precinct, as the next witness. (See id. at 1264.) Cole was working from 4:00 p.m. to midnight on August 13, 1980. (See id.) He received a complaint call from Adams. (See id. at 1265.) When he arrived at 121 North Evergreen, he spoke with complainants Mary Maguire and a Ms. Rasp. (See id.) Cole parked in the driveway of 121 North Evergreen and went to the front door and noticed several newspapers on the front porch and mail protruding from the mailbox. (See id.) Cole knocked on the door and did not get a reply. (See id.) There was a door open on the north side of the house, but the storm door was locked and covered with flies. (See id. at 1265-66.) Cole went to the west side or rear of the house, and found a screen door covered with flies. (See id. at 1266.) Cole and his partner called inside but did not get a response. (See id.) The back door was not locked; the screen door was closed, and the wooden door was open. (See id.) When Cole and his partner first went in the house, there was a "real foul odor." (Id.) Cole went to the left through the kitchen, where he found a dead woman. (See id.)
(Id.)
Cole went into the living room and found a dead man lying on his back in front of the couch. (See id. at 1267.)
(Id.)
Cole and his partner back-tracked out of the house, the way they had come in, and tried not to disturb the crime scene. (See id.) They called for a lieutenant. (See id.) Once the lieutenant arrived, they re-entered the house and checked for other victims and a suspect. (See id. at 1267-68.) They did not let anyone in the house except for the investigators. (See id. at 1268.) The defense did not cross-examine Cole. (See id. at 1270.)
Marjorie Todd Moore of Union City, Tennessee, was the next person to testify for the State. (See id. at 1273.) Shipley Todd was her father, and Cleopatra Todd was her stepmother. (See id.) Moore testified that the last time she saw them was around June 30, 1980. (See id. at 1273-74) The last time she spoke with them was Friday, August 8, 1980. (See id. at 1274.) She was very close to both of them. (See id.) Moore testified that they did not know Gary Bradford Cone, Sue Cone, or anyone in Chicago that the Todds would have called long distance. (See id.) Moore had tried to call the Todds "all day long Monday, Tuesday and Wednesday, constantly, at different times of the day,... and I tried all times during the day." (Id.) She testified that they were both hard of hearing and thought that their phone may not have been ringing or was out of order. (See id.) Moore was not successful at reaching the Todds on any of those days. (See id. at 1275.) She asked her son what to do, and he said he would call Adams to see if there was anything wrong with the phone or with the Todds. (See id.) Prior to that, Moore had contacted the telephone company in Union City, who contacted the Memphis telephone company. (See id.)
Moore testified that her father was ninety-three years old, and her stepmother was seventy-nine years old. (See id. at 1276.) Shipley Todd was very hard of hearing, and he had gout. (See id.) He was about five feet six inches or five feet seven inches tall and weighed approximately 145 pounds. (See id. at 1278.) Cleopatra Todd weighed approximately 150 to 160 pounds. (See id.) Moore identified the picture at State's Exhibit 26 (ECF No. 286-4) as her parents. (See ECF No. 232-1 at 1278.)
Moore testified about the couple's normal routine on Sunday:
(Id. at 1276-77.)
Moore testified about how she learned of the Todds' death:
(Id. at 1277.)
The State called Wayne A. Todd as the next witness. (See id. at 1282.) Wayne Todd identified the persons in the photograph at State's Exhibit 26 (ECF No. 286-4) as his grandparents Shipley and Cleopatra Todd. (See ECF No. 232-1 at 1282.) Wayne Todd identified their bodies at the county morgue. (See id. at 1283.) The defense did not cross-examine Wayne Todd. (See id.)
The next witness called by the State was James Spencer Bell, M.D., who was employed as an associate professor of pathology at the University of Tennessee Center for the Health Sciences and as the Chief Deputy Shelby County Medical Examiner and Deputy Chief State of Tennessee Medical Examiner. (See ECF No. 232-2 at 1284.) Bell was qualified as an expert in forensic pathology. (See id. at 1286.) On August 13, 1980, at 6:22 p.m., Bell received a call from the MPD about the homicide at 121 North Evergreen. (See id. at 1286-88.) Shortly thereafter, Bell arrived on the scene, identified the first individual that was dead in the living room, and proceeded into the hallway area where a second individual was dead on the floor. (See id. at 1287.) Bell then described the cursory examination that he made and his findings:
(Id. at 1288-89.)
Bell stated that they "had been dead longer than a few minutes, or longer than a few hours, because they had started to undergo decomposition, or autolysis, and the insects were starting to be attracted to them, as well as the odors in the area." (Id. at 1290.) Bell testified that the decomposition "suggests to me that the death of these individuals was a period of days, like a day or two or three." (Id. at 1292.) Bell noted that the smear of blood on the floor between Cleopatra Todd and the front door indicated that the body had been moved. (See id. at 1305-06.)
Bell performed an autopsy on Cleopatra Todd, and the external examination revealed the following:
(Id. at 1293.) Bell testified that Cleopatra Todd was five feet four-and-a-half inches tall and 119 pounds. (See id. at 1294.) There were numerous lacerations, contusions or bruises to the hands, arms, and fingers. (See id.) The right middle finger at the last knuckle joint and the right ring finger were bruised. (See id.) There was bruising and pooling of fluid on the back side of the right hand. (See id.) These injuries occurred close to the time of death and were consistent with a defensive wound or "someone trying to ward off somebody who is attacking them, or beating upon them, and they attempt to place their hand to protect — either their body, or their head." (Id. at 1294-95.) There was "bruising of the left hand also, in the region of the index finger and knuckle" and "an abrasion and a bruise of the right elbow." (Id. at 1295.) The left hand injuries were defensive wounds. (See id.)
There were twenty-two wounds, including scalp lacerations and tears, to the head, and also other bruising. (See id. at 1295-96.) These wounds "represent[ed] an attempt to subdue the individual, or produce more than subduction, possibly death in the individual." (Id. at 1296.) Each wound represented a separate blow. (See id.) The wounds were located at the "left forehead, the right forehead, above the right eye, in the back of the head, a few on the left side, and then numerous ones on the right side of the head." (Id.)
Bell's internal examination revealed the following:
(Id. at 1297-98.)
Bell then testified about his external examination of Shipley Todd:
(Id. at 1298-99.) These wounds were consistent with defensive wounds. (See id. at 1299.)
(Id. at 1299.) Sixteen blows struck Shipley Todd crushing his skull and driving it into his brain. (See id. at 1299-1300.)
The cause of death for both of the Todds was "[m]ultiple blunt trauma to the head." (Id. at 1300.) The blunt instruments that were used would be consistent with "something approximately an inch, or so, in diameter, possibly a hammer or possibly the heel of a knife, or a weapon, a gun." (Id.)
Bell identified containers where he placed hair from the Todds' heads, and they were admitted into evidence as State's Exhibit 30 (ECF No. 286-13 to -18). (See ECF No. 232-2 at 1304.) Bell was excused without cross-examination. (See id. at 1306.)
The next witness called by the State was Ruth Shreve. (See ECF No. 232-2 at 1350.) She testified that in August of 1980, she drove her car to work at Warren Radio Company on 180 South Cooper and parked on the side of the building. (See id. at 1350, 1352.) A customer came in on the afternoon of Friday, August 8, 1980, and asked about the missing license plate on Shreve's car. (See id. at 1351.) Shreve identified her license plate, and it was admitted into evidence as State's Exhibit 31 (ECF No. 286-19 to -20). (See ECF No. 232-2 at 1350-51.) The second day of trial concluded at 5:05 p.m. on April 17, 1982. (See id. at 1356.)
The third day of trial began at 10:45 a.m. on Monday, April 19, 1982, with the State's presentation of MPD officer Jimmy Hammers of the Violent Crimes Bureau. (See id. at 1392.) On August 13, 1980, Hammers received a call to go to 121 North Evergreen. (See id. at 1393.) Captain Tommy Smith briefed Hammers and Sergeant B.O. Wheeler on their arrival, and they entered the house through the rear door "as it was open and the front door was locked." (See id. at 1393, 1415.) As they started in the back door, Hammers noticed on the north panel "what appeared to [be] a bare footprint." (Id. at 1394.) Hammers noticed the broken "eye of a screen hook ... the little round piece where the screen door hook fastens into and keeps the screen door closed" had been broken from the screen door and was lying on the second step from the top.
(Id.) Hammers described the scene as he entered the house:
As we entered the bedroom, there was a bed immediately to your left. A dresser. On this bed, we observed a ladies' purse, which the contents had been poured out — or lying on the bed beside the purse. There was a newspaper. There was a ladies' blue dress, and a slip, hanging on the end of the bed. We noticed that in this room — the bedroom, the drawers to the dressers were open. The room gave the appearance that it had been ransacked. There were clothes that had been tossed around, in different places.
(Id. at 1394-96.)
(Id. at 1396-97.)
Hammers described the living room area of the Todds' home:
The couch was covered with a bedspread, and on the east end — the far east end of the couch was a pillow — bed pillow, and on this bed pillow was a considerable amount of blood, and quite a considerable amount of blood on the east end of the couch.
(Id. at 1397-98.) Blood had either been smeared or wiped just west of the front door. (See id. at 1398-99.) The bodies were not visible from either the front or the back door. (See id. at 1399.) Hammers saw blood splatters on the walls and on the curtains to the right and left of the front door and on the north wall where the stairs lead up. (See id. at 1399-1400.) There were blood splatters on the wall south of the door, and blood spots on a large mirror. (See id. at 1400.) The victim's billfold was lying on a small, black night stand under the mirror; his identification had been pulled out. (See id.) A cup and saucer with blood spots on them were on the night stand. (See id.)
Hammers and the other officers unlocked the front door and noticed blood on the screen, inside the screen door, and outside the front door, which was wooden and glass. (See id.) Newspapers from August 11-13 were on the porch. (See id.)
The upstairs of the house appeared to be normal. (See id. at 1401.) In the basement, Hammers noticed a cot that someone had slept on or been laying on, and boxes with personal papers and items. (See id.) There was also $1070 in cash in a bank envelope in the basement. (See id. at 1420.)
Hammers identified a set of thirty-nine photographs which he stated truly and accurately portrayed the scene on August 13, 1980; the photographs were entered into evidence as State's Exhibit 33 (ECF No. 287-1 to -40). (See ECF No. 232-2 at 1401-03.) Hammers went through each photograph describing what each photograph depicted as follows:
(Id. at 1403-08.)
Hammers returned to the Todds' home the following day on August 14, 1980, at
Hammers testified that there was a set of rubber gloves that looked like they had been used for yard work in one of the drawers of a cabinet in the hallway. (See id. at 1410.) Hammers and Holder found a butcher knife in the kitchen sink with blood on it which may have been the murder weapon. (See id.) Hammers found more than a dollar in change in Shipley Todd's pocket. (See id. at 1420.)
The State called MPD Sergeant C.J. Harrell of the Crime Scene Squad to describe the evidence that was collected at the Todds' house. (See ECF No. 232-3 at 1422-23.) Harrell identified a green and white towel collected from the bathroom floor, which was entered as State's Exhibit 35 (ECF No. 287-46 to -48). (See ECF No. 232-3 at 1423-24.) He identified a broken screen door hook, which was found at the rear door of the house on the steps. (See id. at 1427-28.) The hook was entered into evidence as State's Exhibit 36 (ECF No. 287-49). (See id. at 1428.) Harrell identified three newspapers, dated Monday, August 11, 1980; Tuesday, August 12, 1980; and Wednesday, August 13, 1980, and seven pieces of mail from the Todds' mailbox. (See id.) Harrell identified a Norelco electric razor as an item collected from the Todds' bathroom; it was entered into evidence as State's Exhibit 37 (ECF No. 287-50 to -52). (See ECF No. 232-3 at 1430.)
Harrell testified that the investigators attempted to process fingerprints that night, but the lighting conditions were very poor. (See id. at 1429.) The crime scene investigation was terminated that night due to the lighting conditions. (See id.)
On cross-examination, Dice pointed out that Harrell reported that Shipley Todd had personal property including "a brown leather coin purse; one gold Timex man's wristwatch; one key ring, with three keys; one small pocket knife; one white handkerchief; one $2 bill; and $1.53 in change." (Id. at 1431-32.)
The State called John Birdsong of the MPD's Tactical Unit. (See id. at 1433.) Birdsong was called to secure the Todds' house and keep anyone from going into the house on August 13, 1980. (See id. at 1433-34.) He was there until 11:00 p.m., and then Officer Thomas Dwight Smith of the MPD Tactical Squad came on duty. (See id. at 1434, 1437-38.) No one entered after the crime-scene and violent-crimes officers. (See id. at 1434-35.) The defense did not cross-examine Birdsong. (See id. at 1436.)
The State called Officer Thomas Dwight Smith. (See id. at 1437.) Smith testified that he took over the security of the house from Birdsong and stayed until the following day. (See id. at 1438.) No one was permitted into the home during that period. (See id.) On the morning of August
The State called Joe Sanders of the MPD's Crime-Scene Squad. (See id. at 1441.) On August 14, 1980, he went to 121 North Evergreen to collect physical evidence, take photographs, and process the scene for fingerprints. (See id. at 1442.) Strother presented Sanders with forty-two index cards which Sanders identified as "latent lifts" or fingerprints from the home at 121 North Evergreen. (Id. at 1445.) The cards were entered into evidence as State's Exhibit 38 (ECF No. 288-1 to -85). (See ECF No. 232-3 at 1445.) Sanders's job was to take the cards and write information on the back. (See id. at 1446.) At the end of the investigation, he turned them over to the Latent Fingerprint Section, which then determined whether the prints had any value. (See id.)
Sanders identified a group of four photographs, which were entered into evidence as State's Exhibit 39 (ECF No. 289-1 to -4), that portrayed true and accurate conditions in the Todds' home on the morning of August 14, 1980. (See ECF No. 232-3 at 1446.) These photographs included a photograph taken in the basement showing an old, metal, military ammunition box. (See id. at 1447.) Sanders testified that there was money found in the smaller box inside the ammunition box, and the money was taken out, put on the kitchen table upstairs, and photographed. (ECF No. 289-1 to -3; see ECF No. 232-3 at 1447.) There were bank books, statement books, and many papers. (See ECF No. 232-3 at 1447-48.) The other photograph was taken in the kitchen depicting potatoes lying on the sink and deteriorating, with a knife beside the potatoes (ECF No. 289-4). (See ECF No. 232-3 at 1448.)
Sanders identified a laminated plywood clipboard, two pieces of cardboard with writing on them, one sheet of notebook paper, and one ledger book containing several pieces of paper and a decal that were found lying on the floor in the living room just inside the front door. (See id. at 1450-52.) The ledger and clipboard were entered into evidence as State's Exhibit 40 (ECF No. 289-5 to -13). (See ECF No. 232-3 at 1451-52.)
A "Camp King" brand pocketknife with its blade open was found lying on the bed in the downstairs bedroom. (See id. at 1452.) Another knife with the inscription "Dole Bananas" was found on a small table in the same bedroom against the west wall. (See id.) These knives were entered into evidence as State's Exhibit 41 (ECF No. 289-14 to -15). (See ECF No. 232-3 at 1452.)
Sanders identified the end of a leather belt, which had been cut from the belt in the back bedroom, lying on the floor in front of the table with the "Dole Banana" knife. (See id. at 1453.) The end of the belt was entered into evidence as State's Exhibit 42 (ECF No. 289-16 to -17). (See ECF No. 232-3 at 1453.)
Sanders identified a safety razor that was collected from the downstairs bathroom in the medicine cabinet, which was entered into evidence as State's Exhibit 43 (ECF No. 289-18 to -19). (See ECF No. 232-3 at 1454.) He identified the kitchen knife from the sink, and it was entered into evidence as State's Exhibit 44 (ECF No. 289-20 to -22). (See ECF No. 232-3 at 1455.) He identified a stained sweatguard that was collected from the downstairs bedroom. (See id.) The sweatguard was entered into evidence as State's Exhibit 45 (ECF No. 289-23 to -25). (See ECF No. 232-3 at 1455.) He identified a white face cloth that was given to him on the scene by Ann Fowler from the toxicology lab. (See id. at 1456.) The cloth was entered into evidence as State's Exhibit 46
A section of the rear door from the outer wall of the entrance into the kitchen was presented to Sanders. (See id.) He testified that he did not collect or tag the item, but he was familiar with it. (See id.) The door section was entered into evidence as State's Exhibit 47 (ECF No. 290-4 to -6). (See ECF No. 232-3 at 1456.) The defense did not cross-examine Sanders. (See id. at 1457.)
The State called Paulette Sutton, an employee of the University of Tennessee Toxicology Laboratory, Forensic Serology Section, to testify as an expert in the field of Forensic Serology, concerning the classification and identification of body fluids. (See id. at 1458-60.) On August 31, 1980, Sutton was asked to go to 121 North Evergreen and examine the premises for trace evidence and body fluids. (See id. at 1460.) She arrived at the house around 7 p.m., entered from the back door, and proceeded down a hallway turning to the left into the kitchen and dining room area. (See id.) The house was very hot and dimly lit with quite a few flies around. (See id. at 1460-61.) She looked "primarily for blood stains [and] any sort of trace evidence which might include hair, or fibers, that looked out of place to us." (Id. at 1461.) Sutton testified,
(Id.)
Sutton identified a vial with hair taken from the bathroom sink and the area immediately surrounding the sink in the back bathroom that was collected on August 13. (See id. at 1462.) The vial was entered into evidence as State's Exhibit 48 (ECF No. 290-7 to -9). (See ECF No. 232-3 at 1462.)
Sutton identified a second vial of hair that was removed from a green and white floral designed towel (State's Exhibit 35 (ECF No. 287-46 to -48)) that was found that night under the bathroom sink. (See ECF No. 232-3 at 1462-63.) The vial was entered into evidence as State's Exhibit 49 (ECF No. 290-10 to -13). (See ECF No. 232-3 at 1463.)
Sutton testified that darkness prevented them from completing their examination of the house. (See id. at 1464.) She testified that they asked the police officers to tag some items from their property room that had blood stains on them and bring them to Sutton's lab. (See id.) Sutton returned to the house the next day around 1 p.m. to get another look at the house under better lighting conditions.
Sutton observed what appeared to be human tissue on the seat of the gray recliner in the living room. (See id.) She observed splattered red-brown staining that appeared to be blood in the living room and splatters on the front door and the screen door. (See id. at 1467.) They had observed blood stains on the front porch the first night that they were at the house. (See id.)
Patterson presented State's Exhibit 33 (ECF No. 287-1 to -40), the group of thirty-nine photographs, to Sutton and asked her to pull out the photographs related to her testimony. (See ECF No. 232-3 at 1467-68.) Sutton testified, demonstrating the photographs during her testimony, as follows:
(Id. at 1468-69.) Sutton identified the dress shield (State's Exhibit 45 (ECF No. 289-24 to -25)) and the wash cloth (State's Exhibit 46 (ECF No. 290-2 to -3)) as the two items that she was referring to in the photograph. (See ECF No. 232-3 at 1469.)
Sutton pointed out the gray recliner where the human tissue was found, the area of red-brown staining smeared inside the front door, the curtains on the right side of the front door, and the door or wall molding with a splatter red-brown stain traveling in "a definite directional pattern." (Id. at 1470-71.) She explained that a "definite pattern" occurs when "blood is slung onto an object-when it's flying through the air and it hits an object it generally leaves a pattern of what we call `splatter', and it will show the direction of the movement, and can actually show the amount of force that has been applied in some cases." (Id. at 1471.) Sutton testified that the splatter was consistent
(Id.) In the photographs, Sutton identified a definite splatter pattern that looked like an exclamation point, and the areas where the blood was lifted to obtain the Todds' blood types. (See id. at 1471-72.)
Sutton testified that the blood collected on the front porch and the door jamb of the front door was Type O human blood. (See id. at 1473-74.) The sample taken in the kitchen near Cleopatra Todd's body and from the floor molding near the living room and kitchen was also Type O human blood. (See id. at 1474-75.) The sample taken from the couch was Type O human blood. (See id. at 1475.) The dress shield (State's Exhibit 45 (ECF No. 289-23 to -25) was Type O human blood. (See ECF No. 232-3 at 1475-76.) The green and white towel (State's Exhibit 35 (ECF No. 287-46 to -48)) and wash cloth in the bedroom (State's Exhibit 46 (ECF No. 290-1 to -3)), however, had Type AB human blood. (See ECF No. 232-3 at 1476.) Sutton testified that only about four percent of the population has Type AB blood, which is the rarest blood type, while about forty-seven percent of the population has Type O blood. (See id. at 1476-77.) The defense did not cross-examine Sutton. (See id. at 1478.)
The State called R.L. Hannah of the MPD's Crime Scene Squad. (See id. at 1479.) On August 9, 1980, Hannah was called to 242 Auburndale to check a vehicle for fingerprints. (See id. at 1479-82.) Hannah identified the vehicle in State's Exhibit 2 (ECF No. 284-3) as the car he processed; he took the photograph at Exhibit 2 and a group of nine photographs of the car and its contents, which were entered into evidence as State's Exhibit 50 (ECF No. 290-14 to -23). (See ECF No. 232-3 at 1482-83, 1487-88.) Hannah reviewed and described the photographs which depicted shoes, a thermos, items of clothing inside and outside the automobile, money on the driveway, and a holster. (See id. at 1484-85.) Hannah took a photograph of the garage at 242 North Auburndale and recovered "spent hulls" in the rear. (See id. at 1486.) He identified a photograph of the garage with the bullet holes which was entered as State's Exhibit 51.
Hannah suffered from heat illness that day and had to leave the scene. (See id. at 1485.) On cross-examination, Hannah admitted that the crime-scene report in this case was not as detailed as usual because he became ill. (See id. at 1490-91.) Hannah processed most of the outside of the automobile before he had to stop. (See id. at 1491.) Another officer tagged the evidence that was shown in the pictures. (See id.) Hannah never entered the trunk of the car, but he believed that it was opened before he left. (See id. at 1491-92.) He took a photograph of the inside of the vehicle, but he did not open and search the console or the glove compartment. (See id. at 1492-93.) Hannah testified that another crime scene officer was supposed to have gone out to the scene later, but he did not know who that person was. (See id. at 1491.) Sergeant Ralph L. Roby of the MPD's Violent Crimes Squad took the
The State then called Ralph Roby. (See id. at 1494.)
Roby looked in the vehicle for clothing that had been described in the robbery, particularly "a greenish type suit." (Id. at 1496-97.) From outside the car, Roby could see a coat lying on the floorboard behind the driver and a matching pair of pants in the back seat. (See id. at 1497.) He identified the clothing at State's Exhibit 6 (ECF No. 284-14 to -15) as the pants and jacket that he removed from the vehicle. (See ECF No. 232-3 at 1497.) Roby removed eight watches and thirty-nine rings from the coat pocket, a wallet from inside the breast pocket, and twelve rings from the pants pockets. (See id.) The items were laid on the pavement and Hannah dusted them for finger prints. (See id.) They were photographed and Roby tagged them. (See id. at 1498.)
Roby stated that there was "assorted clothing," potted plants, and hair dryers in the car, and it looked as if someone was living in the car. (See State's Exhibit 57, ECF No. 291-5; ECF No. 232-3 at 1502, 1504.)
Roby identified a bag, tagged with Roby's name, which contained items found in the trunk of the car. (See id. at 1505.) The bag contained:
(Id.) The first bag of marijuana weighed approximately four and three-quarter ounces. (See id. at 1551.) The second bag weighed ten and three-quarter ounces. (See id.) The third bag weighed two and one-quarter ounces, and the fourth bag weighed approximately five and three-quarter ounces. (See id.)
Roby noted that there were two more bags, and the tag said, "[s]ee attached list" for an itemized list of the narcotics in each of the two bags. (Id. at 1505-06.) Roby then listed the items that were found in the first bag as follows:
(Id. at 1506-08.)
The second bag had the following contents:
(Id. at 1508-09.) These items were entered into evidence as State's Exhibit 59 (ECF No. 291-8 to -11). (See ECF No. 232-3 at 1510-11.)
Roby identified a garment bag that was found in the trunk of the car on Auburndale Street. (See id. at 1511.) The drugs that were taken from this garment bag (State's Exhibit 59 (ECF No. 291-9)) were laid on the table at police headquarters. (See ECF No. 232-3 at 1511.) Currency in the amount of $1932 was removed from the bag. (See id. at 1512.) The bag, including the assorted clothing contained inside, was entered into evidence as State's Exhibit 60 (ECF No. 291-12 to -16). (See ECF No. 232-3 at 1512.)
Roby identified a purple bag that was laying on the passenger side front floorboard which contained fourteen dollars and change. (See id. at 1512-13.) The purple bag was entered into evidence as State's Exhibit 61 (ECF No. 291-17 to -18). (See ECF No. 232-3 at 1513.)
Roby also identified a brown bag that contained a pair of glasses, twenty-one cents, assorted papers that were removed from the car, three sheets with a list of different types of drugs and their amounts initialed by Roby, and car papers. (See id. at 1513-14.) The brown bag and assorted papers were entered into evidence as State's Exhibit 62 (ECF No. 291-19 to -26). (See ECF No. 232-3 at 1514.)
Roby testified about a long-distance call he received on August 14, 1980, from Sergeant Bangley in Pompano Beach, Florida. (See id.) Cone had been arrested in a drug store robbery in Pompano Beach, Florida, and for stealing a car from a woman in the parking lot. (See id. at 1563-64.) Shots were exchanged between Cone and the officers in connection with his apprehension. (See id. at 1564.)
Roby and Sergeant J.C. Boswell went to Pompano Beach for about five days. (See id. at 1515, 1555, 1562.) Roby identified two Polaroid photographs of him and "a male white, Gary Bradford Cone, at the Broward County Jail in Florida" on August 18, 1980, at 7 p.m. (See id. at 1515-16.) The two photographs were entered into evidence as State's Exhibit 63 (ECF No. 291-27 to -29). (See ECF No. 232-3 at 1516.) Roby testified that Cone had been identified to him as "Gerald Mason Harmon." (Id. at 1515.) At trial, Roby identified Cone as the same person that he saw at the Broward County Jail. (See id. at
Roby identified hair samples that were taken from Cone in Roby's presence at the Broward County Jail. (See id. at 1517, 1561-22.)
Roby identified a passport photograph of Cone that he removed from the passport found in the suspect's vehicle. (See id. at 1520, 1528-29.) The photograph was entered into evidence as State's Exhibit 66 (ECF No. 291-34 to -35). (See ECF No. 232-3 at 1520.) Roby testified that State's Exhibit 28 (ECF No. 286-7) looked like the newspaper photograph of the same passport photograph and that the top right photograph in State's Exhibit 21 (ECF No. 285-16) was Cone's passport photograph. (See ECF No. 232-3 at 1529-30.) Roby identified the photograph in State's Exhibit 5 (ECF No. 284-11) as Cone's photograph. (See ECF No. 232-3 at 1529.) Roby testified that the middle photograph, Number 6, with a red arrow on State's Exhibit 13 (ECF No. 284-26), was a picture of Cone. (See ECF No. 232-3 at 1530-31.) He stated that the photograph with the red arrow in State's Exhibit 21 (ECF No. 285-16) and the top right photograph at State's Exhibit 4 (ECF No. 284-9) were also Cone. (See ECF No. 232-3 at 1531.) He identified a photograph at State's Exhibit 19 (ECF No. 285-10) as Cone's driver's license photograph. (See ECF No. 232-3 at 1531-32.)
Roby stated that there were two driver's licenses in the wallet taken from the abandoned Cutlass. (See id. at 1532.) There were registration papers including an "Application for State Farm Automobile Insurance" for a 1974 Yamaha motorcycle
On cross-examination, Dice presented Roby with State's Exhibit 62, specifically three pieces of paper that Roby discovered on August 11, 1980, and took from a bag in the vehicle (ECF No. 291-20 to -23). (See ECF No. 232-3 at 1538-39, 1544.) The word "Speed" was written at the top of the list. (ECF No. 232-3 at 1539.) Also on the list were the following: Preludin; Phenmetrazine RCL, 75 milligrams, pink BI-62 190; Eskatrol 15 milligrams; Diatroxamine Sulfate 25; Benzadrine, "[amphetamine] 10 Sulfate 100"; Ritalin HCL Methylphenidate "5 milligrams yellow 75... 10 milligrams green 206," "20 milligrams pink 207"; "Dexadrine" "[Dextreamphet]"
Id. at 1541-42.
The third page had the word "Narc" at the top. (Id. at 1542.) That page had the following list:
(Id. at 1542-43.)
On the fourth day of trial, April 20, 1982, Merny Miller, the keeper of records for
The State called Michael P. Malone, a FBI special agent assigned to the Microscopic Analysis Unit of the FBI Laboratory in Washington, D.C. (See id. at 1573.) Malone was specially trained in the examination and comparison of hairs and fibers and was qualified as an expert. (See id. at 1573-74, 1576-77.) He identified gray cardboard mailers containing glass microscopic slides submitted to him with "question hairs" taken from a bathroom and a towel. (Id. at 1575.) The first cardboard mailer and three slides were entered into evidence as State's Exhibit 68 (ECF No. 291-40 to -42). (See ECF No. 232-4 at 1575-76.) A second package of four mailers, with each mailer containing two glass slides, contained known hair samples from the Todds and Cone and was entered in evidence as State's Exhibit 69 (ECF No. 291-43 to -45). (See ECF No. 232-4 at 1576.) Malone identified State's Exhibit 30 (ECF No. 286-13 to -18) as the known hair samples from the Todds and testified that the hairs from the containers in the exhibit were removed and placed on slides at State's Exhibit 69 (ECF No. 291-43 to -45). (See ECF No. 232-4 at 1585-86.) Malone compared the known hair samples from the Todds against any questionable hairs that may have been removed from the scene. (See id. at 1586.) Malone explained:
(Id. at 1587-88.)
On cross-examination, Dice pointed out that the October 2, 1980, report stated "that hairs do not possess enough individual microscopic characteristics to be positively identified as originating from a particular person to the exclusion of all others in his or her race group," and the March
The State called Jerry McElrath of the MPD's Latent Fingerprint Squad to testify as an expert in the field of latent fingerprint identification. (See id. at 1593-95.) He testified that a latent fingerprint examiner examines fingerprints
The State called James L. Holder, a latent-fingerprint examiner for the MPD, as an expert in the field of fingerprint identification. (See id. at 1603-04.) Holder examined latent fingerprints from the Todds' house and compared them to Cone's known fingerprints. (See id. at 1605-06.) Holder determined that the latent fingerprints taken from the Todds' house (State's Exhibit 38) that were marked "from kitchen side of door facing from living room" were the same as Cone's right palm print, and the fingerprints on the card marked "from right side of doorway from kitchen to living room" were the same as the right index, right middle, right ring, and right little finger based on at least forty-five points of identification compared with Cone's known fingerprints. (See id. at 1606-09.) Holder identified three cards of latent fingerprints lifted from Cone's car (State's Exhibit 52) as the same as Cone's known prints. (See id. at 1609-10.) The defense did not cross-examine the witness. (See id. at 1612.) The State then rested. (See id.)
The defense case began with the testimony of Valeree Cone, Gary Cone's mother. (See id. at 1631.) Valeree Cone testified that she had one deceased child and three living children, including Sue Cone of Chicago, Illinois, and Gary Cone. (See id. at 1631-32.) Her husband Zack Robert Cone retired from the Army in 1966 and died in October, 1972. (See id. at 1632-33.) Valeree Cone testified that the family was "disciplined." (Id. at 1645.) Gary Cone's older brother had always wanted to be in the military; he drowned before Cone went to Vietnam. (See id. 1645-46.) Valeree Cone thought that Gary Cone enlisted in the service to please his father. (See id. at 1646.)
Valeree Cone testified that Gary Cone served in the army from November 1966
Valeree Cone testified that Gary Cone had not used drugs and did not drink prior to going into the army. (See id. at 1647.) After he came home from the army, he received a package of marijuana through the mail from Vietnam. (See id.) At the time of trial, Gary Cone had been out of the army "at least twelve" years. (Id. at 1649.)
Gary Cone had enrolled in the University of Arkansas at Fayetteville, completed a bachelor's degree, earned high honors with a 3.6 grade point average, and traveled to Europe. (See id. at 1649-50.) After "a little vacation" in Europe, Gary Cone was incarcerated in Oklahoma for robbery from 1972 until 1979. (Id. at 1650.) His father and his fiancee died while he was in prison. (See id. at 1654.)
Valeree Cone testified that when Gary Cone got out of the penitentiary, he told her he had a job, but she was "not sure about that." (Id. at 1651.) She testified that Cone was working at a restaurant on the waterfront in Key West, Florida. (See id. at 1651-52.) She also testified that Cone visited Chicago for a "very little while" and spent a few weeks in Hawaii. (Id. at 1652.) She stated that she "loaned [Cone] quite a bit of money, ... because he thought that he was going to be able to enroll in college." (Id.) Cone had been admitted to law school at the University of Arkansas and scored in the ninety-sixth percentile on the Law School Admissions Test. (See id. at 1652-53.) She also let Cone have her car. (See id. at 1653-54.)
The defense's second witness, Dr. Matthew Jaremko, an expert in clinical psychology, saw Gary Cone on two occasions for approximately six hours. (See id. at 1667, 1669.) Jaremko diagnosed Cone with post-traumatic stress disorder (also described by examining counsel as "Vietnam Veterans Syndrome")
Jaremko testified that post-traumatic stress disorder was "the major cause" for Cone's drug use and the result of Cone "being exposed to the trauma of combat and the continuing trauma that occurred after he came back as a Vietnam veteran from an unpopular war, in which he became disenfranchised from the society at large, causing him a great deal of personal stress, social maladjustment." (Id. at 1670-71; see also id. at 1688.) Jaremko testified that Cone started using drugs in Vietnam and continued to use them to selfmedicate against stress. (See id. at 1672.) Cone was never treated for Vietnam Veterans
Jaremko concluded that Cone was suffering from mental illness in August 1980, when Cleopatra and Shipley Todd were murdered, and that he was incapable of conforming his conduct to the requirements of the law. (See id. at 1674.) Jaremko could not say that Cone's mental illness prevented him from knowing the wrongfulness of his conduct. (See id. at 1675.) Jaremko testified that Cone showed remorse by saying "that he was very sorry that that happened." (Id. at 1675; see also id. at 1680.)
On cross-examination, Patterson pointed out that Jaremko was not licensed "in any capacity" in the State of Tennessee. (Id. at 1679.) Jaremko's opinion was based on Cone's representations, the interview, information from Dr. Lipman about Cone's drug usage, and psychological testing. (See id. at 1679, 1689.) Jaremko testified that Cone described the murders in general terms:
(Id. at 1681.) Jaremko was aware of Cone's "honorable performance" in college, but not of the fact that he had been accepted to law school. (Id. at 1682-83.) Jaremko testified that Cone's values had changed, where he now valued "humanistic oriented values" like kindness more than "achievement oriented values; work, success, discipline, money, and so forth." (Id. at 1685.) He stated that smart people "can have disorders — psychiatric and psychological disorders." (Id. at 1687.) The fourth day of trial ended at 6:00 p.m. (See id. at 1692.)
The fifth day of trial began at 10:35 a.m. on April 21, 1982. (See id.) The defense's third witness, Jonathan J. Lipman, Ph.D., a neuropharmacologist, was qualified as an expert on the effects of drugs on the human body. (See ECF No. 232-5 at 1715, 1717, 1721.) Lipman interviewed Cone during his incarceration in 1982, and created a history of Cone's drug use beginning at the age of eighteen. (See id. at 1722-23, 1761, 1777.) He concluded that Cone was "a polydrug user" and that his principal drug was amphetamine in various forms, including cocaine. (Id. at 1723.) Cone combined his use of amphetamines with opiates, which are morphine-type drugs, to reduce anxiety. (See id.) Lipman ascertained that Cone's first drug exposure was in 1966, when he was introduced to hashish while in the army in Germany. (See id. at 1724.) In Vietnam, Cone was introduced to opium, which contains morphine, and amphetamine. (See id.) Cone was issued amphetamine for fifty-three consecutive nights while on guard in Vietnam. (See id.) He continued to use drugs while in college from 1969 to 1972, with his use becoming particularly heavy towards graduation. (See id. at 1725.)
While in prison in Oklahoma, Cone's drug use was extremely sporadic. (See id. at 1726.) He discovered heroin, and his amphetamine use "broadened and included
Lipman testified that the most potent opiate given by injection was heroin, and the most potent amphetamine given by injection was methamphetamine. (See id.) He stated,
(Id. at 1726-27.) Cone's "drug of choice" was Desoxyn — methamphetamine. (Id. at 1728.)
After Cone's release from prison around December 1979, Cone was an addict and robbing pharmacies to obtain drugs. (See id. at 1729.) He was taking amphetamines and interspersing them with shots of Demerol to "maintain a state of normality." (Id. at 1731-32; see also id. at 1734, 1743-44.) Lipman ascertained that Cone was taking four shots of methamphetamine in the morning followed shortly by a Demerol injection to take away the paranoid symptoms of the amphetamine. (See id. at 1735-36, 1743.) Cone was "also taking Preludin, Phenmetrazine, which is an amphetamine type, by injection, solubilizing those tablets and capsules." (Id. at 1734.) "[H]e was also taking Eskatrol and Dextroamphetamine, and a host of other drugs," although on a more sporadic basis. (Id.) Lipman testified,
(Id. at 1734-36.)
Lipman described Cone's drug intake as "ferociously large doses" and found that it was astonishing that Cone could sleep between midnight and 8 a.m. (Id. at 1736.) Lipman stated, "I could not survive one of these amphetamine doses.... Well, one of those injections and I wouldn't sleep for days." (Id. at 1737.) Lipman determined that Cone must be tolerant because he had been sleeping and taking such large doses to function. (See id.)
Cone had "a co-dependence upon and between the two drugs." (Id. at 1743.) Lipman testified about the increase in Cone's use by April 1980:
(Id. at 1745.) By April 1980, Cone's "drug pattern had changed completely." (Id.) He was not sleeping anymore, and he was escalating the Demerol doses in the evening so he could "doze." (Id. at 1745-47.) He was using the drugs to keep going, "[n]ot necessarily to keep a normal, healthy routine." (Id. at 1747.)
In June 1980, Cone went to Hawaii and continued this pattern of drug use. (See id. at 1747-48.) He described a cocaine binge in which he consumed two-thirds of an ounce of cocaine by intravenous injection. (See id. at 1748.) Cone described having the feeling of "something crawling under your skin," also known as "formication hallucinosis" or "tactile hallucinations." (Id. at 1748-49, 1851.) Lipman testified that Cone had "pervading paranoia, fear, with insight" and noted, in particular, one incident where Cone held a gun while on a deserted beach where he was injecting cocaine, which is very much like amphetamine. (Id. at 1748-49.) Cone told Lipman, "There were people after me, I thought, but I had no reason to think so. It was irrational." (Id. at 1752.) Lipman attributed this paranoia — overwhelming and unreasonable fear — to a chronic amphetamine toxicity state. (See id. at 1851-52.)
Cone continued with this drug pattern until August 1980, and at some point, he began taking amphetamine pills in addition to the injections. (See id. at 1750-51.) Lipman also described a "speed binge" that Cone had at a Holiday Inn in Fayetteville, Arkansas, where he was injecting drugs at two-hour intervals for two days. (Id. at 1751-52.)
Lipman testified about the difference between acute and chronic amphetamine psychosis and determined that Cone had chronic amphetamine psychosis in August 1980. (See id. at 1738-40, 1758.) Chronic amphetamine psychosis is due to large doses of amphetamines being taken over a long time. (See id. at 1742-43.) Lipman testified that chronic amphetamine psychosis was a mental illness that could prevent Cone from knowing the wrongfulness of an act and render him substantially incapable of conforming his conduct to the law. (See id. at 1758.) He stated that in the first twenty-four hours of withdrawal, in addition to physical symptoms of weakness,
Dice presented Lipman with State's Exhibit 59 (ECF No. 291-8 to -11), two lists of drugs. (See ECF No. 232-5 at 1759.) Lipman testified that the drugs were mainly amphetamines, opiates, or barbiturates. (See id. at 1759-60.) After reviewing State's Exhibit 62 (ECF No. 291-19 to -26), Lipman testified that the list labeled "Downs" was full of barbiturates. (See ECF No. 232-5 at 1761.) The list labeled "Speed" was full of amphetamines. (See id.) The list labeled "Narc" was full of opiates. (See id.)
On cross-examination, Lipman testified that he was not a physician. (See id. at 1768.) Although Lipman had been trained in psychology, he was not a psychologist and had no degrees in this country in psychology, psychiatry or the treatment of mental illness. (See id. at 1768, 1773-74, 1777.)
Lipman's conclusions were based solely on Cone's representations about the "use of drugs, the duration of the time, the method, the route, and the symptoms that resulted." (Id. at 1781-82.) Lipman stated that his conclusions would differ if the dose, time, and intervals of use were different than what Cone described. (See id. at 1781-84, 1846-47.) Lipman testified that Cone had a great deal of familiarity about the extraction of drugs in tablet forms into solution, but he was less sophisticated about symptoms. (See id. at 1847.) With regard to the lists of drugs presented at trial, Lipman testified that there were numerous drugs on those lists that Cone did not use and had stated that he did not like. (See id.) The defense rested after Lipman's testimony. (See id. at 1867.)
On rebuttal, Ilene Blankman, Cone's friend and a former marijuana user and heroin addict, testified that from her personal experience, she could recognize symptoms of drug use. (See ECF No. 232-6 at 1870-73.) She worked for the State of Florida counseling juvenile delinquents, and through her work, she came into contact with people with drug problems. (See id. at 1871.) She saw Cone over a period of time from March through August of 1980, in Key West, Florida. (See id. at 1873-74, 1900.) She had a personal policy of trying to stay away from people who used drugs because she had been rehabilitated and drug-free for ten years. (See id. at 1871, 1874.) To the best of Blankman's knowledge, Cone was not on drugs during this period of time. (See id. at 1875.) Blankman had seen Cone with his shirt off and without long trousers, and she did not see any needle, or "track," marks. (See id.) She never saw him acting paranoid. (See id. at 1876.) During the time that Cone was at Blankman's home in August 1980, he did not scream, yell, or hallucinate. (See id. at 1882.) He did not act unusual. (See id. at 1883.) She did not see Cone use any drugs or see him with drugs in her home. (See id.) He was not "out of his mind." (Id.) Blankman said, "That's why I'm
The sixth day of trial began at 8:35 a.m. on Thursday, April 22, 1982. (See id. at 1909-10.) The State re-called FBI Agent Eugene Flynn, who had been sworn in the previous night. (See id.) Flynn testified that on August 14, 1980, at 2:15 p.m., he went to the Broward County Jail in Pompano Beach, Florida, to see Cone, who was in jail under the name of Gerald Harmon, to establish his identity. (See id. at 1911.)
Cone told Flynn that he did not have any physical or mental problems, except for a "slight cold" and "slight" drug withdrawal symptoms. (See id. at 1915, 1919-20.) Cone said he did not need a doctor or medication. (See id. at 1920.) He admitted to sniffing cocaine and using Dilaudid and Demerol. (See id. at 1916.) He seemed aware of his surroundings; he realized that he was in jail in Florida, had been brought before a magistrate, and arrested for a crime in Pompano Beach. (See id. at 1920.)
Cone's itinerary, as explained to Flynn, was:
(Id. at 1917.) Cone purchased clothes in Birmingham. (See id. at 1918.) He purchased disposable razor blades at the airport in Miami, Florida, and shaved his beard there. (See id.) He flew on an Air Florida flight at 7:55 p.m. on August 11, 1980, and arrived at Key West, where he stayed with Blankman. (See id. at 1918-19.) The following day, August 12, 1980, Cone obtained a voter's registration card and a Florida driver's license in the name of Gerald Harmon with an address of 1015 Angela Street, Key West, Florida. (See id. at 1919, 1925.) Cone told Flynn that he did not have any memory lapses or blackouts during the time period from August 9-14, 1980. (See id. at 1919.) Cone admitted that he assumed the name "Harmon" to change his identity to avoid detection and attempted to negotiate a guilty plea in exchange for a fifteen-year sentence for the jewelry store robbery and shooting of the police officer. (See id. at 1920-21.)
Flynn did not believe from his observations that Cone suffered any mental disease or defect. (See id. at 1923-24.) Flynn believed that Cone was capable of understanding the nature of his actions and the requirements of the law and could conform his conduct to the law. (See id. at 1924.) Flynn testified that Cone was not having nightmares, "hollering and screaming," or acting as though he were out of his mind on the two days that Flynn saw him. (See id. at 1937.)
On rebuttal, Roby testified that he saw Cone on two occasions in Florida and described his physical condition:
(Id. at 1939.) On cross-examination, Roby admitted that Blankman's statement about Cone not having needle marks was not in the report. (See id. at 1943.) Roby said that he never told Blankman to tell him "in detail everything that happened" between
On rebuttal, Ben Bursten, a psychiatrist on the forensic team at the Midtown Mental Health Center, testified regarding his examination of Cone at the request of the trial court on January 20, 1982. (See id. at 1954-55.) In that examination, Bursten took a social history, concentrating on the time period at issue in the case and also went further back into Cone's past to elicit relevant facts from his background. (See id. at 1955.) Bursten asked Cone what he did in the army. (See id.) Cone did not indicate that he saw combat in Vietnam, but he did talk about dead bodies. (See id. at 1956, 1964.)
Bursten was familiar with post-traumatic stress disorder and Vietnam Veterans Syndrome, but he did not find any evidence that Cone had either of those conditions:
(Id. at 1956.)
Bursten discussed Cone's amphetamine use. (See id. at 1956, 1964.) Assuming everything Cone told Bursten about his drug use was true, Bursten did not find that Cone suffered any mental disease or defect, that he was unable to perceive the wrongfulness of his conduct, or that he was unable to conform his conduct to the requirements of the law on August 9-10, 1980. (See id. at 1957.) Regarding intravenous drug users, Bursten noted that addicts can inject themselves in different areas of the body and that four or five injections may not leave needle tracks. (See id. at 1966.) Bursten stated that the track marks would be hard to hide, however, if someone was injecting drugs intravenously for months, six to ten times a day. (See id. at 1968.) Bursten also testified that he was "acquainted with what is called amphetamine psychosis." (Id. at 1966-67.)
The State then called John Robert Hutson, a clinical psychologist and the clinical director of Midtown Mental Health Center, who had examined Cone at the request of the trial court. (See id. at 1978-79.) Hutson saw Cone on two occasions on January 18, and February 10, 1982, and was part of the forensic evaluation team. (See id. at 1981.) Hutson obtained a social history and pursued the history of drug abuse, Cone's military involvement, his previous criminal record, psychiatric care, and medical care. (See id. at 1981-82.) Hutson reviewed investigative reports and witnesses' descriptions of what had transpired during the crimes with a particular interest in Cone's behavior, verbalizations, and conversations. (See id. at 1982.) Hutson reviewed psychiatric reports from Florida. (See id.) He reviewed the drug history that Cone reported to him, but he could corroborate "very little" of that history. (Id. at 1982-83.) Hutson did not form an opinion at the time about whether Cone suffered Vietnam Veteran's Syndrome or post-traumatic stress syndrome "primarily because I didn't think he did
The State rested its rebuttal, and there was no sur-rebuttal. (See id. at 1986.)
Closing arguments were heard on April 22, 1982. (See ECF No. 232-7 at ii.) Patterson summarized the evidence for the State:
(Id. at 2014-15.)
Patterson switched focus to what items were found in the car:
What was in that car? You have the benefit of what was in that car. Sure, he had a drug store in that car. What else did he have? I believe Sergeant Roby said that he had $2,400 and some odd cents in American currency. Did he get it from working? I submit to you he did not. In addition, in that car, he had the papers of where he'd owned a motorcycle in Hawaii. I'm assuming they don't give motorcycles away in Hawaii, I assume you have to buy that. Some of you may know how much a motorcycle might cost in the United States. But I submit to you it costs money....
(Id. at 2016.)
Patterson addressed the value of Lipman's testimony:
(Id. at 2023-24.)
Dice began the defense's closing argument stating,
(Id. at 2030.)
(Id. at 2032-33.)
Dice addressed Cone's Vietnam service and the effect it had on him:
You see, the [uncontroverted] truth is that he's employed here in Tennessee at the Vietnam Veterans Center as a government employee and he treats Vietnam veterans for the problems he talked about, and I'll come back to that. And I submit to you that the Defense has put
(Id. at 2035-37, 2054.)
Dice addressed Cone's drug use:
(Id. at 2041.) He noted that the cross-examination of Lipman was limited to the fact that Lipman was a "British scientist" and that he did not know Cone was studying to be a lawyer and had scored well on the law school admissions test. (Id. at 2055-56.)
Dice noted Hayes's testimony that the "individual had a spacey look to him, and that he made a [weird] remark of, `Nice shopping at Brodnax on a Saturday afternoon.'" (Id. at 2042.) He noted that Songu Mize walked out, despite Cone's warnings, and that no shots were fired. (Id.) Dice noted that Stovall testified that during his first encounter with Cone, Cone got out of his car and pointed at Stovall. (Id. at 2043.) He noted that Cone had not shot at anyone until Stovall told Allen to shoot Cone. (Id. at 2044.) He noted Mr. Slaughter's comment that "here comes a guy down the street in shorts, he's got an arm covered up by his shirt, and he's got sort of a funny looking smile on his face." (Id. at 2047.) He noted Tuech's comment that the person was "nervous" and "looking around." (Id.)
Dice argued that Cone's actions in the Todds' house were "multiple and repeated and senseless blows. They are bizarre. They are without sense." (Id. at 2051.) Dice argued that Cone was not a "clever criminal." (Id.) He noted that Cone, though a person with a known prison and fingerprint record, left his fingerprints all over the Todds' house and asked if "that [was] the action of a cool and premeditated and deliberate individual?". (Id. at 2051-52.) He argued that the call to Cone's sister from the Todds' house shed light on Cone's mental state:
(Id. at 2052.) Dice also argued about the fact that there was money left in the basement of the house:
(Id. at 2053.)
Dice questioned Blankman's credibility:
(Id. at 2056.) He questioned her credibility about Key West being the "drug mecca" of the United States. (Id. at 2057.) He continued:
(Id.)
Dice questioned Blankman's comment about Cone having track marks:
(Id. at 2057-58.) He questioned Blankman's veracity as it related to her house, which she described as "a little bitty house" and which Roby described as "a two story house." (Id. at 2058.) He questioned her veracity about her testimony that she and Cone shared the bed because there was nowhere to sleep. (Id.) Dice argued that "perhaps she was embarrassed about" sleeping with Cone and "[p]erhaps we'll also say she was embarrassed to admit that her role with Gary Cone in Key West, Florida, was different from what she portrayed it to be." (Id. at 2059.)
Dice noted that Agent Flynn, despite being an experienced FBI special agent, did not examine Cone's arms and did not take a blood sample or urinalysis despite the fact that he suspected Cone of drug use. (Id.)
Dice argued that all the experts relied on Cone's description of his drug use. (Id. at 2060.) He argued that "the fact that we've had experts on both sides who have differing honest opinions ought to create
(Id. at 2061.)
On rebuttal, Strother stated that Cone was not affected by Vietnam. (ECF No. 232-8 at 2065.) Strother noted that Cone went to the University of Arkansas after he returned from Vietnam, and that the photograph of Cone that his counsel presented to the jury as representing Cone in his normal state was taken after Vietnam while Cone was in college. (Id.) With regard to the drug argument, Strother states:
(Id. at 2068.)
Strother stated that there was no evidence that Cone saw combat, not even from Jaremko. (Id. at 2069.) He stated that being in the Supply Unit and handling body bags was not the same as "being in the jungles with bullets whizzing by your head. That's being in Supply." (Id.) Strother then addressed the symptoms related to Vietnam Stress Syndrome:
(Id. at 2069-70.)
Strother stated that Lipman was a paid expert who had never testified in a criminal case in front of a jury. (Id. at 2070-71.) He stated that even Lipman said that if Cone had the history of taking these drugs and was "suddenly cut off," then Cone "would be out of his mind." (Id. at 2071.) He argued that none of the experts saw Cone until two years later. (Id. at 2073.) He focused on the people who saw Cone "in or around the time of the offense." (Id. at 2073-74.) He argued that Cone picked Brodnax Jewelers, a place which held items of value, to rob. (Id. at 2074.) Cone "looked the place over first, went back out, came back in, looked around, found the watches, saw where the rings were, and then out comes the gun.... [Then he said d]on't push that alarm button." (Id.) He noted that Cone told Songu Mize, "Don't worry, I won't panic." (Id. at 2075.) He did not shoot Songu Mize when she walked out. He did not park his car right in front of the store where everyone could see it. (Id.) He drove down the street obeying the speed limit. (Id. at 2075-76.) He stole a Tennessee license plate to put on his car and then removed it after the Brodnax robbery. (Id. at 2075.) He changed clothes and put on a pair of shorts. (Id.) Strother argued that Cone was "a calm, cool, professional robber." (Id. at 2074.)
Strother noted that Cone tried to run over Stovall, tried to outrun the police cruiser, and then twice hid the car so it was not clearly seen from the street. (Id. at 2076-77.) He argued that Cone jumped the fence and waited, like "the brave soldier with that gun pointed," for Allen to round the corner. (Id. at 2077.) Cone shot Doug Clark, who had "his fearful little bottle," in the stomach to get away. (Id.) Strother stated "[Cone] crosse[d] the street and tried to get a car. Man needs a car, doesn't he? Doesn't that make sense? He's just left his. He knows the police have his. He needs a car. Tries to get a car. Doesn't quite make it." (Id.)
Strother argued that Cone was not out of control when he walked up to Tuech's apartment with nothing but the clothes on his back and an empty pistol: "Doesn't so-and-so live here? Oh, no, I'm sorry, they don't. Well, gosh, I must be mistaken, can I use you telephone?" (Id. at 2078.) Strother contended that the next person Cone talked to, other than his sister who had not testified, was Blankman. (Id. at 2079.) Blankman said Cone went to bed, and woke up the next morning trying to get new identification; Cone got a voter's registration card and took and passed a driver's license test. (Id.) Strother noted that when Flynn saw Cone in Florida he was "perfectly rational." (Id. at 2080.)
Strother stated that the murders were not irrational. (Id.) Strother noted that Cone abandoned his car and his wallet with money in it, but somehow got from the Todds' house to Key West, and suggested that "maybe [Cone] sprouted wings and flew." (Id. at 2081.) Mrs. Todd's purse was ransacked and dumped. (Id.) From all the fingerprints in the house, the police managed to find Cone's fingerprints in two places: the doorway to the kitchen and the doorway to the hallway that led to the kitchen. (Id.) There were gloves in the photographs. (Id.)
(Id. at 2082-83.)
Strother then argued that Cone's actions related to the murder of Mr. Todd were rational:
(Id. at 2083.)
Strother contested Dice's argument that it was irrational for Cone to leave the money in the basement. (Id.) Strother argued that Cone may not have found the money in the basement as it was "[a]ll in boxes inside of boxes. Just like elderly people tend to, at times, squirrel away money in a place like that." (Id.) Strother noted how Cleopatra Todd's purse had been dumped out, continuing to argue that Cone's behavior was rational. (Id. at 2083-84.)
Strother argued that it was rational for Cone to call his sister because he had no other place to turn for help, "What other choice does he have?" (Id. at 2084.) Strother noted that the police had found Cone's identification and knew who he was. (Id.) Cone's only chance was to get out of the Todds' house "very, very, quickly." (Id.)
Strother concluded,
(Id.) Arguments ended at 5:06 p.m. (Id. at 2085.)
The trial court began reading the charge of the law at 5:09 p.m. (See id. at 2086.) The court began by addressing the six separate indictments and instructing the jury,
(ECF No. 319-1 at 2160-61.)
The court instructed:
(Id. at 2162-63 (alterations in original).)
The trial court then instructed the jury on the law as to each indictment. (Id. at 2164-84.) The court instructed the jury on the law related to voluntary drunkenness or intoxication (see id. at 2188-90) and insanity at the time of the commission of the crime (see id. at 2191-95), including specific instructions related to a presumption of sanity (see id. at 2193) and consideration of lay and expert witness testimony as it relates to insanity (see id. at 2192-93). The trial court instructed the jury on identity (see id. at 2196); direct and circumstantial evidence (see ECF No. 319-2 at 2197); the presumption of innocence (see id. at 2198); the State's burden of proof beyond a reasonable doubt (see id.); the fact that the defendant was not required to testify (see id. 2201); flight by the defendant (see id. at 2205); the use of notes (see id. at 2206); consideration of the evidence as to each individual indictment (see id. at 2207); and the unanimity required for a verdict (see id. at 2208).
On the issue of impeachment of witnesses and credibility, the court instructed,
(Id. at 2199-2200.)
The court instructed the jury on opinion and expert testimony,
(Id. at 2204.)
The court instructed the jury about evidence related to criminal offenses not charged in the indictments,
(Id. at 2203.)
The court instructed the jury how to proceed through the indictments and lesser-included offenses to obtain a verdict. (Id. at 2209-18). The trial court concluded the reading of the charge at 6:45 p.m. (ECF No. 232-8 at 2087.)
Dice objected to the trial court's "failure to charge the degree of felony required to be committed after the burglary" (id. at 2088), as Dice contended that "burglary involve[d] the intent to commit a felony, and the felony was not specified [in the charge to the jury,] nor [was] the degree of burglary" (id. at 2092). Dice also objected to the court's explanation of the procedure by which the jury would find the defendant guilty by reason of insanity, and to the judge not physically removing from the jurors their trial notes prior to deliberations. (Id. at 2092-93.)
The judge gave the jurors the option to begin deliberations or to wait until the next morning. (Id. at 2089-90.) The jurors chose to begin deliberations the next day; the jury was instructed not to discuss the case and not to begin deliberations. (Id. at 2090-91.) The jury retired from open court at 7:47 p.m. (Id. at 2091.) The sixth day of trial ended at 7:55 p.m. (Id. at 2096.)
The seventh day of trial began at 8:40 a.m. on Friday, April 23, 1982. (See id.) The judge released the alternate juror. (See id. at 2097-98.) The judge informed the jury that he had reduced the jury instructions to writing, commented on the corrections and marks on the document, and emphasized "the fact that this must be maintained exactly as I read it to you." (Id. at 2098-99.) The judge left the instructions for the jury's convenience. (Id. at 2099.) The jury retired from open court to begin deliberations at 8:50 a.m. (Id. at 2101.)
At 10:32 a.m., the jury advised that they wished to report to the court, and court resumed at 10:50 a.m. (Id. at 2102.) The jury returned to court at 10:55 a.m. and delivered its verdict. (See id. at 2103-07.) Cone was found guilty on one count of Robbery by Use of a Deadly Weapon, three counts of Assault with Intent to Commit Murder in the First Degree, two counts of Murder in the First Degree During the Perpetration of a Burglary, and
The penalty phase of the trial began on April 23, 1982, after Cone was found guilty on all counts. (See ECF No. 232-8 at 2104-06; ECF No. 232-9.)
Strother outlined the law that would be charged for sentencing in his opening statement:
(ECF No. 232-9 at 2112-13 (internal quotation marks omitted).) He asserted that the jury could consider the proof presented in the guilt phase along with the proof that was about to be presented for sentencing when evaluating the aggravating and mitigating circumstances. (Id. at 2113.)
The State sought to prove four aggravating circumstances:
(Id. at 2113-14 (internal quotation marks omitted).)
The defense sought the application of the following mitigating circumstances:
(Id. at 2116-18 (internal quotation marks omitted).)
The State called its first witness for the penalty phase, J.A. Blackwell, Criminal Court Clerk for Shelby County. (See id. at 2119.) Blackwell identified records for Cone's three convictions on August 9, 1972, for robbery with a firearm. (See id. at 2120-21.) The offenses for which Cone was
On cross-examination, Dice pointed out, and Blackwell affirmed, that the records indicated that Cone was awarded the Bronze Star for his military service. (See id. at 2123-24.) Cone was a supply sergeant, E-5, and was honorably discharged in July 1969. (See id. at 2124.)
The State next called several MPD employees. James Holder testified that the fingerprints in State's Exhibits 65 and 71 were of the same individual. (See id. at 2126-27.) C.M. Stovall testified that "the whole [police] force was out there trying to arrest" Cone after the armed robbery. (Id. at 2129-30.) The search for Cone "lasted all through the night" into the next morning. (Id. at 2130.) Efforts to apprehend Cone continued until he was taken into custody in Florida. (See id. at 2130-31.) Bert Allen testified that on August 9, 1980, he attempted to arrest Cone for armed robbery. (See id. at 2132.) Jimmy Hammers testified that on August 13, 1980, he was one of the first officers to enter the Todds' house and observe the condition, location, and position of the bodies in the house. (See id. at 2133.) He examined photographs and testified that the photographs
Cone's attorney presented no evidence at the sentencing phase of trial and relied on mitigating circumstances presented during the guilt phase. (See id. at 2115-17, 2144.)
Patterson presented closing arguments for the prosecution. (Id. at 2144-47.) He only addressed the aggravating circumstances to be proved by the prosecution. (See id.) Dice waived final argument. (Id. at 2147.)
After a short recess, the jury was recalled at 2:45 p.m. and read the jury instructions for the sentencing phase (ECF No. 319-2 at 2219-22). (ECF No. 232-9 at 2149.) The jury was given a jacket (i.e., folder) with the indictments, a copy of the jury instructions from the guilt phase, and the additional charges related to the sentencing phase prior to deliberations. (Id. at 2150.)
The jury retired at 3:05 p.m. to deliberate. (See id.) The jury returned at 4:05 p.m. to deliver its verdict. (See id. at 2150-51.) The jury found that four aggravating circumstances had been proven: (1) Cone's previous convictions for a felony involving "the use or threat of violence to the person"; (2) that Cone "knowingly created a great risk of death to two or more
Cone's Brady claim was not addressed in the state courts and is subject to de novo review. See, e.g., Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Brooks v. Tennessee, 626 F.3d 878, 891 (6th Cir.2010). In Brady, the Supreme Court held, "the 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." 373 U.S. at 87, 83 S.Ct. 1194. Brady guarantees access to favorable evidence regardless of whether the evidence is admissible at trial. United States v. Phillip, 948 F.2d 241, 255-56 (6th Cir.1991). There are three components to a Brady violation: (1) "the evidence at issue must be favorable to the accused, either because it is exculpatory ... or impeaching"; (2) "that evidence must have been suppressed by the State, either willfully or inadvertently"; and (3) "prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Wogenstahl v. Mitchell, 668 F.3d 307, 323 (6th Cir.2012). Because of the Court's mandate, see supra Part I, the Court's inquiry is limited to the materiality/prejudice components of the Brady inquiry. See Cone, 2010 WL 2270191, at *4.
In the Brady context, prejudice or materiality is a difficult test to meet. Jamison v. Collins, 291 F.3d 380, 388 (6th Cir.2002). A reviewing court considers the withheld information "in light of the evidence available for trial." Jells v. Mitchell, 538 F.3d 478, 502 (6th Cir.2008). "Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the case would have been different." Wilson v. Parker, 515 F.3d 682, 701 (6th Cir. 2008) (citing Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)); see also Wogenstahl, 668 F.3d at 323. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Wilson, 515 F.3d at 701-702 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)) (internal quotation marks omitted); see also Wogenstahl, 668 F.3d at 323.
The Court must consider the effect of the suppressed evidence "collectively." Cone, 556 U.S. at 474, 129 S.Ct. 1769 (quoting Kyles, 514 U.S. at 436, 115 S.Ct. 1555) (internal quotation marks omitted); see Brooks, 626 F.3d at 892; see also Wong v. Belmontes, 558 U.S. 15, 15, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (per curiam) ("[I]t is necessary to consider all the relevant evidence that the jury would have had before it if [the defense] had pursued [a] different path — not just the mitigation evidence [the defense] could have presented, but also the [other] evidence that almost certainly would have come in with it."). The question is "not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Montgomery, 654 F.3d at 679 (quoting Kyles, 514 U.S. at 434, 115 S.Ct. 1555) (internal quotation marks omitted). The Sixth Circuit has repeatedly acknowledged that "[e]vidence that is merely cumulative to evidence presented at trial is not material for purposes of Brady analysis." Id. (alteration in original) (quoting Brooks, 626 F.3d at 898) (internal quotation marks omitted).
The withheld information consists of a series of MPD and FBI communications referring to Cone as a drug user, an eyewitness statement, MPD interview notes, supplemental offense reports, letters from the DA's office to Blankman, the DA's interview notes about Blankman and the Big Star robbery, and a letter about an insurance payment for the Big Star robbery, see supra Part V. (See ECF No. 230.) Cone contends that these documents are material because they demonstrate his known drug use, his demeanor at the time of the crimes, and the source of the money found in his car. (See ECF No. 266-1 at 3-5, 11-12.) These documents purportedly bring into question the veracity of the prosecution's rebuttal witnesses and the prosecutor's arguments. (Id. at 4-5, 10-12.) Cone asserts that the only issue at his trial was whether, as a result of drug use — flowing from service in Vietnam — he was guilty of first-degree murder and/or deserved the death penalty. (Id. at 5.) Cone argues that the prosecution secured the death sentence by claiming that Cone did not use and was not addicted to drugs, while withholding proof from numerous independent, unbiased witnesses who described him as being on drugs, behaving as if he were intoxicated, and having a drug problem including a long history of amphetamine use. (Id. at 1.) He contends that due process prohibits this type of manipulation of fact-finding, and that there is a reasonable probability that one juror, if he had heard the exculpatory evidence, would have voted for life. (Id. at 1, 15-16, 20; ECF No. 268 at 4-5.)
(Id. at 6.) Respondent asserts that the record contains clear and overwhelming evidence that Cone was not substantially impaired such that his judgment was substantially affected as evidenced by his calculated and deliberate conduct. (Id. at 6-13.)
Respondent notes that the evidence of the aggravating circumstances was so overwhelming that it took the jury only forty-five minutes to sentence Cone to death. (ECF No. 265 at 45-47.) Respondent contends that Cone's mitigating evidence was "thin" when balanced against the aggravating factors. (Id. at 48.) Respondent argues that the cumulative effect of the withheld information considered in view of the overwhelming weight of the evidence of the aggravating circumstances "clearly establishes that there is no reasonable probability that the effect of the proffered evidence would have changed the result of his sentencing proceeding." (Id. at 29; see also id. at 45, 53; ECF No. 269 at 13-15.)
To support Cone's Brady claim that the prosecution's witnesses knew about his
August 10, 1980, Law Enforcement Teletype System ("LETS") teletype authorized by Memphis Police Sergeant R.L. Roby: "Suspect is heavy drug user, armed and dangerous." (ECF No. 230-1);
(ECF No. 71 at 13-14.)
1. Roby, the LETS teletypes, Sue Cone, and the MPD Supplemental Offense Report (ECF No. 230-1 to -3; ECF No. 230-6; ECF No. 230-8)
Cone asserts that the withheld LETS teletypes and Sue Cone interview notes (see ECF No. 230-1 to -3; ECF No. 230-6) provided crucial information because Roby issued the "drug user" memos, yet he testified that he saw no track marks on Cone and that Cone did not appear to be a drug user.(See ECF No. 71 at 14.) Cone contends that Roby's credibility would have been "shattered" had the jury learned that in his conversation with Sue Cone (see ECF No. 230-6), Roby acknowledged that her brother had a drug problem and acted on that knowledge by sending bulletins throughout the nation about his drug use.(See ECF No. 266-1 at 4, 15-16; ECF No. 268 at 3.)
Respondent argues that Roby never testified that he did not believe Cone was a drug user.(See ECF No. 265 at 37.) Roby testified that he observed Cone without
Cone contends that the Supreme Court rejected Respondent's argument when Justice Stevens stated that the withheld evidence did not contradict Roby's testimony, but it unquestionably placed it in a different light. (See ECF No. 268 at 3.) The Court stated:
Cone, 556 U.S. at 471 n. 17, 129 S.Ct. 1769 (citations omitted).
Although Roby testified on direct and as a rebuttal witness, see supra pp. 114-15 and 983-84, Cone focuses his argument on Roby's rebuttal testimony. (See ECF No. 266-1 at 7, 15.) Cone seeks to use the withheld information to corroborate the evidence of his drug use and also to contest the prosecution's argument that he was a drug dealer. Roby testified that Cone was in possession of a large amount of drugs and drug paraphernalia. (See ECF No. 232-3 at 1505-10, 1540-44, 1552-53.) As a rebuttal witness, Roby testified that when he saw Cone in an undressed state after his arrest in Florida, Roby saw no needle marks on Cone's body, see supra p. 984. (ECF No. 232-6 at 1939.) Roby's testimony about loose syringes, broken pills, pipes, and marijuana butts found in the car supports the proposition that Cone was a drug user, see supra pp. 970-71. (See ECF No. 232-3 at 1505-10, 1540-44, 1552-53.)
(See ECF No. 230-8.) The argument that Roby was "not shy about proclaiming Cone's extensive drug use to law enforcement throughout the nation," (see ECF No. 266-1 at 15), is without merit because Roby was simply reporting hearsay about a suspect who was on the run to assist officers who were attempting to capture him. When the LETS bulletins were sent, Roby had not seen Gary Cone and had not spoken with Sue Cone.
Roby's telephone interview of Sue Cone occurred
Roby did not mention drugs until after Sue Cone said that her brother had a drug problem. Roby's statements are not an acknowledgment of Cone's drug problem, but a response to Sue Cone's comments. Roby appears to be merely attempting to obtain more information. The interview notes from Roby's conversation with Sue Cone are consistent with Roby's trial testimony and do not impeach his credibility.
Roby had no personal knowledge of Cone's drug use. Roby did not testify falsely. Lipman testified extensively about Cone's drug use. The disclosure of the supplemental police report and the LETS teletypes may have led to the fact that the police at the time the teletypes
Cone argues that the MPD offense report about Charles and Debbie Slaughter (ECF No. 230-4),
Cone argues that the description of him as "wild-eyed" described a drug-induced state and is consistent with a description of a person with dilated pupils and contraction of the eyelid muscles from amphetamine use. (See ECF No. 266-1 at 13-14.) The MPD report lists S.H. Cock as the reporting officer and also bears what may be Sergeant Roby's signature. (ECF No. 230-4.) The report, which is somewhat difficult to read, states:
(ECF No. 274-1.)
At trial, Charles Slaughter testified that the man was "walking rather briskly" (ECF No. 231-11 at 1118.) A description of the man that Charles Slaughter saw was given to defense counsel. (Id. at 1122.) Charles Slaughter verified that it was his statement and that he told police that the man "grinned a funny kind of a grin and muttered something and then walked on by." (Id. at 1123-24.) Debbie Slaughter (then Debbie Howell and now Debbie Slaughter-Crawford) testified about her identification of Cone to the police. (See id. at 1127-29.) Her description of Cone at trial was limited to his race, his clothing, and the fact that something was draped over his right hand. (See id. at 1127-28.) Cone was dressed in a mis-matched green suit and new black shoes when he robbed the jewelry store. (See id. at 979.) When the Slaughters saw Cone, he was evading a police chase; he had removed his shirt, was wearing cut-off shorts, was barefoot, and had something draped around his hand. (See id. at 1124, 1128.) Respondent contends that the Slaughters' descriptions of Cone (ECF No. 230-4) as walking "rather briskly," looking "wild-eyed and might not have been wearing shoes," are not surprising, especially considering that it was a hot summer day, that Cone had just robbed a jewelry store, that he had been in a high speed police chase, and that he had shot a police officer and a bystander. (See ECF No. 265 at 41-42.) Given the events of the day, it is understandable that Cone may have appeared "wild-eyed" or disoriented. The MPD report (ECF No. 230-4), without stronger evidence related to Cone's demeanor, has little exculpatory or impeachment value.
Cone requested an evidentiary hearing to explore Slaughter-Crawford's withheld statement and to show that Cone was "foaming at the mouth" when she saw him fleeing through Memphis. (See ECF No. 246.) On May 18, 2009, nearly twenty-nine years after seeing Cone in the alley, Slaughter-Crawford reportedly told Chris Armstrong, an investigator in the Capital Habeas Unit of the Federal Public Defender for the Middle District of Tennessee, that she remembered the incident with Cone very well and that Cone had a "crazy look on his face" and was "foaming at the mouth." (ECF No. 246-2.) Slaughter-Crawford refused to sign a declaration prepared by the Federal Public Defender's office. (Id.) Glori Shettles, a mitigation investigator, submitted a declaration that she was introduced to Slaughter-Crawford at a party on or about July 9, 2009. (ECF No. 246-3.) According to Shettles, Slaughter-Crawford told Shettles about the visit from Armstrong. (Id.) Slaughter-Crawford told Shettles that the man she observed run by her was "foaming at the mouth." (Id.) April Goode, Cone's trial counsel, indicated that the disclosure of the MPD report would have led to the additional description of Cone as "foaming at the mouth" which, along with the description of being "wild-eyed," was a classic description of an amphetamine user. (ECF No. 246 at 3-4; see ECF No. 246-1 at 2.)
This Court granted Cone leave to depose Slaughter-Crawford about her out-of-court statements that Cone had a "crazy look on his face" and was "foaming at the mouth." (ECF No. 254 at 2, 7.) In a
(Id. at 10-11.) When confronted with Armstrong's statement, Slaughter-Crawford responded, "I probably did say that, but I never signed anything because it is too long ago for me to know for sure." (Id. at 11.) She stated that she did not sign Armstrong's statement "for that very reason because it wasn't the whole truth, and it is thirty years of not remembering this case." (Id. at 13.)
Slaughter-Crawford remembers that she was fearful when she saw Cone and that he had a "desperate look." (Id.) However, she would not commit to a statement saying that Cone had a "crazy look" or was "foaming at the mouth." (Id.) Later in the deposition, she acknowledged that when she saw Armstrong the first time, she may have told him that Cone had a "crazy look" and was "foaming at the mouth."
(Id. at 20-21.)
Cone argues that when Slaughter-Crawford's "only interest was in telling the truth about Gary Cone's appearance as he ran through Memphis — Ms. Crawford told Chris Armstrong ... that Cone had a `crazy look on his face' and was `foaming at the mouth.'" (ECF No. 271 at 1.) Cone asserts that Slaughter-Crawford's deposition testimony is "simply not credible" and criticizes her "newly-claimed memory loss." (ECF No. 266-1 at 14 n. 1; see also ECF No. 271.)
There are credibility issues related to both Slaughter-Crawford's deposition testimony and the statements that Cone was "foaming at the mouth." Slaughter-Crawford did not tell police that Cone was "foaming at the mouth" at the time of the event or prior to trial. There is no evidence that she told anyone that Cone was "foaming at the mouth" until 2009, twenty-nine years after she saw Cone. Cone came in contact with several people in the Brodnax jewelry store, multiple police officers, Herschel Dalton, and the Slaughters that day. There is no corroborating evidence that Cone was "foaming at the mouth" or exhibiting other symptoms that might be associated with his purported drug use from other eyewitnesses. Armstrong and Shettles's statements are hearsay, and Slaughter-Crawford will only commit to a statement that Cone looked "desperate." The Court finds that speculation that the disclosure of this document would have led to evidence that Cone was exhibiting symptoms of amphetamine use during his escape after the Brodnax robbery does not tend to show that he was substantially affected by his drug use at the time of the murder and is not sufficient to establish a reasonable probability that the outcome of the sentencing proceedings would have been different. See Henness, 644 F.3d at 325-26 (stating that speculation does not establish a Brady violation).
The second piece of withheld information about Cone's demeanor is Robert McKinney's statement about the Stepherson's Big Star robbery on August 8, 1980. (ECF No. 230-5.) The statement is four pages. (See id.) The focus of Cone's argument about whether Cone appeared to be "drunk or high" or "acted real weird" appears on the third page of the statement. (Id. at 1809.) On the first page of McKinney's statement, he describes in narrative form what he saw on August 8, 1980, stating: "I thought he was just shoplifting and I just kinda observed him from then and [until] he got to the front of the store...." (Id. at 1807.) McKinney further states:
(Id. at 1809-10.)
Cone focuses on McKinney's statements that Cone acted "weird" and appeared to be "high." (ECF No. 71 at 13; ECF No. 266-1 at 3, 13-14; ECF No. 268 at 3.) Respondent contends that the description of Cone acting "real weird," but "he didn't sound drunk ... he just looked strange," (ECF No. 230-5 at 1809-10), is consistent with someone who is nervous when preparing to rob a store and would not be viewed as unusual by a jury. (See ECF No. 265 at 41; ECF No. 269 at 6-7.) McKinney's statement indicates that McKinney believed that Cone may have been "high," although he did not necessarily know how someone who was "high" would act. McKinney provides no detail about Cone's physical appearance or behavior that would confirm that Cone was intoxicated.
McKinney's statement should be read in context in order to ascertain its relevance and exculpatory value. The Big Star robbery was the day prior to the Brodnax robbery. The jury was not aware of the Big Star robbery. McKinney did not testify at trial, and his statement does not impeach the testimony of other witnesses.
Cone's behavior could simply reflect the fact that he was staking out the store that he was about to rob. At best, disclosure of this statement could have resulted in obtaining additional information from McKinney about Cone's behavior the day of the Big Star robbery. Still, a description of Cone's behavior at the Big Star robbery would not lead to the conclusion that, at the time of the murders two days later, Cone was on drugs, nor would it indicate the degree of his intoxication or impairment. Further, the prejudice associated with presenting the jury with additional evidence of Cone's criminal activity would outweigh the probative value of a description indicating that Cone acted "weird" two days prior to the murders.
The third piece of withheld evidence about Cone's demeanor is the Pompano Beach Police Department Supplement written by Sergeant Grieco. (ECF No. 230-7.) Cone contends that Grieco "went to great pains" to describe him as "frenzied" and "agitated," descriptions that are consistent with Cone's actual drug use and drug addiction. (ECF No. 266-1 at 14.) Grieco's supplement describes the police response to an armed robbery on August 13, 1980, which involved a suspect described as a "W/M with a brown two piece suit, brown hair and carrying a brown satchel." (ECF No. 230-7.) Grieco and Detective D. Flynn
Cone contends that normal people are not depicted in the manner that he was. (See ECF No. 268 at 3.) Respondent argues that the officer's description was not surprising given the fact of the robbery, assaults, and other events that had recently taken place and was "clearly more probative of an individual fleeing police than a person on drugs." (ECF No. 265 at 42; see also ECF No. 269 at 8-9.)
The disclosure of this report may have caused Cone's defense counsel to question Grieco and D. Flynn about Cone's appearance and demeanor at the time of his arrest in Florida, three days after the Todds' murders. Given the fact that Grieco was pursuing Cone as a fleeing robbery suspect, the descriptions "frenzied" and "agitated" do not necessarily lead to a conclusion that Cone was either on drugs or experiencing withdrawal. The undisputed facts are that Cone had just moments earlier robbed a drug store and had, in the prior week, robbed a grocery store and a jewelry store, shot a police officer and a bystander, beaten an elderly couple to death, fled from Memphis, through Birmingham, Alabama, to Florida, and attempted to change his identity. This sequence of events undoubtedly could have caused Cone to behave in a frenzied or agitated manner, regardless of his drug use, state of intoxication, or withdrawal.
There was little testimony at trial about Cone fleeing the police after the robbery in Florida. The report indicates that during the exchange with police, Cone fired two shots at police and attempted to fire a third shot, but his gun did not discharge. (See ECF No. 230-7; ECF No. 274-2 at 621.) The report could not be used to impeach any witness at trial. The report, much like McKinney's statement about the Big Star Robbery, provides evidence that would be prejudicial to Cone as it shows that he committed yet another crime and
The evidence at trial indicates that Cone was no longer in possession of drugs after he abandoned his car in an attempt to escape from the police. Hayes, Schratz, the Mizes, the Slaughters, Officer Allen, Dalton, Clark, and Tuech came into contact with Cone from the time period of the Brodnax robbery up until the Todds' murders. Both Dice and the prosecution presented arguments about Cone's mental condition based on what these witnesses saw regarding Cone's behavior and demeanor during this time period, see supra pp. 985-86, 987-88, 989-92. The Court properly instructed the jury that argument was not evidence, and based on that instruction, the jury found that there were no mitigating factors "sufficiently substantial" to outweigh the aggravating factors, see supra pp. 996-97. Even considering the MPD report about the Slaughters, McKinney's statement, and the Pompano Beach Supplement together, the descriptions of Cone's appearance do not provide reliable evidence that he was intoxicated to the point that his judgment was substantially affected. There are no reliable corroborating accounts of Cone's appearance or behavior that lead to the conclusion that Cone either had access to, used, or was intoxicated on drugs when he murdered the Todds. Further, Cone's escape was well-executed despite a manhunt in Memphis. There is no indication that Cone was losing his mind, as Lipman described, from withdrawal symptoms. The Court finds that there is not a reasonable probability that the disclosure of the Pompano Beach report individually or cumulatively with the MPD report or the McKinney statement would lead to sufficient corroborating evidence of Cone's drug use, state of intoxication, or withdrawal at the time of the murders to change the outcome of the sentencing proceedings.
Cone argues that the following FBI records are replete with documentation that he was a drug user:
(See ECF No. 71 at 14-17.) Cone argues that these documents could have been used to impeach FBI Agent Eugene Flynn and discredit the prosecution's claims that Cone did not use drugs. (See id. at 16; ECF No. 266-1 at 13-15.)
Respondent contends that these FBI documents are not material because the documents: (1) "do not on their face contain admissible evidence"; (2) do not impeach Flynn's testimony because Flynn did not state that Cone did not appear to be a drug user; and (3) as the Sixth Circuit Court of Appeals stated, "[i]t would not have been news to jurors that Cone was a `drug user'." (ECF No. 265 at 33-34) (quoting Cone v. Bell, 492 F.3d 743, 757 (6th Cir.2007) (internal quotation marks omitted).) Respondent argues that the evidence would not have impeached Flynn's testimony because: (1) Cone "denied that he suffered any physical or mental problems except for slight drug withdrawal symptoms and a slight cold"; (2) he was mentally alert and able to recount details about his travels from Memphis to Florida; (3) he suffered no mental problems or blackouts; (4) he stated that he fled to Florida where he stayed with Blankman; (5) he "changed his appearance and identity"; and (6) he changed his identity by obtaining a voter registration card and taking a driving test to obtain a driver's license under an assumed name. (Id. at 34-35.) Respondent argues that the fact that Lipman's report was in the FBI files was neither unusual nor nefarious, and had no probative value as to Flynn's veracity. (Id. at 35.)
FBI documents are inadmissible hearsay and could not be presented at the guilt phase of trial. Cone could obtain value from their disclosure if the documents caused his attorneys to engage in further investigation or if they were useful in impeaching the credibility of a witness at trial. The disclosure of these documents only reveals that the FBI believed that Cone was a heavy drug user and that Cone possessed a large amount of pills while incarcerated in Oklahoma. Cone and the jury were both aware of the essential facts related to his drug use. Lipman testified extensively at trial about Cone's heavy drug use. Roby testified about the large quantity and variety of drugs found in Cone's car. There was substantial evidence of Cone's drug use at trial, regardless of whether the jury ultimately believed that Cone was just a drug user or both a drug user and drug dealer. The disclosure of the FBI documents does not lead to exculpatory information about Cone's drug use that had not already been presented to the jury.
The impeachment value of the FBI documents is very limited as it relates to Flynn's testimony. Flynn acknowledged that Cone was a drug user, testified about Cone's complaint of withdrawal symptoms and his admitted use of cocaine, Dilaudid,
Flynn's lay opinion that Cone had the capability to understand the nature of his acts, the requirements of the law, and conform his conduct (see id. at 1924) was based on both Cone's representation that he did not have any mental problems and the facts and evidence related about Cone's ability to execute the crimes, escape, and change his identity. The fact that Flynn was a FBI agent who was investigating "Gerald Mason Harmon" (Cone) to determine his identity and that he was called as a prosecution witness makes it obvious to the jury that Flynn was not a disinterested witness. The disclosure of the documents in question is not necessary for the jury to reach that conclusion.
Cone's argument about Lipman's report (ECF No. 230-23) being in the FBI file is unpersuasive because it has no probative value as to Flynn's veracity. (See ECF No. 265 at 35-36.) There is nothing inherently wrong with the prosecution sharing a copy of Lipman's report with a law enforcement agency. The record does not indicate when the report was provided to the FBI and if Flynn had access to it prior to testifying. Lipman's report described Cone's drug use, his dependence on opiates, his "period of approximately 18(? ?) hours of drug-free state," and his withdrawal beginning August 8, 1980, and as he fled to Key West. (ECF No. 230-23 at 1924-25.) Flynn's testimony about Cone's drug use was limited to his personal observance and what Cone related to him. The testimony was consistent with the Lipman report to the extent it acknowledged Cone's drug use and withdrawal symptoms. Lipman's report does not put Flynn's veracity into question.
The Court finds that the FBI records do not impeach Agent Flynn's testimony, nor would they lead to information that would impeach his testimony. Therefore, there is not a reasonable probability that if the FBI records were disclosed the outcome of the sentencing proceedings would have been different.
Cone contends that the following withheld evidence is material because it could have been used to attack the credibility of Ilene Blankman's rebuttal testimony, given on Wednesday, April 21, 1982:
(See ECF No. 71 at 16-17; ECF No. 266-1 at 4, 7-9.) In the first letter, Patterson included a copy of Blankman's statement. (ECF No. 230-20.) In the second letter, Patterson included a copy of Blankman's statement, a subpoena, and directions about when Blankman should appear to testify. (ECF No. 230-21.) The letter also stated that Patterson would be contacting FBI Special Agent Kelly to coordinate Blankman and Kelly's appearance in Memphis. (Id.) The third document is a memo which describes an incident where a woman named Gloria, who claimed to be a personal friend of Cone's trial lawyer John Dice, approached Flynn, Kelly, Blankman, Strother, and Patterson at a restaurant, called Blankman a "turncoat," and accused her of "trying to burn" Cone. (ECF No. 230-22 at 1946.) The fourth document is the DA's handwritten notes of an interview with Blankman which stated that Cone never used drugs around her and that she never saw Cone with drug paraphernalia. (ECF No. 230-24.) The final document is a letter from Patterson and Strother thanking Blankman for her cooperation in the trial and advising her of the sentence. (ECF No. 230-25.)
Cone contends that these documents would show the "cozy relationship" between the prosecution and Blankman and that the pretrial interview notes, which are very cursory, are not consistent with Blankman's damaging testimony. (See ECF No. 266-1 at 4-5.) Cone claims that these notes would have "tipped the scales in favor of life" because they do not reflect Blankman's testimony that Cone was not paranoid and not acting in an unusual way. (Id. at 16 n. 3; see ECF No. 232-6 at 1875-76.)
Respondent argues that these documents do not diminish Blankman's credibility. (See ECF No. 265 at 43-44.) Blankman was the one witness who had spent extended periods of time with Cone on multiple occasions between March and August 1980. (See id. at 44.) Blankman testified that she had never seen any indication that Cone was using drugs or observed drugs in his possession and that he was not acting unusual when he came to her home in August 1980. (See id. at 44, 52-53; ECF No. 232-6 at 1870-76, 1882-83.) Respondent argues that the jury knew that Blankman was a cooperating witness, and that these "innocuous letters," including a thank-you note after trial, could not have had any impact on the jury's view of her veracity. (See ECF No. 265 at 52-53.)
Blankman was a prosecution witness, although purportedly a friend of Cone. She testified that she came to Memphis with FBI Agent Kelly two days prior to trial. (ECF No. 232-6 at 1888.) These factors, Blankman's admitted drug use, and her participation in helping Cone obtain a new identity as Gerald Mason Harmon put Blankman's credibility in question. Dice attacked her credibility based on the fact that she came to Memphis with a FBI agent, who never testified in the case, "on her arm," see supra pp. 987-88, as well as on other issues. The Court properly instructed the jury on credibility issues, see supra pp. 993-94.
The letters providing Blankman's statement (ECF No. 230-20), addressing the subpoena and her travel to Memphis to testify (ECF No. 230-21), and informing her of the outcome of the trial and thanking her for her cooperation (ECF No. 230-25) have no probative value. These letters do not direct her to testify in any particular manner or demonstrate that she received any benefit from her testimony.
The prosecutor's notes stating Cone "[n]ever used drugs around [Blankman]" do not contradict Blankman's testimony
(Id. at 1897.) Although the interview notes are not entirely consistent with Blankman's testimony, there is nothing in the notes that impeaches Blankman in any significant way. The jury was aware of Blankman's purported friendship with Cone, her personal problems with drugs and the law, and the fact that she was escorted to Memphis by a FBI agent. The jury had an adequate opportunity to determine the credibility of her testimony. See Jalowiec v. Bradshaw, 657 F.3d 293, 313 (6th Cir.2011) (stating that impeachment evidence may not be material where weaknesses and inconsistencies in the prosecution's case were exposed on crossexamination).
Cone alleged that the presence of Lipman's report in FBI files could be used to attack Blankman's credibility. (See ECF No. 71 at 17.) That argument, as it relates to Blankman, is not developed in Cone's motion for relief. The mere presence of the report in an FBI file provides no basis to attack Blankman's credibility where there is no indication that she saw the report, that her testimony was altered to conform with the report, or that her testimony was untruthful.
The FBI report about the incident involving "Gloria" is inadmissible hearsay. "Gloria" was a personal friend of Dice, who was in love with Dice and wanted to help him with the trial, and was very suspicious of the prosecutors and the State's testimony. (ECF No. 230-22 at 1946.) "Gloria" also informed Blankman, the FBI agents, and prosecutors that she would discuss the meeting with Dice the following morning. (Id.) Gloria's opinion of Blankman is not relevant to Cone's sentencing. The report states "Blankman made no response to her accusations and all parties involved refused to discuss the trial explaining that it was not proper." (Id.) Blankman had testified earlier that day, and nothing about the fact that these persons (the prosecutors, a prosecution witness, and law enforcement agents) were having dinner together after the trial is exculpatory.
The documents at ECF Nos. 230-20 to -25 do not impeach Blankman's credibility. The Court finds there is not a reasonable probability that the outcome of Cone's sentencing would have changed based on the disclosure of these documents.
Cone relies on the following documents to refute the prosecution's argument that the money found in the car was from selling drugs:
(ECF No. 71 at 17.) Cone asserts that "while the prosecutor argued that [the] money and drugs in Cone's car showed he was a drug dealer, the prosecutor knew that almost all of the money in Cone's car came from [the Big Star] robbery" because he indicted Cone for that robbery and returned the money to the victim. (See ECF No. 266-1 at 16.)
Respondent contends that even assuming that a portion of the money found in Cone's car was from the Big Star robbery, that fact does not support Cone's claim that he was merely a drug user. (See ECF No. 265 at 40.) Respondent contends that the money was obviously "not all the money the petitioner had in his possession" when considering that Cone had money to travel from Memphis to Miami, buy new clothes in Birmingham, and pay for an airline ticket from Miami to Key West. (Id.)
The DA's notes indicate that the DA, at least, considered indicting Cone for the robbery with a deadly weapon of Stepherson's Big Star for the amount of $1893.72. (ECF No. 230-26 at 883.) In a September 11, 1980, letter from the Insurance Company of North America to the MPD, the insurance company notes that a payment of $2013.72 was made to the insured as a result of the robbery on August 8, 1980. (ECF No. 230-27.) There is no indication in these documents, despite Cone's assertions, that the police or DA paid the money recovered from Cone to either Big Star or the insurance company, only that the insurance company paid Big Star for their loss.
Roby testified that $1932 was found in a bag in Cone's car and that the "total cash... found in the automobile" was $2400. (See ECF No. 232-3 at 1511, 1535.) The amount found in the car was substantially in excess of the loss reported by Big Star. The Tennessee Court of Criminal Appeals noted:
Cone v. State, 747 S.W.2d 353, 354 (Tenn. Crim.App.1987). Respondent notes that Cone, despite having left a substantial amount of money in Memphis, had money to pay for travel and execute his escape.
At trial, Cone's mother testified that Cone had worked in restaurants in Key West, Florida. (See ECF No. 232-4 at 1651-52.) Parole records dated July 1979, which were introduced at sentencing, stated that Cone had worked at a car dealership in Muskogee, Oklahoma, and that his sister was assisting him in obtaining employment in Chicago. (See ECF No. 232-11 at PageID 2936-37; ECF No. 291-47 at PageID 6780-81.) The records indicate that he had $662.43 in savings. (See ECF No. 232-11 at PageID 2937; ECF No. 291-47 at PageID 6781.) There was no other evidence related to Cone's employment after his release from prison in Oklahoma in November 1979. The only other source of money mentioned at trial was an unspecified loan from his mother for him to go to law school, see supra p. 977.
Evidence at trial indicated that despite a lack of employment or income, Cone purchased a motorcycle (see ECF No. 232-3 at 1533, 1552) and traveled to Chicago and Hawaii (see ECF No. 232-4 at 1651-52). A large amount of drugs were found in Cone's car. (See ECF No. 232-3 at 1505-10,
The argument that Cone was a drug dealer is not evidence, and the trial court appropriately instructed the jury, see supra pp. 992-93. (See ECF No. 231-10 at 944, 955; ECF No. 232-7 at 2015-16; ECF No. 232-11 at 2163.) The trial court instructed, "Statements, arguments, and remarks of counsel are intended to help you in understanding the evidence and applying the law, but they are not evidence. If any statements were made that you believe are not supported by the evidence, you should disregard them." (ECF No. 232-11 at 2163.) The trial court further instructed, "You should consider all of the evidence in the light of your own observations and experience in life." (Id.) Dice also reminded the jury in his closing argument that counsel's arguments were not evidence, see supra p. 985.
Cone, more than anyone else involved in this case, knew about the source or sources of the money found in or around his car during his escape. The evidence about the Big Star robbery would be more prejudicial to Cone than probative, see supra pp. 1006-08. The Court finds that the withheld evidence about the money from the Big Star robbery (ECF No. 230-26 to -27) does not put the case in such a different light as to undermine confidence in the sentence.
In determining whether there is a reasonable probability that the outcome of Cone's sentencing would have been different with the inclusion of the withheld evidence, the Court must "assess the effect of the suppressed evidence `collectively,' rather than `item by item.'" Cone, 556 U.S. at 474, 129 S.Ct. 1769 (quoting Kyles, 514 U.S. at 436, 115 S.Ct. 1555); see also Brooks, 626 F.3d at 892.
Cone relies heavily on the Supreme Court's opinion to support his Brady claim. He focuses on the language that a "key component" of the prosecution's strategy "involved discrediting Cone's claims of drug use." (ECF No. 266-1 at 7 (quoting Cone, 556 U.S. at 454-55, 129 S.Ct. 1769) (footnote omitted) (internal quotation marks omitted).) The Supreme Court noted that the State established that Cone's experts' opinions "were based solely" on Cone's representations about his drug use.
Id. at 471, 129 S.Ct. 1769. (See ECF No. 266-1 at 11-12.)
The majority of the testimony about Cone's drug use was presented by Lipman and based on Cone's statements to him. Cone's mother testified that a package of marijuana was shipped to Cone after he returned from Vietnam, which was approximately twelve years prior to the Todds' murders. Jaremko diagnosed Cone with substance-abuse disorder.
Cone contends that Roby, Flynn, and Blankman were used to discredit his argument that his drug use and addiction made him less culpable. (ECF No. 266-1 at 7-8.) Cone contends that these witnesses were not being truthful. (See id.) He argues that prosecution experts Bursten and Hutson opined that Cone had no defense to the crimes, but that Hutson explained that this opinion was "based upon the fact that [Hutson] had `very little' evidence to corroborate Cone's history of drug use." (Id. at 7-8 (emphasis omitted).) Cone argues that the withheld evidence was material because it addressed critical mitigating evidence about drug use and mental illness, and the sentencing hearing would have had an "entirely different focus and character" had it been disclosed. (Id. at 12 (internal quotation marks omitted).) Cone argues that the withheld evidence could have "provided significant impeachment of the prosecution's rebuttal witnesses," firmly establishing that he was actively using amphetamines at the time of the crimes, and providing independent corroboration of his accounts of drug use. (Id. at 15.) Cone argues that his defense would have been strengthened through "independent corroborative proof of drug use and addiction withheld by the prosecution." (Id. at 17.) He contends that the mitigating evidence about his remorse
The withheld information provides limited information about Cone's drug use and no corroboration for Cone's theory about amphetamine psychosis. See LaCaze v. Warden La. Corr. Inst. for Women, 645 F.3d 728, 736 (5th Cir.2011) (stating a Brady violation is more likely to occur with strong corroboration). None of the state's three rebuttal fact witnesses saw Cone just prior to or at the time of the Todds' murders. Although Cone did not know at trial about the withheld documents, he knew the essential facts of his own drug use. See Jalowiec, 657 F.3d at 311. The law enforcement witnesses had no personal knowledge of Cone's drug use, and the impeachment value of the undisclosed documents is limited.
Blankman is the only rebuttal witness who had personal knowledge of Cone's drug use. Blankman's testimony exceeded the scope of the DA's interview notes. The DA's notes are cursory on their face and do not purport to be exhaustive. The
The fact of Cone's drug use, in contrast to the assertion that Cone was a drug dealer, was a central defense issue at trial.
Cone, 492 F.3d at 757. The withheld evidence provides no insight into the doses, frequency, and intervals for Cone's drug use. Only Lipman's testimony was that detailed, and even he admitted that his opinion would change depending on these factors.
Respondent argues that, "even if petitioner's new evidence firmly established [Cone] was a `drug user', that fact could just as likely be viewed as aggravating rather than mitigating by the jury" and could have created a "two-edged sword which can harm a capital defendant as easily as it can help him at sentencing." (ECF No. 265 at 48 (quoting Tompkins v. Moore, 193 F.3d 1327, 1338 (11th Cir. 1999)) (internal quotation marks omitted).) The Court finds that there is no reasonable probability that a jury would perceive corroborating evidence of Cone's drug use as a factor mitigating in Cone's favor toward a life sentence.
Regarding the collective effect of withheld evidence, three Sixth Circuit cases are instructive.
In Henness v. Bagley, 644 F.3d 308 (6th Cir.2011), cert. denied sub nom. Henness v. Robinson, ___ U.S. ___, 132 S.Ct. 1970, 182 L.Ed.2d 822 (2012), the petitioner alleged a Brady violation based on the state's failure to disclose five police informational summaries. Henness, 644 F.3d at 324-25. The Sixth Circuit determined that Henness had knowledge of information contained in two of the summaries. Id. at 325. The third summary contained hearsay, and Henness did not make a showing that it led to admissible evidence which could have resulted in a different result at trial. Id. The fourth and fifth summaries contained information about a threatening letter received by Henness's mother which Henness argued showed that the murder for which he was convicted involved a "drug deal gone bad." Id. The court determined, however, that there was no link between the letter and the murder, and speculation was insufficient to establish a reasonable probability that the result at trial would have been different. Id. at 325-26 (citing Cone, 556 U.S. at 449, 129 S.Ct. 1769). The court concluded that the withheld evidence, when considered cumulatively, did not establish a reasonable probability that the trial would have been
In Beuke v. Houk, 537 F.3d 618 (6th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2792, 174 L.Ed.2d 294 (2009), the Sixth Circuit determined that nine pieces of withheld evidence did not have the cumulative effect of establishing a reasonable probability that their disclosure would have altered the result of the proceeding. The petitioner alleged that the prosecution failed to disclose evidence involving information about initial descriptions of the assailants, other suspects, witness' inconsistent statements, and a witness's criminal history; evidence that a FBI witness was a paid informant and that a witness was being investigated for child pornography; and evidence that more than one gun was used to shoot the three victims. Beuke, 537 F.3d at 634-36. The court found that the inconsistent statements were related to tangential issues, not the petitioner's guilt, and that objective evidence sufficiently linked the petitioner to the murder. Id. at 635-36. The court also found that the victims' in-court identifications of their assailant were not undermined by inaccurate sketches or physical descriptions. Id. at 636. Further, the outcome of the trial was not prejudiced by the lack of a witness's criminal record, a list of suspects, or the investigating officer's handwritten notes. Id. Taken together, the court concluded, "Considering as we must the cumulative effect of all nine pieces of undisclosed evidence, we find that Beuke has failed to establish a `reasonably probability' that the disclosure of this evidence would have altered the result of this proceeding." Id. The withheld evidence did not constitute a Brady violation. Id.
In Fautenberry v. Mitchell, 515 F.3d 614 (6th Cir.2008), cert. denied, 555 U.S. 951, 129 S.Ct. 412, 172 L.Ed.2d 299 (2008), the Sixth Circuit found there was no Brady violation. Fautenberry, 515 F.3d at 628-32. Fautenberry asserted that the prosecution failed to disclose five categories of exculpatory evidence. Id. The court addressed each category. Id. After having rejected the first four Brady claims, in addressing the fifth category of evidence the court stated:
Id. at 632 (fourth and fifth alterations in original) (footnote omitted) (citations omitted).
Fautenberry is particularly relevant to the instant case because both cases involve an issue of the petitioner's mental state and its effect on sentencing. Similar to the overwhelming evidence of guilt and the heinous nature of the crimes in Fautenberry, the evidence of the appropriateness of Cone's sentence was overwhelming given the brutality — i.e., the heinous, atrocious, and cruel nature — of the Todds' murders, Cone's prior criminal history, and Cone's escape. To the extent that Cone attempted to mitigate his sentence by demonstrating that he was in an altered mental state at the time of the crimes, the focused and efficient manner in which Cone executed his escape negates that argument.
The Court finds that the withheld evidence, when considered cumulatively, does not establish a reasonable probability that, had it been disclosed, Cone's sentence would have been different.
For the balance of aggravating and mitigating factors to have weighed in favor of Cone at trial, a high degree of personal drug use and mental impairment had to be established as to Cone. Cone's guilt was uncontested. Overwhelming physical and testimonial evidence supported the charges. See Cone, 747 S.W.2d at 354. The proof was that Cone was deliberate and calculated in his actions when perpetrating the crimes and executing his escape. There was overwhelming evidence of the aggravating factors that: (1) Cone had been convicted of one or more felonies prior to this incident; (2) Cone brutally beat and killed an elderly couple because they "ceased to cooperate" and thus his actions were "especially heinous, atrocious, or cruel" and involved torture or "depravity of mind"; (3) the murders were for the purpose of preventing a lawful arrest or prosecution; and (4) the murders constituted felony-murder in the perpetration of burglary. See Cone, 665 S.W.2d at 94-95. The mitigating factors to be considered included evidence about Cone's service in Vietnam and his Bronze Star, his showing of remorse as recalled by Jaremko, the substantial evidence of his drug use, and the evidence of his drug-induced mental state at the time of the crimes. Cone's experts presented different, but not necessarily
In the instant case, the evidence of mental impairment, especially impairment related to drug use, could be just as aggravating as it is mitigating. See Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1410, 179 L.Ed.2d 557 (2011) (stating new evidence of more serious substance abuse, mental illness, and criminal problems is "by no means clearly mitigating" because the jury might have concluded that the petitioner was simply beyond rehabilitation); Sutton v. Bell, 645 F.3d 752, 763 (6th Cir.2011) (stating "[i]t is well established that ... extensive involvement with drugs" is "often viewed by juries as harmful," not mitigating); Pietri v. Fla. Dep't of Corr., 641 F.3d 1276, 1284 (11th Cir.2011) ("[D]etailed evidence of extensive drug abuse can be a two-edged sword." (internal quotation marks omitted)); Vasquez v. Thaler, 389 Fed.Appx. 419, 429 & n. 40 (5th Cir.2010) ("The Supreme Court has held that evidence of mental impairment can be both mitigating and aggravating...." (citing Penry v. Lynaugh, 492 U.S. 302, 324, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002))); see also Wackerly v. Workman, 580 F.3d 1171, 1178 (10th Cir.2009) ("[W]hatever mitigating effect such evidence might have had if presented, it is just as likely the jury would react negatively to it." (internal quotation marks omitted)).
As stated earlier, supra Part I, the Supreme Court, in returning this case to the District Court, specifically observed:
The Court has reviewed the entire record in this case plus all of the undisclosed evidence and its probable effect. The standard to be applied by the District Court in evaluating the merits of defendant's Brady claim is whether there is a reasonable probability that, had the suppressed evidence been disclosed, the result of the proceeding would have been different.
The question for this Court is the effect of the withheld evidence on Cone's sentence. The Court has analyzed each of the individual Brady claims and made a determination as to each claim as to whether the suppressed evidence might have persuaded one or more jurors that Cone's drug addiction — especially if attributed to his honorable service in Vietnam, was sufficiently serious to justify the imposition of a life sentence rather than the imposition of the death penalty. See supra pp. 1002-03, 1006, 1007-08, 1009, 1011, 1013-14, 1015. The Court has also analyzed the cumulative effect of the undisclosed material. See supra p. 1018.
Taken as a whole, the withheld evidence is insignificant in comparison to the overwhelming weight of evidence regarding Defendant's guilt and the aggravating sentencing factors. For the reasons previously stated, it is the conclusion of the Court that there is not a reasonable probability that had the withheld evidence been disclosed, the result at the sentencing hearing would have been different. The withheld evidence does not undermine confidence in the sentence determined by the jury.
Therefore, Cone's Brady claims are found to be without merit and are DENIED. Respondent's Motion for Partial Summary Judgment on the Brady claims is GRANTED. Petitioner's Motion for Relief on the Brady Claims is DENIED.
APPENDIX OF EXHIBITS
No. Item CM/ECF Docket Entry
1 Collective: 3 photos Brodnax Jewelry Store,
black & white, 3x5, 8/9/80 ECF No. 284-1 and -2
Exterior of Store ECF No. 284-1
Collection of 3 photos: exterior, interior
counter, interior counter reverse ECF No. 284-2
2 Photo, auto black & white, 3x5 ECF No. 284-3
3 3 sheets, collective recovered merchandise
taken in robbery, ECF No. 284-4 to -6
Photocopy of watches ECF No. 284-5
Phototcopy of rings ECF No. 284-6
4 Photocopy of group of 6 mug photos, 1 sheet ECF No. 284-7 to -9
Cone mugshot ECF No. 284-8
Group of photocopied photos (6) Hayes
reviewed on day of robbery ECF No. 284-9
5 Collective: 8 mug photos black & white, 2x4 ECF No. 284-10 to -13
Group of 8 photos Hayes reviewed ECF No. 284-11
Photo of Cone ECF No. 284-12
Photo of Cone, reverse ECF No. 284-13
6 Collective: jacket, trousers, Olive drab ECF No. 284-14 and -15
7 Pair of black shoes ECF No. 284-16 and -17
8 Photographic aerial map of Midtown area,
grey/blue paper, approx. approx. 3′ × 5′ ECF No. 284-18 and-19
9 Photo, suspect's vehicle, black & white, 2x3 ECF No. 284-20
10 Photo, area where shots fired ECF No. 284-21
11 Pair of blue trousers ECF No. 284-22 and -23
12 Rough sketch of area for demonstrative purposes, yellow sheet ECF No. 284-24 13 Photocopies of two groups of mug shots, 2 sheets stapled together ECF No. 284-25 to -27 Group of photos of short-haired men, reviewed by Benbrook at MPD station ECF No. 284-26 Group of photos of long-haired, unkempt men, reviewed by Benbrook at MPD station (same photocopy as ECF No. 284-9) ECF No. 284-2714 Gallon jug labeled "grape juice" containing liquid ECF No. 284-28 to -30 15 Collective: 3 photos, Clark home, 224 Hawthorne, black & white, 3x5 ECF No. 285-1 3 photos: 1. Clark's brother's house at 224 Hawthorne 2. Grape juice jug laying in yard 3. Front yard of house north of Clark's brother's house with mat Clark was placed on after being shot16 Collective: 2 photos, back yard north of 224 Hawthorne, black & white, 3x5 ECF No. 285-2 and -3 2 photos ECF No. 285-2 1. View of backyard from shooter's perspective 2. View of backyard from Clark's perspective Close-up ECF No. 285-3 photo 1, marked with position of shooter and Clark ECF No. 285-317 Aerial photo of crime scene area Hawthorne/Auburndale Streets, black & white, 10x16 ECF No. 285-4 to -6 Aerial view ECF No. 285-5 Close-up of marked area where Clark was shot, car's path ECF No. 285-618 Blue gym shorts ECF No. 285-7 and -8 19 Collective: 7 photos in envelope, mug photos, color, 1x1 ECF No. 285-9 to -11 20 Aerial photo of crime scene area 143 North Auburndale, black & white, 10x16 ECF No. 285-12 to -15 Aerial photo ECF No. 285-13 Aerial view, marked by Slaughter with Cone's path, Slaughter's house, Dalton's house ECF No. 285-14 Close-up of right side of aerial view with markings ECF No. 285-1521 Photocopy of 6 mug photos, 1 sheet, black & white ECF No. 285-16 and -17 Collective of 6 photocopied mug photos, identified with Debbie Slaughter's signature ECF No. 285-16 Close-up of Cone from ECF No. 285-16 ECF No. 285-1722 Hollow-point .38 caliber slug in white envelope ECF No. 285-18 and -19 23 Lead slug in white envelope ECF No. 285-20 24 Collective: 5 photos, 141 — 143 North Evergreen, black & white, 3x5, 8/9/80 ECF No. 285-21 to -23
Envelope ECF No. 285-21 and -22 Photos of Dalton residence ECF No. 285-23 5 photos: 1. Front of house 2. House with Monte Carlo behind the residence 3. Driveway between houses facing Monte Carlo 4. Back of Monte Carlo with license plate 5. Left profile of Monte Carlo, driver's door ajar 25 Aerial photo of crime scene area Evergreen/Belvedere Streets, black & white, 10x16 ECF No. 286-1 to -3 Aerial photo ECF No. 286-2 Close-up of area marked with Dalton's house, arrow of direction Cone traveled, Linda Teusch's house ECF No. 286-326 Photo — Mr. Shipley Todd, Mrs. Cleopatra Todd, color, 8x10, August 1980 ECF No. 286-4 27 Telephone bill for Todd residence, in envelope/advertising material ECF No. 286-5 and -6 28 Newspaper photo excised from article published in The Commercial Appeal ECF No. 286-7 and -8 Excised photo of Cone ECF No. 286-7 Commercial Appeal article ECF No. 286-829 DEFENSE Letter dated 9/2/80 to Mrs. Valeree Cone from Mrs. Carl Schaetlee ECF No. 286-9 to -12 30 Collective: 2 while lab containers ECF No. 286-13 to-18 31 Tennessee License plate — 1-T2852 ECF No. 286-19 and -20 32 COURT'S EXHIBIT: Mid-South Magazine Section, The Commercial Appeal, 4/18/82; article, "Admissions of an Ex-Memphian," by Tim Paulson, excluded from jury ECF No. 286-21 to -27 Article, page 1 ECF No. 286-22 Article, page 2 ECF No. 286-23 Article, page 3 (with sentence referring to the Todd murders) ECF No. 286-24 Article, close-up of page 3 ECF No. 286-25 Article, "The Hill," from Sports Section D-1, The Commercial Appeal, 4/18/82, excluded from jury Article, page 1 ECF No. 286-26 Article, page 2 ECF No. 286-2733 Collective: 39 photos, crime scene, 121 N. Evergreen, color, 3x5, 8/13/80 ECF No. 287-1 to -40 1. The front view of the two-story white house at 121 North Evergreen; ECF No. 287-2 2. Three newspapers lying on the front porch at the front door of the house; ECF No. 287-3 3. A photo taken from the front door looking into the living room, in a western direction, showing the lawn chair and the ledger book and pad just west of the front door; ECF No. 287-4 4. The back view of the house showing the back door; ECF No. 287-5
5. Another view of the back door and the five steps leading up to the door; ECF No. 287-6 6. What appeared to be a bare footprint just left of the back door; ECF No. 287-7 7. Photograph taken from standing outside on the back steps, or in the backyard, looking into the back door of the house; ECF No. 287-8 8. The ledger book where someone was listing the items that they had purchased at the store, the date they purchased them, and the amount, and part of the lawn chair in the living room at the front door; ECF No. 287-9 9. The front door showing the porch and the living room; ECF No. 287-10 10. Front door, living room floor with a blood smear that had been wiped; ECF No. 287-11 11. The living room showing the couch where Shipley Todd was lying or had been sitting, the pillow, and the newspaper; ECF No. 287-12 12. The couch; ECF No. 287-13 13. The back of the couch; ECF No. 287-14 14. The living room taken from the north showing the direction south; ECF No. 287-15 15. The living room showing the male victim, the coffee table, and couch; ECF No. 287-16 16. Part of the male victim's feet and the coffee table; ECF No. 287-17 17. Photograph showing where the male victim was between the couch and the coffee table; ECF No. 287-18 18. Photograph taken from the hallway showing the entrance to the kitchen as you enter from the back; ECF No. 287-19 19. Photograph taken in the living room, in a western direction, showing the entrance from the kitchen to the living room; ECF No. 287-20 20. A portion of the kitchen, along with the female victim's body; ECF No. 287-21 21. Photograph taken from the living room showing the hall entrance into the kitchen where the victim was found; ECF No. 287-22 22. The small bathroom at the rear of the house; ECF No. 287-23 23. The sink showing the hair inside; ECF No. 287-24 24. Photograph showing the commode and the hair; ECF No. 287-25 25. The commode, hair on the floor and around the commode; ECF No. 287-26 26. A photograph taken from the hallway looking into the small bathroom, showing the sink and the towel that was on the floor underneath the sink; ECF No. 287-27 27. A photograph taken at the rear of the house as you enter the back door,
looking down the hallway, showing a cabinet which had doors open and the drawers pulled out; ECF No. 287-28 28. The bed in the back bedroom, downstairs on the south side of the house, showing a white purse with its contents; ECF No. 287-29 29. The back bedroom showing the bed, the purse, the newspaper, and the blue dress with the white slip hanging on the end of the bed; ECF No. 287-30 30. The back bedroom showing the bed, purse, and a small night table; ECF No. 287-31 31. The back bedroom showing the open chest of drawers; ECF No. 287-32 32. The back bedroom showing the Sunday newspaper, a white purse, a white lacy lady's garment with blood spots on it; ECF No. 287-33 33. The back bedroom showing the television and dresser; ECF No. 287-34 34. The back bedroom showing the night stand on the west side of the bed; ECF No. 287-35 35. The back bedroom showing the television, dresser, and cedarrobe with the doors hanging open; ECF No. 287-36 36. The blood spots on the ceiling in the living room above the mirror and the east wall; ECF No. 287-37 37. The east wall in the living room and the molding with blood spots; ECF No. 287-38 38. The front door taken from inside the house, showing the curtain with blood spots on it; ECF No. 287-39 39. View of bathroom, cupboard door open ECF No. 287-40 34 Collective: 2 pieces of paper, hand-written notations of meter readings, Memphis Light, Gas, and Water usage ECF No. 287-41 to -45 35 Green and white towel, soiled ECF No. 287-46 to -48 Green side of towel ECF No. 287-47 White side of towel ECF No. 287-4836 Broken screen door hook (in small envelope, 1x1) ECF No. 287-49 37 Norelco electric razor ECF No. 287-50 to -52 38 Collective: 42 white index cards containing latent prints taken at 121 N. Evergreen, 8/14/80 ECF No. 288-1 to -85 39 Collective: 4 photos, crime scene, 121 N. Evergreen, basement area, kitchen sink area, 8/14/80 ECF No. 289-1 to -4 Close-up of ammunition box ECF No. 289-1 Photo from basement with ammunition box ECF No. 289-2 Money found in ammunition box laid out on table ECF No. 289-3 Sink area with potatoes and knife ECF No. 289-440 Collective: plywood clipboard, ledger (related papers) ECF No. 289-5 to -13
View of all 3 items (clipboard, ledger, page from notebook ECF No. 289-6 Close-up of page from notebook ECF No. 289-7 Assorted papers ECF No. 289-8 Close-up of ledger contents ECF No. 289-9 Close-up of two pages in ledger ECF No. 289-10 Close-up of two pages in ledger ECF No. 289-11 Reverse view of three items in ECF No. 289-6 ECF No. 289-12 Close-up of reverse view of notebook page ECF No. 289-13 41 Collective: 2 knives; 1 "Camp King," 1 "Dole Bananas" ECF No. 289-14 and -15 42 End of leather belt ECF No. 289-16 and -17 43 Safety razor in plastic container ECF No. 289-18 and -19 44 Butcher knife (2 views), approx. 12-inches in length, 7-inch blade ECF No. 289-20 to -22 45 White lacy sweatguard, stained (2 views) ECF No. 289-23 to -25 46 White face cloth (2 views) ECF No. 290-1 to -3 47 Section of wood from outside kitchen door frame ECF No. 290-4 to -6 Unpainted side ECF No. 290-5 Painted side ECF No. 290-648 Vial containing hair removed from back bathroom, 121 N. Evergreen, 8/13/80 ECF No. 290-7 to -9 49 Vial containing hair removed from green and white towel, back bathroom, 8/13/80 ECF No. 290-10 to -13 50 Collective: 9 photos, auto and contents, at 242 N. Auburndale, 8/9/80 ECF No. 290-14 to -23 9 photos: 1. Cone's car, view from rear driver's side ECF No. 290-15 2. Items of clothing, holster ECF No. 290-16 3. Interior of car, driver's side ECF No. 290-17 4. Items found in car, money ECF No. 290-18 5. View of backseat of car, from outside, rear driver's side ECF No. 290-19 6. Items of clothing, floorboards ECF No. 290-20 7. Interior, passenger's side ECF No. 290-21 8. Items of clothing ECF No. 290-22 9. Rear of car, Arkansas license plate ECF No. 290-2351 Photo: garage rear of 242 N. Auburndale, NOT IN DOCKET, MISSING 8/9/80 52 Collective: 6 white index cards containing latent prints taken from auto at 242 N. Auburndale, 8/9/80 ECF No. 290-24 to -36 53 Collective: wallet and contents ECF No. 290-37to -39 Wallet open, face-down ECF No. 290-38 Wallet open, face-up ECF No. 290-3954 Passport ECF No. 290-40 to -42 Passport closed, front view ECF No. 290-40 Passport open, first page ECF No. 290-41 Passport open, emergency contact address ECF No. 290-4255 Tape bandage ECF No. 290-43 and -44 56 General Electric FM/AM Cassette-radio ECF No. 291-1 to -3 Front view ECF No. 291-2 Rear view ECF No. 292-357 Plastic bad containing assorted clothing ECF No. 291-4, MISSING
58 Bag of items: holster, 47 cassette tapes, 3 glasses cases, 1 pair glasses, 1 road atlas, 12 "D" batteries, 1 headset, alarm clock, assorted toilet articles ECF No. 291-5 to -7 Entire contents ECF No. 291-6 Close-up of Cone's Arkansas driver's license ECF No. 291-759 Assorted drug items, including two lists on yellow paper. Items taken from auto 8/9/80, 242 N. Auburndale ECF No. 291-8 to -11 Entire contents ECF No. 291-9 Close-up of list on yellow paper, page 1 ECF No. 291-10 Close-up of list on yellow paper, page 2 ECF No. 291-1160 Assorted clothing contained in suit bag, removed from trunk of car at 242 N. Auburndale ECF No. 291-12 to -16 Garment bag open, contents ECF No. 291-13 Close-up of Exhibit tag ECF No. 291-14 Top view of garment bag, closed ECF No. 291-15 Top view of garment bag, reverse ECF No. 291-1661 Purple bag containing change ECF No. 291-17 and -18 62 Collective: brown/gold bag containing assorted papers, 2 pairs of glasses, 21 cents ECF No. 291-19 to -26 Close-up of papers, list of drugs, amounts ECF No. 291-20 Close-up of papers, list of drugs, amounts ECF No. 291-21 Close-up of papers, sunglasses ECF No. 291-22 Close of envelope for title, sunglasses ECF No. 291-23 Close-up of Valeree Cone's Arkansas car registration certificate ECF No. 291-24 Close-up of Valeree Cone's property assessment from Arkansas County of Chicot Assessor ECF No. 291-25 Wide-view of all contents ECF No. 291-2663 Collective: 2 Polaroid photos, Broward County Jail, Pompano Beach, Florida, 8/18/80, color, 2x4 ECF No. 291-27 to -29 Full picture of Cone and Roby ECF No. 291-28 Close-up of Cone's cut finger ECF No. 291-2964 Collective: large envelope containing 9 small envelopes of hair samples of Defendant ECF No. 291-30 to -32 Wide view of all envelopes ECF No. 291-31 Reverse of each envelope ECF No. 291-3265 Collective: 9 cards of known prints of Defendant; complete set of known prints ECF No. 291-33, MISSING 66 Passport photo of Defendant, color, 1½ x 1½ ECF No. 291-34 and -35 Small photo ECF No. 291-34 Close-up of same ECF No. 291-3567 Illinois Bell Telephone Co. subscriber usage for Sue Cone, Area Code 312-337-0086, 3 sheets stapled together ECF No. 291-36 to -39 68 Question hair from bathroom, towel; 3 grey cardboard mailers, each containing 2 slides; total of 6 slides ECF No. 291-40 to -42 69 Known hair of Mr. Todd, Mrs. Todd, Defendant: 4 cardboard mailers, each containing 2 slides; total 8 slides ECF No. 291-43 to -45 70 Sketch of hair sample analysis procedure ECF No. 291-46, MISSING
71 Certified copies of Court records from State of Oklahoma: CRF 72-1431; CRF 72-1476; CRF 72-1477 ECF No. 291-47 COURT'S Collective: 3 photos of victims' ECF No. 291-48 EXHIBIT A bodies, excluded from jury, color, 3x5, 8/13/80; SEALED COURT'S MPD Supplementary Offense ECF No. 291-49 EXHIBIT B Report
