Derrick Quintero and William Eugene Hall, Jr. v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 24, 2007 Session

DERRICK QUINTERO and WILLIAM EUGENE HALL, JR.

v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Humphreys County

No. 8849; 8850 Robert E. Burch, Judge

No. M2005-02959-CCA-R3-PD - Filed July 7, 2008

The appellants, Derrick Quintero and William Eugene Hall, Jr., were each convicted on two counts

of murder during the perpetration of first degree burglary, three counts of grand larceny, one count

of petit larceny and three counts of first degree burglary. They both received the death penalty for

the murder of one of the victims, a life sentence for the other murder conviction, and an effective

eighty year sentence for the remaining convictions. The appellants were unsuccessful in their direct

appeals. See State v. Hall and Quintero, 976 S.W. 2d 121 (Tenn. 1998). Appellants filed individual

pro se post-conviction petitions and simultaneously joint petitions for writ of error coram nobis.

Appellants alleged various constitutional violations, including the ineffective assistance of counsel

and the existence of newly discovered evidence. Following a joint hearing on the petitions the trial

court denied relief. We affirm the judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID H. WELLES, and JERRY L. SMITH ,

JJ., joined.

Hershell D. Koger, Pulaski, Tennessee, and Kathleen G. Morris, Nashville, Tennessee (on appeal);

Shipp Weems, District Public Defender, Steve Stack, Assistant Public Defender, John E. Herbison

and Paul Buchanan, Nashville, Tennessee (at trial), for the appellant, Derrick Quintero.

Patrick T. McNally, Nashville, Tennessee (at trial and on appeal); Paul J. Bruno, Nashville,

Tennessee (on appeal); Jennifer Davis Roberts, Dickson, Tennessee (at trial); and N. Reese Bagwell,

Clarksville, Tennessee (at trial), for the appellant, William Eugene Hall, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark E. Davidson, Assistant Attorney

General; Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson and James W. Kirby,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Background

The appellants were part of a group of eight inmates who escaped from prison in Eddyville,

Kentucky on Thursday morning, June 16, 1988. Three of the escapees were captured near the prison

in Kentucky. Five of the escapees, William Eugene Hall, Jr., Derrick Quintero, James Blanton,

Joseph Montgomery and Ronnie Hudson, eventually made their way to a community in Stewart

County, Tennessee near Kentucky Lake. Several homes in the area were reported burglarized prior

to Monday, June 20, 1988, and the victims in this case were murdered in their home the night of

Monday, June 20. Montgomery and Hudson left the other three escapees and returned to Kentucky

on Sunday, June 19, 1988, and they spent the next few days with Hudson’s family until their arrest

on June 22, 1988. The appellants and Blanton fled Stewart County and were seen in Memphis on

Tuesday, June 21, 1988. Hall was eventually captured in Texas, and Quintero and Blanton were

subsequently apprehended in Mexico.

Quintero and Hall were each convicted on two counts of murder during the perpetration of

first degree burglary, three counts of grand larceny, one count of petit larceny, and three counts of

first degree burglary. They both received the death penalty for the murder of one of the victims, a

life sentence for the other murder conviction, and an effective eighty year sentence for the remaining

convictions. The trial lasted just over six weeks. The appellants were unsuccessful in their direct

appeals. See State v. Hall and Quintero, 976 S.W.2d 121 (Tenn. 1998). Though Blanton was

indicted along with the appellants, he successfully moved to sever his case. Blanton also received

the death penalty for one of his two murder convictions. State v. Blanton, 975 S.W.2d 269 (Tenn.

1998). Blanton died in prison in 1999.

The appellants filed individual pro se post-conviction petitions in May 1999. The trial court

appointed counsel for each appellant, and they subsequently filed amended petitions on behalf of the

appellants in August 2001. Following a joint hearing on the petitions in March and April 2003, the

trial court denied relief. In October 2004, the court entered written orders for each appellant

detailing the testimony heard at the hearing and addressing each of the claims presented in the

written petitions.

The convicting evidence was wholly circumstantial. The summary of facts below is rather

lengthy, but necessary in light of the claims raised by the appellants. Although the appellants

admitted during the post-conviction hearing that they participated in several of the burglaries, they

both denied murdering the victims, breaking into their home or stealing their car. They claimed they

were on their way to Memphis the morning the murders occurred. The appellants proffered the

deposition of Quintero’s father and their own testimony in support of their alibi.

Furthermore, the appellants both filed a joint petition for a writ of error coram nobis. The

basis of the petition was testimony of two fellow death row inmates who stated that Blanton

confessed to them that he acted alone, or with another individual, breaking into the victims’ home

and killing them. According to these inmates, Blanton told them he did not come forward earlier

because he did not want to jeopardize his own case. Blanton died in prison in 1999. The error

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coram nobis petition was not filed until March 31, 2003, the first day of the hearing on the post-

conviction petitions. According to the petition, counsel became aware of these inmates’ statements

in the “summer of 2002.” Although Blanton died in 1999, it is unclear from the record when the two

inmates revealed their information to the appellants. The trial court suspended the statute of

limitations and considered the merits of the petition. The court, however, denied relief on the

petition.

Facts

The following is the supreme court’s summary of the trial testimony:

The proof introduced by the State during the guilt phase of the trial demonstrated that

Myrtle and Buford Vester were murdered in their home in the Leatherwood

community of Stewart County, which is situated on Kentucky Lake and in close

proximity to the Tennessee-Kentucky border. The Vesters were murdered sometime

after their son left their home at 6:00 p.m. on Sunday, June 19, 1988 and sometime

before their bodies were discovered by their neighbor around 10:00 a.m. on

Wednesday, June 22, 1988.

Along with six other men, the defendants in this appeal, Derrick Quintero and

William Hall, escaped from the Kentucky State Penitentiary at Eddyville during the

early morning hours of June 16, 1988. Three of the escapees [Bobby Sherman, Leo

Sperling, and Floyd Cook] were apprehended in the vicinity of the prison on or

before June 18, 1988. However, the other five escapees, including Quintero, Hall,

James Blanton, Joseph Montgomery, and Ronnie Hudson left the area in a 1966

Chevrolet pick-up truck which they stole from Curtis Rogers who lived about one-

half of a mile from the prison facility. [The truck was located seventeen months after

the escape in a wooded area of Stewart County, Tennessee. It had been completely

covered with branches.]

The Stewart County Sheriff's department was notified at 2:30 a.m. on June 16 that

inmates had escaped from the penitentiary at Eddyville. After news of the escape had

been broadcast to the public, the Sheriff's department received a telephone call from

Zachery Pallay, a resident of the Leatherwood community, warning that Quintero was

familiar with the area and would probably seek refuge there. The Sheriff's

department's [sic] also received several reports of suspicious individuals in the

Leatherwood area including a report of three men attempting to flag down a car.

However, when a rash of burglaries broke out in the Leatherwood community, the

Sheriff's department became convinced that the escapees were in the area. The

burglarized residences in Stewart County were owned by Jim McMinn, Neal Foster,

Essie Settles, Alfred Cherry, Thomas Harris, and John and Virginia Crawford.

Though it is not possible to determine from the record the precise order in which the

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burglaries occurred, the proof demonstrates that five of the six burglaries occurred

before 1:00 p.m. on Sunday, June 19, 1988.

The first burglary was reported and occurred on June 18, 1988. That day, Jim

McMinn of Clarksville, Tennessee, arrived at his cabin in the Leatherwood area at

approximately noon. He left the cabin to go fishing in his boat at around 1:00 p.m.

Upon returning to the cabin at 2:30 or 3:00 p.m., McMinn noticed a box of shotgun

shells lying on the floor and discovered that his loaded .22 caliber pistol was missing

from the bedroom. The telephone in his cabin had been removed from the wall, and

the outside portion of the phone line also had been severed. McMinn went to his

truck and discovered that the windows had been rolled up and the ignition destroyed

with his ax. The telephone from McMinn's cabin was in the bed of the truck.

Following the report of the McMinn burglary on June 18, the Sheriff's Department

initiated an intensive search of the area, utilizing helicopters, four-wheel drive

vehicles, and tracking dogs. At one point law enforcement officers chased some

individuals on foot through the woods, but they were not able to overtake the persons

suspected to be the escapees.

At some point, perhaps during that chase, Hudson and Montgomery became

separated from the defendants and Blanton. Hudson and Montgomery left the

Leatherwood community and drove to Lebanon, Kentucky in a 1982 White Ford

Fairmont they stole from Essie Settles, a resident of the Standing Rock Community,

which is approximately six highway miles from the Leatherwood community.

Montgomery's fingerprint was found on Settles' garage door. Hudson's fingerprint

was found inside the car when it was later recovered. Settles had seen the car in her

garage around 10:00 a.m. on Saturday morning and discovered that it was missing

at approximately 1:30 p.m. on Sunday afternoon. The proof demonstrated that the car

was stolen sometime Saturday night or before daylight on Sunday morning. Burned

matches were found inside the garage indicating that it had been dark when the theft

occurred. In addition, when she watered her flowers around 8:00 a.m. on Sunday

morning, Settles noticed that someone had removed the hose from the outside faucet

during the night. Settles stated that the hose had been connected when she had used

it on Saturday evening around 6:00 p.m.

Hudson and Montgomery arrived at Hudson's brother's apartment in Lebanon,

Kentucky on Sunday, June 19, at approximately 1:00 p.m. They were driving a white

car with Tennessee license plates, which witnesses identified at trial as the vehicle

which had been stolen from Settles. Hudson's brother and a friend accompanied the

two escapees to a secluded area on the river where Hudson and Montgomery hid the

stolen car among the weeds. Around 6:00 or 6:30 p.m., Hudson's brother left the two

escapees in the company of Hudson's mother and sister. The next day, Hudson's

sister, her two children, and Martha Grover picked up the two escapees and

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transported them to Grover's apartment where they stayed until early evening on

Tuesday, June 21. The following day, Wednesday, June 22, Kentucky authorities

apprehended both Hudson and Montgomery near the location where Settles' car had

been hidden. Shots were exchanged prior to the convicts' apprehension. Hudson and

Montgomery had in their possession McMinn's .22 caliber pistol and a .22 caliber

pistol which had been stolen from another resident of the Leatherwood community,

Neal Foster. Two live rounds were recovered from Foster's pistol, and four spent

shells were recovered in the area. While this proof demonstrated that Hudson and

Montgomery were some two hundred miles away in Lebanon, Kentucky when the

Vesters were murdered in Stewart County, Tennessee, it also showed that the

McMinn and Foster burglaries occurred before 1:00 p.m. on June 19.

The Cherry and Harris burglaries were discovered around 3:00 or 4:00 p.m. on June

19, 1988 by Alfred Cherry. Cherry's trailer was located approximately one-half of a

mile from the murder victims' residence. The inside of the trailer was in disarray. A

bed was unmade and wet towels were in the bathroom. The refrigerator light switch

had been taped down to prohibit the light from operating when the refrigerator door

was opened. The hot water tank had been set on high.

Missing from the trailer were two bedspreads, a green thermal blanket, a sleeping

bag, a portable radio, approximately fifteen cassette tapes, a rechargeable flashlight,

a small handsaw, six knives, coffee mugs, various canned goods, a gallon of

homemade wine, two bottles of bourbon, a six-pack of beer, a toothbrush, underwear,

and two paperweights bearing the Cumberland Electric logo. [These paperweights

were found seventeen months later in the bed of the 1966 Chevrolet truck which the

escapees had stolen near Eddyville and driven to the Leatherwood community.]

Cherry did not have a telephone in his trailer. Upon discovering the burglary, he went

next door to call the police on the telephone in the trailer owned by his brother-in-

law, Thomas Harris. Cherry discovered that Harris' trailer had also been burglarized.

The trailer had been ransacked. The refrigerator light had been removed. The sink

was full of dirty dishes, and food was in a skillet on the stove. Wet towels and sheets

were strewn about and cigarette burns were all over the floors. Stolen from the trailer

were all the canned food items, two quilts, silverware, butcher knives, towels, toilet

articles, and a fishing tackle.

When Harris later received his telephone bill, he realized that several unauthorized

long distance telephone calls had been placed from his trailer. Three of the

unauthorized calls had been placed to a number in Springtown, Texas. These calls

occurred on Sunday, June 19, at 3:51 a.m., 8:55 a.m. and 9:19 a.m. Two additional

unauthorized calls were placed to a telephone number in Hopewell, Pennsylvania, at

4:00 a.m. and 9:19 a.m. The telephone number called in Springtown, Texas, was

listed to Bryan Quintero, who is a brother of Derrick Quintero. The telephone number

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called in Hopewell, Pennsylvania, was listed to a Barbara Vasser, William Hall's girlfriend.

At trial, Vasser testified that Hall told her during their first telephone conversation

after the escape that his parole had been denied. Hall would not reveal to Vasser his

and Quintero's location, but told Vasser that there were helicopters in the area

searching for the escapees and that he and Quintero had been separated from Hudson

and Montgomery.

Two knives taken from the Cherry trailer were found at Neal Foster's residence

indicating that it was burglarized sometime after the Cherry and Harris trailers.

Again, however, the burglary occurred sometime before 1:00 p.m on June 19,

because Montgomery and Hudson had in their possession a gun which had been

stolen from the Foster residence when they were apprehended.

However, Foster did not discover the burglary until Tuesday, June 21. The residence

had been ransacked. Food was on a kitchen counter, deer steaks were in the

microwave, and his binoculars were sitting on a kitchen counter. A green ammunition

box, a plastic bag full of old coins, a flashlight, and the holster for his .22 caliber RG

pistol were on the floor of the living room. The hallway floor was littered with a Diet

Pepsi can, a tin can of old coins, a notebook that once had old coins in it, some socks,

a laundry basket with clothes that did not belong to him, and a pair of white tennis

shoes that did not belong to him. Towels were strewn around the house. He found in

his bathroom a pocket knife, towels, a pair of socks, a .22 caliber shell box, and a 20

gauge shotgun shell. The beds were unmade and had items spread on top of them.

The master bedroom dresser drawers were open, and items were scattered all around

the bedroom, including two walkie-talkies, a hacksaw, and a 12 gauge shotgun barrel.

In the front bedroom, he found several hats, matchbooks, a jar of marshmallow

cream, a box of graham crackers, and a small drinking glass.

In a walk-in closet in the residence Foster had kept a .22 caliber pistol, a Glenfield

.22 caliber rifle, a Marlin .30-30 caliber lever action rifle, a 20 gauge shotgun, a

single shot shotgun, and a Remington Model 1100, 12 gauge shotgun. Following the

burglary, he found the 12 gauge shotgun lying on his bed. Someone had attempted

to saw off the barrel and had rendered the gun inoperable. The 20 gauge shotgun was

missing from his house, but a portion of the gun's barrel had been sawed off and left

in Foster's bedroom. Also missing after the burglary were his .30-30 lever action rifle

and ammunition for various weapons, including .30-30 accelerator rifle bullets, .30-

30 caliber rifle shells, 20 gauge shotgun shells, and 12 gauge shotgun shells. In

addition to the ammunition, several coins which Foster had collected, including silver

dollars, were taken in the burglary.

The authorities found several latent prints at the Foster residence, and identified some

of them as belonging to the escapees. A latent left thumb print matching that of

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Quintero was found on a full box of Federal 12 gauge shotgun shells. A latent right

ring fingerprint matching that of Quintero was found on another Federal 12 gauge

shotgun shell box. A right middle finger and a right index fingerprint matching

Blanton's print was found on a Federal field load 12 gauge shotgun shell box. A right

palm print matching that of Quintero was lifted from one of the gun barrels. A latent

right ring fingerprint matching that of Hall was lifted from a Diet Pepsi can.

Though the Crawford burglary was not discovered until after the Vesters' bodies had

been discovered, a glove taken from the Crawford residence was found at the home

of the murder victims, indicating that the burglary actually occurred before the

murder. The Crawford residence was less than a quarter of a mile from the Vesters'

home. John and Virginia Crawford had left their trailer, clean and orderly, around

2:00 p.m. on Sunday, June, 19. Following the burglary, they found their kitchen

ransacked. Canned foods, crackers, and candy bars from the cabinet and refrigerator

had been eaten. Prints were lifted from several items in the trailer. A latent left thumb

print matching that of Hall was found on the bottom of a can of ham. A latent right

index fingerprint left by Blanton was lifted from a Butterfinger candy wrapper found

inside the refrigerator. The Crawfords identified two gloves found at the trailer, one

white jersey and one brown jersey, as belonging to Mrs. Crawford. A patch on one

of the gloves had been sewn on by Mrs. Crawford. Mr. Crawford testified that a

flashlight had also been taken from the trailer. One of the gloves found at the

Crawfords' trailer matched a glove found outside the Vesters' front bedroom window.

A fiber analysis of the two gloves indicated that they were likely originally sold

together as a pair.

With respect to the timing of the murder, the proof showed that late on Monday

evening, June 20, John Corlew and Arthur Jenkins arrived at the Leatherwood boat

dock, launched their boat, and night fished in the Leatherwood Bay. Between 11:00

p.m. and 12:00 a.m. they heard five gunshots emanating from the direction of the

Vesters' residence. Corlew testified that he first heard two gunshots that were fairly

clear, and after a pause, he heard two additional shots, another pause, and one final

shot. Corlew testified that the first two shots and the second two shots sounded as if

they were from different weapons. Mr. Jenkins testified that the two initial shots

sounded like repercussions from a pistol. Both Jenkins and Corlew heard a total of

five gunshots.

The victims, Buford and Myrtle Vester, were last seen alive around 6:00 p.m. on

Sunday June 19 by their son Wayne. He, along with his twelve-year-old son, had

arrived at his parents' home for a weekend visit on the evening of Friday, June 17. He

had picked up groceries for his parents including Pepsi colas, lunch meat, bread, and

milk. Wayne Vester left his parents home on Sunday, June 19, at approximately 6:00

p.m. At that time, the Vesters were alive and well. Wayne attempted, unsuccessfully,

to reach his parents by telephone once on Monday, June 20, and twice on Tuesday,

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June 21. Concerned, Wayne called their neighbor, Howard Allor, who lived

approximately one quarter of a mile from the Vesters, but Allor had not seen them

since the preceding Friday morning. When Wayne was still unable to reach his

parents on June 22, he again called Allor and asked him to check on them. Allor

drove to the Vesters' residence and discovered their dead bodies. He attempted to

telephone the Sheriff from their residence, but the telephone was not functioning, so

he returned home and reported the murders to the authorities.

David Hicks, Sheriff of Stewart County, was notified of the Vester murders at

approximately 1:00 or 1:30 p.m. on Wednesday, June 22. The Tennessee Bureau of

Investigation (“T.B.I.”) conducted the primary investigation of the crime scene. The

only entrance to the Vester residence was a screen door located at the side of the

house opposite to the victims' bedrooms. The screen door had not been damaged.

However, the front window was open, and the screen from the front window was

lying on the ground near Myrtle Vester's bedroom window which was located at the

back of the house. Underneath the front window was a concrete block which

apparently had been taken from the front of a shed located at the back of the house.

A cloth glove which matched a glove found at the Crawfords' residence was found

on the ground beside the concrete block. An unopened Pepsi cola can lay next to the

walkway to the screen door of the house. The packages of Pepsi cola that Wayne

Vester had brought his parents were missing from the porch. The Vesters' maroon

1985 Pontiac Bonneville also was missing. The wires to the telephone connection

box outside the Vesters' residence had been damaged and the line was dead. A live

20 gauge Federal shotgun shell with [a] number 6 bird shot was found lying near the

electrical box. A spent 20 gauge number 4 shot Federal shotgun shell casing was

found near the shed approximately 18 feet from Mr. Vester's back bedroom window.

The windows to the victims' bedrooms were located along the back of the house.

Buford Vester's bedroom window frame was visibly bent. The screen covering the

window had a hole in it which indicated that Mr. Vester was shot at least once from

outside the house. Some [of] the glass louvers were broken, and shards of glass were

found lying on the bed. Mr. Vester's body was found on the floor next to his bed. The

covers were drawn back, and blood was on both the pillow and the bed. Number 4

and 5 bird shot pellets were retrieved from Mr. Vester's room. Two shot shell filler

wads were found beside Mr. Vester's body, and a 20 gauge plastic shot wad was

recovered from beside his head. A plastic shot sleeve, one shot shell, a plastic shot

wad, and several shot pellets, all either number 4 or 5 bird shot, were recovered from

Mr. Vester's body.

The victims were in separate bedrooms joined by a bathroom. Myrtle Vester's body

was found lying in a pool of dried blood on the floor of her bedroom next to the

bathroom. Mrs. Vester had been shot three times, once with a 20 gauge shotgun,

once with a high-powered rifle, and once again with either a shotgun or a high-

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powered rifle. She also had been stabbed thirteen times. A copper-jacketed bullet was

recovered from her body. Blood was found on Mrs. Vester's bed, and a considerable

amount of blood was found on the bathroom floor. Blood was splattered on both the

bathtub and the commode, and the bottoms of Mrs. Vester's feet also were covered

in blood. The screen covering Mrs. Vester's bedroom window also had a hole in it,

indicating that at least one shot had been fired from outside. The open and unbroken

condition of the glass louvers indicated that the high-powered rifle or shotgun had

been near the window when it was fired. Shot was sprayed all over the house,

especially the kitchen. All of the shot pellets found in the house were either number

4 or 5.

On the victims' sofa authorities found a portion of The Tennessean, dated Monday,

June 20, 1988. The local mail carrier testified that the victims did not receive The

Tennessean by mail. A live 20 gauge shotgun shell with number 7.5 shot was found

lying on the floor in the front bedroom next to a ransacked jewelry box.

Dr. Charles Harlan, the medical examiner, performed an autopsy on each victim and

testified that the Vesters had died within two hours of consuming dinner. He stated

that the victims had been shot a total of five times, and a minimum of three different

weapons had been used to murder them.

Mrs. Vester had sustained three gunshot wounds. Gunshot wound A, located at the

right portion of Mrs. Vester's chest just below her collarbone, measured

approximately a quarter of an inch and was basically round in shape. This wound

resulted when a copper jacketed bullet entered Mrs. Vester's body and lodged in her

left arm. Wound B resulted from a shotgun blast and was located in the upper arm.

This wound measured 3.4 inches by 1.8 inches, was jagged, with an irregular edge,

and had multiple associated tangential abrasions. Wound C resulted from either a

high-velocity rifle or shotgun. This gunshot blast had severed the two bones in Mrs.

Vester's right forearm, leaving her hand and wrist attached to her body by a piece of

tissue, consisting of only skin, muscle, and fat. Dr. Harlan could not determine the

order in which these three gunshot wounds were inflicted.

Mrs. Vester also had sustained thirteen stab wounds, one to the middle of her back

and twelve to her head, neck, and shoulder region. A majority of the stab wounds

were inflicted to the left side of her head and neck. Dr. Harlan surmised that the

puncture wounds were made by a squared object with a sharp edge, such as a kitchen

or hunting knife. Two of the stab wounds severed her right and left common carotid

arteries. The right carotid artery was 90 percent severed, and the left was 10 percent

severed. Dr. Harlan testified that either the injuries to her carotid arteries or the

gunshot injury to her right forearm would have been fatal. Dr. Harlan determined that

Mrs. Vester could have survived the brutal attack for up to 15 minutes.

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Mr. Vester had sustained two gunshot wounds. Shotgun wound A was located at the

head and neck juncture. The total dispersal pattern of shotgun pellets was 13 inches.

Wound A caused significant injury to his left lung, aorta, and pulmonary artery.

Shotgun wound B was to Mr. Vester's right breast and caused trauma to his right lung

and to his liver. Dr. Harlan recovered shotgun pellets and a shot column from Mr.

Vester's chest and abdomen. Dr. Harlan opined that Mr. Vester could have survived

from four to twelve minutes after sustaining the gunshot injuries.

On June 21, 1988, around 8 a.m., employees of the Memphis Funeral Home observed

three men, in a maroon Pontiac which was later identified as the victims' car, enter

the funeral home parking lot and park the car approximately 250 feet from the

building. Two employees of the funeral home testified that one man got out of the

front seat, took his tank top off, and put on three additional shirts. The two other men

also exited the car. None of the witnesses could make a positive identification of the

three men. The witnesses testified that all three men were white and about the same

height, but two of the men were approximately 180 pounds and had darker hair. They

stated that all three men had facial hair. One funeral home employee described the

three men as having beards and stated that one had long hair.

The three men remained in the parking lot for approximately five to eight minutes.

Then, after one of them took something out of the trunk, the three men walked

towards a hospital across the street from the funeral home. One of the men turned,

walked back to the car, and appeared to have placed an item back into the car. He

then joined the two other men, and then all three walked away. The funeral home

employees assumed that the three men were working on a construction project at the

hospital. However, when the car had not been removed by Thursday, the funeral

home employees contacted the Memphis Police Department.

On the morning of Thursday, June 23, the Memphis Police Crime Scene Squad

responded to the call from the Memphis Funeral Home. The police found a 1985

maroon Pontiac Bonneville in the funeral home's parking lot. The vehicle matched

the description of the victims' vehicle. The keys were in the car's ignition. The

officers found a sawed-off 20 gauge shotgun containing one live round under the

floor mat behind the driver's seat which was later identified as the weapon stolen

from the Foster residence, and as the weapon from which a spent shell found outside

the Vesters' residence had been fired. Foster was able to identify the weapon by its

serial number; however, the gun also had Foster's full name carved into it. The police

also discovered under a floor mat a .30-30 caliber cartridge which matched

ammunition that had been taken from the Foster residence. From a crumpled

Budweiser beer can which also was found under the back seat police were able to lift

three latent prints belonging to Blanton. No other prints were found in the car. The

officer noted that the extremely hot temperatures in Memphis at the time the car was

found made it difficult to lift intact prints. Other items retrieved from the vehicle

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included a Ray-O-Vac flashlight, similar to one taken from the Crawford residence,

electrical tape, thirteen 20 gauge shotgun shells, three 12-ounce Pepsi colas, one 12-

pack of Pepsi colas, a portable electric air compressor, a Black & Decker car vacuum,

and a brown umbrella.

Curtis Jones, who was a security guard at the Memphis Greyhound bus station,

testified that he worked Tuesdays and Wednesdays at the bus station in June of 1988.

The bus station, located in downtown Memphis was approximately one mile from the

Memphis Funeral Home. His job was to prevent loitering at the bus station. Mr.

Jones sat in a booth and observed people who came inside to determine whether they

purchased tickets. Periodically, he would walk around and ask people whether they

had tickets or if they were waiting for someone to arrive.

Mr. Jones recalled three men entering the bus station either Tuesday, June 21, or

Wednesday, June 22, between 11 a.m. and 1 p.m. Two of the men sat down and

watched television. One of the two seated men spoke to a man seated nearby. The

third man, who had darker skin and appeared Hispanic, used a telephone. Mr. Jones

approached the two seated men and asked them whether they had tickets. A man,

whom he identified as Blanton, told him that they would leave as soon as their friend

finished using the telephone. The three men remained in the station five to ten

minutes. Later that same day, the Memphis police stopped by the bus station with a

photographic line-up of the eight escapees. Jones responded that Blanton and Hall

had previously been at the station. Later in the week, Jones spoke with T.B.I. Agent

Stout. Jones identified Blanton and Hall from a photographic line-up and made an

in-court identification of Hall as one of the men at the bus station.

The Blue Movies West adult bookstore and entertainment center was located across

the street from the bus station. Shirley Denise Morrow testified that she worked as

a cashier in the bookstore in June of 1988. On Tuesday, June 21, the day before her

birthday, three men entered the bookstore around 9:00 or 10:00 a.m. Two of the men

were white, and one appeared Mexican. The men traded a few silver dollars and half

dollars for tokens. Morrow also purchased some of the silver dollars and half dollars

for herself.

The men went to the back of the establishment to watch movies. Darlene Christof,

a dancer at the establishment, testified that three “scruffy” men entered her booth on

June 21. Two of the men were white, and the other appeared either Hispanic or

Mexican. Ms. Christof informed the men that only one was allowed to remain in the

booth. Two of the men left. From a photographic line-up, she identified the man who

remained in her booth as Quintero. Quintero later gave her several silver dollars and

tried to sell her a class ring and a man's wedding band.

The men then returned to the front of the establishment approximately fifteen to

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twenty minutes later. They attempted to sell Morrow what appeared to be a class ring

and a wedding band. Morrow declined and suggested they try a pawn shop. One of

the men indicated that they did not have any identification and offered Morrow fifty

dollars if she would allow them to stay in the movie house until their transportation

arrived. Morrow declined their offer. Christof then came out from the back of the

establishment and pretended to use the telephone. When Christof commented that the

three men resembled the escapees from the Kentucky prison, they left. Morrow then

contacted the police.

When shown a pre-trial photographic array of the eight escapees, Morrow identified

Blanton, Quintero, and Hall as the three men who had visited the bookstore. Morrow

turned over to the authorities the six silver dollars she had purchased from the men,

and later, Foster identified the coins as those stolen from his residence. Morrow also

made an in-court identification of both Quintero and Hall.

Lt. Thomas Pryor, an employee at the Eddyville penitentiary, testified that Quintero

had long hair, a moustache, long side burns and a goatee prior to the escape. Lt. Pryor

stated that he had never seen Hall with a beard.

Hall was eventually captured in El Paso, Texas. Both Blanton and Quintero were

captured in Mexico near El Paso. Barbara Vasser, Hall's girlfriend at the time,

testified that her mother called the Pennsylvania State Police after Hall called her for

a third time following the escape. Afraid for Hall's safety, Vasser notified the

authorities that she had agreed to wire money to him at the Western Union on North

Stanton Street in El Paso, Texas. Hall was apprehended by agents of the Federal

Bureau of Investigation (“F.B.I.”) when he entered the Western Union in El Paso at

approximately 2:20 p.m. on July 6, 1988.

On July 10, 1988, Quintero and Blanton were apprehended by Mexican officials at

the Santa Fe Hotel in Juarez, located just across the border from El Paso, Texas, and

transported across the international bridge. F.B.I. agents took custody of both

Quintero and Blanton from Mexican officials at a border checkpoint. Found in

Quintero's possession when he was taken into custody was an old wallet bearing an

imprint of Neal Foster's driver's license.

Based upon the proof summarized above, the jury convicted both Hall and Quintero

of two counts of murder during the perpetration of first degree burglary, three counts

of grand larceny, one count of petit larceny and three counts of first degree burglary.

During the sentencing phase, the State introduced proof that both Quintero and Hall

had previous convictions for crimes involving the use or threat of violence. The State

showed that Quintero had been previously convicted of two charges of escape in the

first degree and one charge of first degree robbery. The State also presented proof

-12-

that Hall had previous convictions for two separate assaults, wanton endangerment

in the first degree, and aiding and abetting in threatening the life of the President and

Vice President of the United States of America.

Finally, the State introduced additional photographs and testimony concerning Mrs.

Vester's body. Mrs. Vester was found lying in her bedroom just outside the bathroom.

The State introduced photographs depicting the amount of blood on the bathroom

floor and depicting the blood on the bottoms of Mrs. Vester's feet. The State also

introduced a photograph of the front of Mrs. Vester's body to demonstrate to the jury

the severity of her injuries and the brutality of the attack.

In mitigation, Quintero presented the testimony of his uncle and aunt, Paul and Josey

Quintero, who said that Quintero's parents drank constantly. Quintero's father would

stay away from home for long periods of time, and his mother had extramarital

affairs. Quintero was hungry for love and affection when he visited his uncle and

aunt's home. Paul Quintero testified that Quintero was always eager to seek his

approval and never gave him any trouble. Quintero's parents did not discipline their

children unless they were angry or drunk, at which time they would beat the children.

Testimony also indicated that Quintero never had clothes which properly fit him, and

as a result, he was ridiculed by the other children at school.

Paul and Josey Quintero testified that they had attempted to remain in contact with

Quintero since learning of the criminal charges. They related that Quintero had

obtained his GED in prison and was also enrolled in refrigeration and air

conditioning classes. They believed that Quintero had improved himself and would

make something productive of his life.

Quintero's cousin, Angela Alva, testified that she and Quintero were at one time very

close. She also related how Quintero's parents had abused alcohol, and testified that

Quintero had kept company with his older brother, Roderick, who was a bad

influence and not a good role model. According to Alva, Quintero was a follower,

and Roderick was aggressive.

A video deposition was shown of Helen Mimms Johnson, Quintero's first grade

teacher. Johnson testified that Quintero was mischievous but never mean. He was

held back a year and had trouble being attentive in class. Quintero was never very

clean and always seemed exhausted when he came to school. Johnson never met

Quintero's parents because they never attended any parent-teacher meetings.

Angela Holland and her 15-year-old son, Roderick Kent Quintero II, testified.

Holland had been married to Quintero's brother for approximately three years.

Holland and her son had maintained contact with Quintero and said that he had been

influential in helping his nephew stay out of trouble.

-13-

In mitigation, William Hall presented the testimony of his older brother, Robert Hall,

a prison minister. Robert said that defendant Hall was born in Paducah, Kentucky.

Their parents divorced when defendant Hall was two years old. Their father worked

on a barge and was gone for extended periods of time. Their mother died of throat

cancer when defendant Hall was four, and at that point, Hall went to live with his

father and stepmother. Hall's stepmother was at one time addicted to codeine.

According to Robert, the Hall children were not disciplined nor taught right from

wrong but were sometimes beaten. Defendant Hall began getting into trouble in grade

school. He began drinking alcohol in his pre-teens, and by his early twenties, he had

begun abusing drugs. Robert testified that William Hall was a follower, not a leader.

For a time following his parole in 1982, defendant Hall had lived with Robert and his

wife Ester in Pennsylvania. He worked with Robert at a tire shop and attended church

with Robert and Ester. Robert testified that Hall had turned to God and changed his

life. Hall lived with Robert and Ester for eight months. Hall, however, later moved

into a trailer near his place of employment and began drinking. Eventually, he

returned to Kentucky. The last time Robert and Ester had seen Hall was at his

stepmother's funeral in 1987. They speak with him weekly by telephone, however.

Barbara Vasser also testified. She had met Hall when he had lived with his brother

in Pennsylvania. Vasser said that Hall's life had changed after he accepted Christ. She

and Hall were engaged but never set a date because Vasser was only seventeen years

old at the time. Vasser testified that she and Hall were friends off and on between

1982 and 1988. Vasser said she had assisted the authorities because she had been

afraid for Hall's safety. Vasser had not remained in contact with Hall after his apprehension.

Dr. Kenneth Anchor, an associate professor of psychology at Vanderbilt and a

clinical psychologist, testified that he prepared a psychological evaluation of Hall in

1991. He testified as to the background information conveyed by Hall during the

interview. Hall grew up in Paducah, and his formal education ended after the ninth

grade. He later earned his GED while incarcerated. Hall began using drugs and

alcohol at age eleven and was addicted to Valium by age fourteen. He was placed in

juvenile detention several times and was sent to a youth development center. Hall

worked at different jobs while a young adult, but he had mostly been in and out of

prison since age seventeen. Hall informed Dr. Anchor that he had experienced two

head injuries. He fell off a porch as a baby and was struck in the head with a baseball

bat when he was fourteen.

Dr. Anchor testified that Hall was cooperative and responsive during the interview.

Hall did not offer any excuses or attempt to blame others. There was no indication

of malingering. Moreover, Hall was enthusiastic about his plans to pursue college

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courses in computers and data processing while incarcerated.

Hall scored a 99 on his I.Q. test which placed him in the 48th percentile. Dr. Anchor

testified that although Hall has a reasonable amount of intelligence, he has some

difficulty utilizing it. Hall experiences cognitive interference which is frequently seen

in people who have habitually abused drugs and alcohol. Dr. Anchor found Hall's

judgment, reasoning, and problem-solving skills to be “unstable.” According to Dr.

Anchor, that finding is consistent with a history composed of head injuries and

substance or polysubstance abuse.

Dr. Anchor concluded that Hall is seriously maladjusted and suffers from organic

personality syndrome. Dr. Anchor stated that persons with test profiles similar to

Hall's usually have a strong sense of worthlessness and inferiority. Hall feels a deep

sense of shame, embarrassment, and humiliation for many of his past actions. Dr.

Anchor opined that Hall's psychological maladjustment can be treated effectively

with counseling or psychotherapy. At the time of trial, Dr. Anchor stated that Hall did

not present a danger either to himself or to others in a prison setting. Dr. Anchor

opined that Hall's prognosis was good assuming he abstained from future substance

abuse. Dr. Anchor concluded that the prospects for social, educational, and

vocational functioning were satisfactory.

In rebuttal, the State presented the testimony of Dr. Samuel Craddock, a clinical

psychologist at Middle Tennessee Mental Heath Institute. Dr. Craddock interviewed

Hall and disagreed with Dr. Anchor as to the degree of danger Hall poses. Dr.

Craddock further testified that he had not seen any data to support a finding that Hall

suffered from an organic personality syndrome.

Based upon this proof, the jury found five aggravating circumstances which were not

outweighed by the mitigating circumstances and, therefore, sentenced the defendants

to death for the murder of Myrtle Vester and to life imprisonment for the murder of

Buford Vester.

Hall, 976 S.W.2d at 124-32.

Post-Conviction Evidence

Ronnie Cauthern, an inmate on death row in Tennessee, knew James Blanton prior to his

death in 1999. Cauthern testified to statements Blanton made to him about the crimes in this case.

According to Cauthern, Blanton told him that Hall and Quintero were not present when Blanton

killed the victims. Blanton said “if anything were to happen regarding the execution of [Hall and

Quintero], he would step up and stop it.” However, he also said he would not say anything “at that

time, because it would jeopardize his own case.” Blanton had previously been convicted of murder,

and according to Cauthern, he bragged about the killings.

-15-

Terry Lynn King, another death row inmate, also testified that Blanton told him Hall and

Quintero were not present when the murders took place. Blanton “was somewhat troubled of [sic]

whether he was going to testify at [Hall and Quintero’s] post-conviction hearing,” but when King

informed Blanton that would be his only opportunity to help Hall and Quintero he decided he would

testify on their behalf. According to King, Blanton “felt really bad” that Hall and Quintero were on

death row for something he did.

King described the crimes as told to him by Blanton. Blanton, Montgomery and Hudson

thought they had been spotted after breaking into a trailer, so they went to tell Hall and Quintero

what happened. Hall and Quintero had set up a separate camp from the other three escapees.

Quintero told Blanton they were going to meet his friend, Zach, later that night. After Blanton and

the other two thought they had been seen breaking into a trailer, all five of the escapees broke into

another home looking for guns and more supplies. Blanton told King that Quintero sawed off a

shotgun, but that they all fled the house when they thought they saw a police officer. Hall did not

have a weapon in his hands when they fled, but Quintero had a rifle. Quintero and Hall ran off in

a different direction than Blanton, Montgomery and Hudson. Later that night, Blanton, Montgomery

and Hudson tried to stop a couple of cars on a roadway but eventually ran off into the woods after

they saw a patrol car.

The night after all five escapees fled from the house where they stole the guns, Blanton went

to the location where Quintero said they would meet his friend Zach. Zach eventually appeared and

told Blanton that he drove Quintero and Hall to meet Quintero’s father in Nashville earlier that day.

Zach asked Blanton where the other two were, Montgomery and Hudson, and Blanton told him how

they became separated after seeing the police car. Blanton asked Zach for a ride out of the area, but

Zach was reluctant to aid Blanton. However, Zach apparently told Blanton where he could find a

car and some money to steal. Zach took Blanton to the Vester’s home. Blanton told King that the

man “put up a fight” so he “had to kill him.” Zach was with Blanton at the time, but Blanton did not

explain Zach’s role in the murders, if any. Blanton rendezvoused with Hall and Quintero in

Memphis at the bus station, which was their plan if they became separated.

King testified that he did not know Zach’s last name. During his testimony, King referred

to “these people’s house,” but he only mentioned that a man was killed. He never mentioned a

woman having been killed. Nor did he mention the number or type of weapons used. King stated

that the only information he received about the facts of this case came from Blanton. He testified

he never read the appellate court opinions. King also testified that he never talked to Cauthern about

the matter.

Kathleen Bernhardt had an encounter with Quintero and five of his fellow escapees in a

church in Kentucky on Thanksgiving in 1983. Bernhardt was by herself practicing the piano when

Quintero and the other men entered the church. Bernhardt testified that one of the men approached

her from behind and held a rag over her mouth. However, she said Quintero shook his head at the

man indicating to him to remove his hand from Bernhardt’s mouth. The men took some food from

-16-

the refrigerator and asked Bernhardt for the keys to her car. The men tied her to a chair. She

testified, however, that none of the men treated her with disrespect. The men left a little money for

the food and asked Bernhardt not to call the police until an hour after they were gone.

Jo Hall, a juror in the trial of this case, testified that her husband was the sheriff in

Humphreys County from 1976 until 1980. However, she testified that this fact did not have any

bearing on her decision as a juror. She stated that the facts introduced at trial surrounding the killing

of Mrs. Vester was the predominant reason she voted for the death penalty. In deciding to vote for

death, Hall stated she did not make a distinction between the two appellants' roles in the murders.

Hall recalled that defense counsel attempted to place the blame on another individual, but Hall

believed the evidence cleared this individual. She could not recall a particular name, but she testified

that the name Zach Pallay sounded familiar.

The deposition of Celerino Quintero, appellant Quintero's father, was read into evidence. Mr.

Quintero was unable to travel to Tennessee because of his medical condition. Mr. Quintero had

lived at the same address in Spring Town, Texas since 1981 or 82. In the early morning hours on

Sunday, June 19, 1988, Mr. Quintero received two calls from Hall. During the first call, Hall asked

Mr. Quintero if he had seen his son in the last day or so. Hall stated that he and Quintero became

separated. During the second call, Hall stated that he had since found Quintero. When asked why

his son did not call him instead of Hall, Mr. Quintero testified he did not know. Hall did not say

where Quintero was when Hall made the phone calls. During the second call, Hall stated they had

escaped from prison and asked Mr. Quintero to meet them at “the old truck stop in Nashville.” Mr.

Quintero left Texas that morning at approximately 8:30 a.m., drove about fourteen hours and arrived

at the truck stop around midnight. Mr. Quintero fell asleep after he arrived, but was awakened

before sunrise Monday morning by his son, Hall and Zach Pallay.

Quintero told his father they had to meet someone at the Greyhound bus station in Memphis.

Mr. Quintero insisted that he drive them to Memphis, rather than Pallay. Mr. Quintero did not think

much of Pallay because of things that happened when his son and Pallay were younger. When Mr.

Quintero asked his son why Pallay drove them to Nashville, Quintero said there was no one else he

could call and he did not want Mr. Quintero to be seen in the Leatherwood community with Texas

license plates. When they arrived in Memphis, Mr. Quintero dropped off the appellants about seven

or eight blocks from the station. Mr. Quintero wanted to take the appellants back to Texas with him

but they informed Mr. Quintero they were supposed to meet someone in Memphis.

Mr. Quintero did not learn of the murders until after he returned home to Texas. Mr.

Quintero testified he was never contacted prior to trial by either of the appellants’ attorneys or

investigators. According to Mr. Quintero, though he would have testified on his son's behalf, his son

was adamant that he not get involved in the matter. Although he knew a trial was scheduled, Mr.

Quintero stated did not know the actual date of the trial. Mr. Quintero admitted that his son

contacted him numerous times from prison after he was arrested for the murders in this case.

-17-

Appellant Quintero testified on his own behalf at the hearing. He had previously been

convicted of armed robbery in 1979 and two separate escape charges in 1983 and 1984. Quintero

did not testify at the trial in this case, and he stated the decision was not his but rather a "unilateral

decision" made by his attorneys. According to Quintero, his attorneys never discussed with him the

option of testifying. Based upon his previous experiences testifying at trials, his other attorneys

would not prepare him in advance but would simply call him to the stand during trial. Quintero said

he was surprised when his attorneys did not call him to testify before the close of evidence. Quintero

testified that the sheriff was administering cold medications to him at jail during the time of the trial.

He further testified this medication made him groggy during the actual trial and he did not realize

until it was too late that his attorneys rested their case.

Quintero testified that his attorneys only visited him twice in prison prior to trial. Quintero

testified his attorneys informed him they could not receive collect calls from him in prison due to

office budget concerns. He stated that he spoke with his attorneys on the phone approximately ten

times. He said his attorneys attempted to convince him to plead guilty and testify against Hall and

Blanton in exchange for a life sentence. His attorneys apparently told him that the evidence against

him was overwhelming. However, according to Quintero, they never informed him of the date or

time of the murders as known by the prosecution or asked him whether he had an alibi.

Quintero assumed his attorneys would be in contact with his family, and he was surprised

to learn that they did not call his father. Quintero acknowledged, however, that a mitigation

specialist interviewed his family. He claims the only investigation his attorneys were doing was

related to mitigation, not the guilt phase of the trial. Quintero testified his attorneys told him that

the budget concerns of the office prevented them from investigating the case personally, so they had

to rely on the investigation of Hall's counsel. Quintero told his attorneys about the facts surrounding

the Bernhardt incident, but they did not investigate the matter. The appellant told his attorneys

Pallay was lying when he testified at trial that he knew Quintero since he was six years old because,

according to Quintero, Pallay did not meet Quintero until 1979. However, Quintero said his

attorneys did not respond.

Quintero testified that he respected the elderly, and that he would not have harmed the

victims in this case. He said, “I’d probably shoot whoever was trying to shoot her [Mrs. Vester].”

When they first arrived in the Leatherwood community, which was a retirement community,

Quintero instructed the other escapees not to harm anyone because the police “would never stop

looking for us.” If he had testified at trial, Quintero stated he would have emphasized that he would

not have hurt the victims in this case. If he encountered anyone during the burglaries which were

committed, he stated he would have tied them up like he did Ms. Bernhardt.

Quintero recounted the events surrounding his escape from prison in Kentucky, as he would

have testified at trial. Although Quintero was getting close to his parole date, he decided to join the

escape. When asked why he would do such a thing, he did not have a good response. Quintero had

between five and six hundred dollars on his person. Accordingly, he stated there was no reason for

him to hurt anyone over money. Quintero believed he was the only escapee with any money. Prior

-18-

to the escape, he obtained new clothes and some food and had his hair and beard cut. He knew

Blanton was in prison for murder prior to their escape. And he also knew that Blanton and Hall did

not get along. Quintero stated that he, Montgomery and Hudson were “partners” and that after the

escape the three of them planned to stick together. However, five of the escapees, Quintero, Hall,

Blanton, Montgomery and Hudson, ended up stealing a truck together.

Quintero thought they were heading to Missouri after they stole the truck. He stated he was

surprised to learn they wound up in Clarksville, Tennessee. Quintero grew up in Clarksville, and

he was afraid someone might recognize him. He decided they should travel to the Leatherwood

community because it was a wooded area and he knew Zach Pallay lived there. He met Pallay in

1979 shortly before they were both convicted of robbery. The five escapees hid the stolen truck in

the woods and then looked for an unoccupied trailer or cabin to break into for food and camping

supplies. Quintero testified they broke into the Harris trailer around noon on June 16, 1988. Inside

the Harris home, the five escapees cooked food. Someone took a shower. After about an hour, they

took some supplies and returned to the stolen truck.

After nightfall on the 16th, Montgomery, Hudson and Blanton left the campsite while

Quintero and Hall stayed behind. The three men returned to the campsite about two hours later with

more supplies they stole from the Cherry residence, which was next door to the Harris’ home.

Quintero testified he never went into the Cherry residence. Quintero became upset with

Montgomery for unnecessarily breaking into the Cherry residence and possibly drawing attention

to their presence in the area. When Quintero awoke the morning of the 17th, he and Hall decided to

leave the other three escapees because of the animosity that developed between Quintero and

Montgomery. Quintero found a spot near a pond to set up a new camp. He testified it was near the

marina Pallay’s parents managed. It was during this time that Quintero suggested to Hall they try

to make it to Mexico. Quintero decided to try and contact Pallay to ask him to drive them to meet

Quintero’s brother in Nashville or Memphis. He remembered Pallay liked hanging around that same

pond back in 1979.

After sunset on June 17, 1988, while Quintero and Hall were at the new campsite, they saw

Pallay near the pond drinking beer and smoking a joint. Quintero introduced Hall to Pallay and

mentioned the fact that there were three other escapees nearby. Pallay learned about the prison break

from the media coverage. Pallay agreed to meet Quintero and Hall at the pond the following night,

Saturday, June 18, 1988, and help them get to Memphis to meet Quintero's brother, Brian. There

was a contingency plan for them to meet Sunday night, the 19th, if Pallay did not show on the 18th.

The other three escapees showed up at Quintero and Hall's campsite Saturday afternoon and

informed Quintero and Hall that the three of them had been spotted by a fisherman. The three

escapees brought their supplies with them, and all five men hid their combined supplies in a ravine

near Quintero and Hall's campsite. Quintero stated the five escapees then ran into the woods and

came upon the Foster residence. Quintero testified they were looking for guns because they thought

the police might be looking for them at this point. When asked why he needed a gun, Quintero

stated: "Because I was . . . being hunted. And I was going to escape. You know, I was at war. I had

-19-

- You know, this gets in my personal political beliefs, but I didn't have a problem with the people,

society in general. I was at war with the - with the government. You know, the police

administration. That's what promulgated all of the escapes, you know, the result - my mistrust of

authority and the abuse of authority and - and those kinds of things." Quintero testified he would

have no qualms shooting a police officer who was aiming a gun at him.

After they broke into the Foster house, Quintero learned for the first time that the other three

had previously broken into the McMinn house. According to Quintero, that's where the other three

escapees were spotted by the fisherman. Inside the Foster house, Quintero grabbed a 12 gauge

shotgun and sawed off the barrel. However, he stated he rendered the weapon inoperable when

sawing off the barrel. He also sawed off the stock and barrel of a 20 gauge shotgun which Blanton

gave him. Quintero testified he wore brown jersey gloves while handling the guns and suggested

to the other men they should do the same. Quintero stated Hudson and Montgomery grabbed a .22

caliber rifle and a .30-30 caliber rifle. Hall did not take a gun. Quintero told Blanton that he and

Hall still planned to escape to Mexico and he provided Hall and Blanton with his parents and uncle's

phone numbers in case they became separated again. Quintero told Blanton the plan was to meet in

Memphis at the Greyhound station. While inside the Foster home, the escapees drank some sodas

and cooked and ate some food.

Quintero testified he looked out the window of the Foster house and saw a sheriff deputy’s

car pull into the driveway. He yelled "police" and all five men fled. On the way out of the house,

Quintero grabbed a .22 caliber rifle and a box of ammunition. Quintero testified he ran off into the

woods and stayed there by himself Saturday night, the 18th. He did not meet Pallay that night as

planned. The next morning, Sunday the 19th, Quintero stated he went to find Hall at their rendezvous

spot. After he met back up with Hall, Quintero hid the .22 rifle in a drainpipe. He testified that he

did not believe he would need the gun any more because he had not seen any other law enforcement

officers after leaving the Foster home. He stated the reason they went looking for weapons in the

first place was because the other three men said they had been spotted by someone.

Quintero and Hall met with Pallay Sunday night, the 19th. Pallay told them he would be back

to pick them up the next morning, Monday, June 20, 1988. Quintero and Hall hid in the woods

Sunday night. Pallay showed up the next morning in a red and white pickup truck which had a

camper-top attached to the bed. They arrived in Nashville around dawn on Monday, June 20.

Quintero testified that Hall had telephoned Quintero's father from the Harris residence on June 19,

and Quintero's father told Hall he would drive to Nashville to meet them. According to Quintero,

his father is the one who decided they should meet in Nashville. "Pop took charge of that, you know.

. . And he said, come to Nashville, rather than go to Memphis like we had originally planned. You

know, it was - Basically, I was just going to let him - touch bases with him and, then, continue on

to Memphis." Quintero testified that his father, not Hall, suggested meeting at the truck stop in

Nashville.

According to the plan they devised with Blanton, Quintero and Hall would wait for him for

two days in Memphis. Quintero testified that by the time they arrived in Nashville he had four days

-20-

worth of growth on his beard. He also testified that Hall looked clean-shaven because of his inability

to grow facial hair. Quintero stated that the sun had risen by the time they arrived in Nashville.

Although Quintero planned to have Pallay drive him and Hall to Memphis, his father insisted on

driving them because of his distrust of Pallay. Quintero stated he was worried about getting his

father involved. However, he testified his father knew nothing about the murders at this time. They

arrived in Memphis at approximately 11:00 a.m. Quintero testified his father drove them past the

Greyhound station and dropped them off about a half mile away in a homeless park. Quintero

testified that he placed a phone call to Texas from the bus station on the 20th. He told the person who

answered the phone to let his brother, Brian, know that he would call him back in the next day or so.

Quintero testified that they met Blanton at the bus station at 10:00 a.m. on Tuesday, June 21,

1988. Quintero said he called his brother again from the bus station that day. After the security

guard told them to leave the station, they went across the street to an adult oriented business

establishment. When the employees of that business recognized who they were, they left and stayed

in a nearby abandoned building off Beale Street. Quintero testified they inquired about work at a

carnival in town so they would fit into the crowd. At some point, they were confronted by the police

near the carnival. The officer said they fit the description of the three escapees, but they informed

the officer they were carnival workers and he let them go. Quintero testified he called his brother

again the night of the 22nd from an oyster bar on Beale Street. His brother drove to Memphis the next

day, June 23, 1988, to pick up Quintero, Hall and Blanton.

On cross-examination, Quintero testified he did not tell his trial attorneys his version of the

facts. Instead, he "wanted to hear what they had to say." When asked whether he informed his

attorneys about his alleged alibi, Quintero testified he did not because "they got me to a point I just

didn't trust them anymore. I didn't have no faith in them, the system." When questioned further,

Quintero stated neither of his attorneys ever asked him if he had an alibi or anything else about the

case. In response to the question, "So you made a conscious decision not to tell your lawyers about

this alleged alibi," Quintero responded, "Well, I guess - I guess it boils down to that; yeah. A stupid

decision, I guess, but it was - it was conscious, I guess." According to Quintero, neither he nor his

attorneys knew the actual date or time of the murders.

Quintero stated that mitigation was the only matter in which his attorneys were interested.

He said he cooperated with his attorneys in that respect. Although he stated he was not interested

in the mitigation aspect of his case, Quintero believed he should assist his attorneys in gathering

information about his background. He assumed investigation into the actual facts of the case was

being done independently by his attorneys. Quintero testified he had a better rapport with the

mitigation expert in his case and that he was thus able to better communicate and provide

information to him. He said he adamantly communicated to his attorneys that he did not kill the

victims.

Quintero testified he has read a transcript of the evidence from his trial. Quintero was

subpoenaed to testify in Blanton’s trial, but he stated his attorneys advised him not to testify.

According to Quintero, he did not see Blanton again after June 18, 1988, until they met in Memphis.

-21-

Quintero first told someone about his alibi in 1999 when he filed the instant post-conviction

proceeding. When asked why he sat next to his attorneys at trial for seven weeks and not once tell

them he was not present on the date the murders occurred, Quintero responded that he “never did

really understand when the Vesters were killed.” Quintero testified he remembered trial testimony

from the fishermen who heard gunshots the night of June 20, 1988, as well as evidence that the

Vesters’ newspaper, dated June 20, 1988, was found inside their house. However, when questioned

on cross-examination, “And that didn’t strike you as, hey, wait a minute, I wasn’t there,” Quintero

did not respond.

Quintero testified on cross-examination that he stole the gloves he was wearing from the

garage of the Foster house. Quintero testified he never went into the Crawford home. When asked

whether his testimony, that he would not hesitate shooting an officer who pointed a gun at him,

would have "won you points and favors in front of the jury," Quintero stated that his comments about

that "didn't have anything to do with what I was on trial for."

Quintero stated he did not call anyone in his family from the Leatherwood community and

he stated he did not direct Hall to call anyone. He testified that his parents and brother Brian lived

in separate residences on the same property in Texas, and that his parents did not have a telephone

at that time. Quintero testified about his prior record, which included one guilty plea for armed

robbery and two convictions following jury trials for escape, and acknowledged that he “had pretty

good experience - or a lot of experience - in court in the criminal process” and was familiar with his

rights.

Appellant Hall also testified on his own behalf during the post-conviction hearing. Hall was

represented by Attorneys N. Reese Bagwell and Jennifer Roberts at trial. Hall testified that he did

not meet with Roberts until the arraignment, which occurred almost a year after she was appointed

to represent him, and that Bagwell was not present. According to Hall, Roberts did not meet with

him again until six months later. Hall stated that Roberts did not have any capital case experience

at the time of her appointment in his case. He further testified that he independently met with each

of his attorneys approximately four times prior to trial and two times together. Hall’s impression of

his attorney’s responsibilities was that Bagwell took charge of the case while Roberts “was there to

talk to me and keep me company.” According to Hall, on more than one occasion Bagwell asked

the court to relieve him as counsel because his law practice was suffering financially due to the

amount of time he was spending on Hall’s case.

Hall remembered accompanying his attorneys to the T.B.I. facility to view the evidence. Hall

remembered Bagwell informed him they believed that the murders occurred between June 18 and

22, 1988. Hall testified that neither of his attorneys discussed with him the possibility of an alibi

defense. Hall further testified that he did not learn that the victims were murdered on June 20th until

he read the supreme court’s opinion. Hall testified that he was in Nashville on June 20, 1988.

Further, he confirmed the testimony of Quintero detailing their escape, the time they spent in the

Leatherwood community, as well as their trips to Nashville and Memphis. Hall testified that he did

not arm himself after they broke into the Foster residence.

-22-

When his counsel asked why he did not inform his trial attorneys about his possible alibi,

Hall testified he did not know when the victims were murdered. Hall said he questioned Bagwell

why he was not charged with the burglary of the Crawford residence even though the can of ham

with his fingerprint was found there. Bagwell mentioned to him “something about a movable object

theory” which Hall stated he did not understand. Hall told his attorneys he did not burglarize the

Crawford residence. He also informed them he did not kill the victims, burglarize their house, or

steal their car. Hall testified he was never in the Vesters car. Hall also testified he cannot grow a

full beard.

Hall testified that Bagwell discussed with him the option of testifying, but that Bagwell

ultimately concluded it was not a good idea. Hall stated he did not realize the ultimate decision

about whether or not to testify was his; he trusted Bagwell and “figured he knew what he was talking

about.” Hall knew if he testified his criminal record would be placed into evidence, and he testified

at the hearing below that he did not want his record before the jury. However, Hall testified that

Bagwell never informed him there were ways to possibly limit the questions the prosecutor could

ask about his past crimes or soften the impact evidence of his previous convictions would have on

the jury. According to Hall, Bagwell told him “things were under control” and that Hall “didn’t have

nothing [sic] to worry about.” Bagwell informed him the prosecutor did not possess any evidence

implicating Hall for the murders, however, he told him the telephone call to his girlfriend and his

fingerprints would be damning evidence of the burglaries.

During cross-examination, Hall acknowledged having prior experiences with lawyers and

the criminal justice system. Hall testified he was previously involved in at least five criminal court

proceedings. Hall’s attorneys moved to sever his case from Blanton. As part of the motion, Hall

signed an affidavit stating that he and Blanton were separated on June 18, 1988, and that he would

not testify if called as a witness in Blanton’s trial. Hall testified that after the escapees fled the Foster

residence on June 18, 1988, he went back to the abandoned truck and subsequently broke back into

the Harris home. Hall stated he called Quintero’s father early the next morning to ask if Mr.

Quintero had heard from his son. He testified Mr. Quintero was asleep during the first call so he

agreed to call back later in the morning. Hall also telephoned his girlfriend in Pennsylvania. He

stated he left the Harris house after daybreak and found a spot to hide out in the woods near the pond

where he and Quintero were to meet. Hall said Quintero met him sometime around dark later that

day.

Hall reiterated on cross-examination that he did not realize he had an alibi because he did not

know when the murders were committed. He stated he did not remember the fishermen testify that

they heard gunshots the night of June 20, 1988. Hall testified he did not pay attention during much

of the testimony at trial because he was either talking to Attorney Roberts or tired after talking all

night to fellow female inmates. When questioned whether it was his choice not to pay attention

during trial, Hall stated, “Well, I was - I don’t know if it was much of a choice, I just - I got - I was

doing something else.”

-23-

One of the jurors testified he remembered seeing the two appellants brought into the

courtroom in shackles. Another juror testified the jury could not determine for which murder each

appellant was responsible. This juror also testified that the inmate barber who testified about the

appellants’ haircuts and facial hair lost credibility when he acknowledged wanting to change his

name to “Oogateeboogatee.” Another juror testified that evidence about Quintero’s encounter with

Ms. Bernhardt, where no violence occurred, “probably would have” made a difference. However,

on cross-examination, this juror also stated evidence about Quintero’s previous escapes would have

influenced his decision to vote for the death penalty.

Attorney Jennifer Roberts graduated from law school and was licensed to practice law in

1987. She was appointed in December 1989 to represent appellant Hall in this capital murder trial.

Roberts testified that this was her first murder trial; she believed she was not qualified to serve as

either lead or co-counsel. Roberts filed a motion to withdraw from the case. The trial court,

however, denied the motion and appointed qualified counsel to assist. The fee claim she submitted

for compensation in this case totaled $16,335.00. Roberts testified that she lost money in her regular

practice due to the amount of time she devoted to this case.

Roberts testified that Reese Bagwell was lead counsel and that she considered her role as “a

gopher-type, doing what I was told.” Roberts identified several motions for expert services prepared

by Bagwell and she acknowledged that the certificate of service reflects that copies were forwarded

to the prosecutor and counsel for Quintero. Roberts drafted the initial motion for new trial. She

testified that she began experiencing “communication problems” with Bagwell after the conviction

and she later learned that a motion for new trial had not been filed despite the looming deadline. She

received a copy of the motion filed by Quintero’s attorneys and copied some of the issues they

presented. Roberts stated she did not undertake an independent review of the transcript of evidence

to identify issues which pertained to Hall.

During the preparation of the brief on appeal to this Court, Roberts testified that Bagwell did

not maintain contact with her. “I just assumed that Mr. Bagwell had a vast amount of experience

in this and tried a wonderful case, in my estimation, and I thought that he was handling it.”

However, Roberts testified that approximately two days before the brief was due Bagwell contacted

her and asked her to prepare the brief. Evidently, though Bagwell received extensions on the due

date and informed Roberts she did not have to worry about anything, Bagwell was not working on

the brief. Roberts recalled that this Court ordered Bagwell to appear before a panel to show cause

why he should not be held in contempt for failing to timely file a brief. Bagwell ultimately filed a

brief that was a copy of the one prepared by Quintero’s attorneys. Roberts testified that a number

of the issues Bagwell included in the brief were not relevant to their client’s case. Roberts prepared

and filed the appellate brief in the supreme court. Again, Roberts testified that Bagwell was

supposed to prepare the brief, but she discovered near the due date that it had not been filed and

Bagwell failed to respond to her communications. She stated she did not have sufficient time to do

any independent research so she merely assimilated in the supreme court brief those issues which

were filed in the brief before this Court. Roberts did not claim compensation for work on appeal

because she “didn’t do anything.”

-24-

Roberts testified that she attended portions of Blantons trial, which occurred before the trial

in this case. She did not remember filing a bill of particulars or a notice of alibi on behalf of Hall.

Nor did Roberts remember discussing with Hall the State’s request for a notice of alibi. However,

Roberts stated she gained knowledge about the State’s theory on the time of death from Blanton’s

trial. Roberts testified that the defense theory at trial was to attempt to highlight the State’s inability

to prove which defendant killed which victim. Roberts did not remember whether Bagwell directly

asked Hall if he had an alibi.

Roberts did not recall discussing with Bagwell whether or not they should challenge the

medical examiners opinion regarding how long the victims survived after the infliction of the

wounds. Roberts testified she was surprised when Ben Spencer, who testified about the length of

the appellants’ hair, stated during cross-examination in court that he had changed his name to

“Oogateeboogatee.” She agreed that Spencer’s credibility was lost at that point. However, Roberts

did not remember discussing the need to call a dermatologist or other expert. Roberts remembered

Hall being in leg shackles during trial, but she stated his hands were not cuffed and they attempted

to make sure his legs were hidden from the jury’s view.

Roberts testified that Hall “was not real keen on the fact of having anybody involved” in his

trial, but she stated that Hall “would have been the one that [sic] would have told me about” asking

his brother to testify at sentencing. Roberts also testified that she had the primary responsibility of

securing and questioning the expert witness during sentencing.

Roberts testified on cross-examination that she was able to gain advice from her law partners,

who were more experienced attorneys and had tried capital and non-capital murder cases, throughout

the duration of her representation in this case. She also testified that she did not claim compensation

for all of the work she actually performed. Roberts testified they had three days of motion hearings

before trial, and the trial lasted six weeks and two days. She stated that the trial “was absolutely

excruciating for [her] and everybody else that was involved in it.”

According to Roberts, neither defense team was surprised at trial by the testimony of the

fishermen who heard gunshots on the night of June 20, 1988. She believed she was even aware of

that fact before the Blanton trial. Roberts stated they were provided open-file discovery by the

prosecutor; “In going through it, I didn’t find anything that y’all had that we didn’t have.” Roberts

also obtained a synopsis of the proposed testimony of all of the State’s witnesses prior to trial, even

though she testified that “I don’t think that y’all intended for me to get that stuff, but I got it

nonetheless.” Roberts testified it was unusual for the prosecution to allow defense counsel, along

with the defendants, to view evidence and interview experts at the T.B.I. laboratory. Roberts also

remembered her and Bagwell discussing with the trial judge, ex parte, the need for expert services.

Roberts testified that, based on the fact that the trial was being held in rural Humphreys County, they

did not see the need for a jury expert.

-25-

When Roberts was asked what she could have done differently in this case, she responded,

“At the beginning, I don’t know of a lot that I could have done different.” But in retrospect, Roberts

stated she would have taken more of a lead “rather than sitting back” and “using it as a learning

experience.” She admitted, though, that her strategy might have been different given the fact that

the end result after a six week trial was not favorable. Roberts testified that hindsight is always

twenty-twenty. Roberts also stated that she could have taken more of an active role in the appellate

briefing process. According to Roberts, Bagwell had an impeccable reputation and was a very

competent trial attorney. Roberts stated that she never had any problems communicating with

Quintero’s attorneys.

Roberts testified that she met with Hall several times prior to trial and that she was always

available for him to call. When Roberts was questioned during cross-examination whether Hall ever

mentioned a potential alibi, the following exchange took place:

Prosecutor: Okay. He never mentioned anything about an alibi?

Roberts: The conversations that I had with Mr. Hall concerning the facts and

circumstances of this case were very limited.

Prosecutor: Okay. Would he not cooperate?

Roberts: Yes, he cooperated with everything that I asked him to do.

Prosecutor: So, why they were limited?

Roberts: I - that’s something that he would have to - have to -

Prosecutor: Well, I’m asking -

Roberts: - respond to.

Prosecutor: - you, now?

Roberts: I don’t know. I don’t know why they were limited.

Prosecutor: Well, would he cooperate with you?

Roberts: Yes, sir. If I asked him -

Prosecutor: Would -

Roberts: If I asked him a question, he would answer it.

-26-

Prosecutor: Okay. But otherwise, he wouldn’t volunteer any information?

Roberts: No, sir, I didn’t ask him to volunteer any information.

Prosecutor: So he never told you about an alibi?

Roberts: I - I don’t recall that I asked him did he have an alibi.

Prosecutor: No, my question was: Did he tell you that he had an alibi?

Roberts: Not to my recollection that that was not a discussion that [Hall] and I ever

had.

Prosecutor: And why didn’t you discuss that with him?

Roberts: I don’t know. I - I - I - I hate to say it this way, but [Hall] took a lot of his

cues and what information that he gave me from - from [Quintero].

Prosecutor: Okay.

Roberts: You know, they - he and - [Hall, Quintero and Blanton] had a - had a - At -

At the very beginning, it’s my recollection that they had a common plan that

they wanted us to present. And I got the information that [Hall] wanted me

to get. And - And we had a mutual understanding that I took what he gave

me - the information that he gave me - and I didn’t press him on - on the

other issues. It’s - Like, with his family issues. I mean, they’re just - he - he

wasn’t forthcoming with information about his family.

Roberts never conducted an independent interview with Quintero. Regarding the common

plan that Roberts testified the three co-defendants maintained, even after Blanton’s case was severed

her impression was that Hall and Quintero “were not going to have any different story about the

events that went on. They had a common goal.” According to Roberts, if either Hall or Quintero

had an alibi and the other did not, neither was going to “cross each other.” After Blanton’s case was

severed, Roberts discussed with Hall the possibility of severing his case from Quintero’s but Hall

“specifically said, no, do not do it.” Roberts testified they argued to the jury that, because there was

evidence of so many different burglaries, there being no specific time-line established by the State,

and no specific evidence who killed each victim, the State did not prove beyond a reasonable doubt

that Hall was in the Vester’s home versus burglarizing another house at the time of the murders.

Shipp Weems, District Public Defender for the 23rd Judicial District, was appointed to

represent Quintero at trial. Weems had been practicing law since 1976. Weems testified that at the

time of his appointment in this case he and his three assistants each carried an open caseload of

approximately 800 cases each. Weems was assigned to seven capital cases during that time. Weems

-27-

had previous experience trying capital cases. Weems stated his office did not have the resources

available to handle that many cases at once. Weems testified the court knew about his caseload, but

he recognized it was his job to defend those cases. His office did not employ a separate investigator

during that time, as that position was filled by another attorney due to the caseload. Weems

remembered requesting services for an investigator in other capital cases, which requests were

denied, but did not remember specifically filing a similar motion in this case.

Weems testified that he never spoke with Quintero’s father. Although he stated that he

would have liked to interview Mr. Quintero, he said the reason he did not was lack of time and

resources. Weems believed he met with Quintero in prison more than two times prior to trial.

Weems did not recall any conversations he had with Quintero about an alibi. Weems, however,

acknowledged the procedure for filing a notice of alibi. Though he stated none was filed in this case,

he also stated that this was something that would not have been ignored.

According to Weems, counsel did not investigate the facts or circumstances surrounding

Quintero’s previous convictions. In retrospect, he stated he would have been obligated to investigate

that information. Acknowledging his office’s budget concerns during the period of his

representation of Quintero, Weems testified that his office did not accept collect telephone calls.

Weems testified that budget restraints adversely affected his ability to adequately prepare his cases

for trial.

Weems did not believe they presented a strong mitigation defense at sentencing. Weems

testified that Mr. Quintero’s testimony combined with the testimony of Ms. Bernhardt potentially

could have made a difference in this case, which was based on circumstantial evidence. However,

during cross-examination, Weems agreed that the prosecutor could have made the argument that,

because Quintero was apprehended after tying up Ms. Bernhardt, he would not have made the same

mistake again with the victims in this case.

Weems admitted that the prison barber’s credibility was lost when he revealed his name

change, but he also stated he did not think the court would have granted funding at that point in the

trial for an independent dermatologist to testify on their behalf. According to Weems, even the State

did not learn about the name change until they received documents from the guards from the

Kentucky prison who transported the inmate to trial.

Weems remembered making a request for a fingerprint expert to evaluate the State’s expert

after the trial court apparently changed its mind and allowed the State’s expert to testify. However,

Weems also remembered that this occurred on a Friday during trial and the court only allowed them

until Monday to obtain the experts services. According to Weems, they could not accomplish that.

Weems raised the issue in the motion for a new trial but did not remember why he did not present

the issue on appeal.

Weems testified that counsel for both appellants would normally meet the morning before

trial to discuss issues, but he recalled that Bagwell usually arrived late. The mitigation specialist for

-28-

whom Weems received funding met with Quintero a number of times prior to trial. Weems did not

call him as a witness because he was not satisfied with his work product. However, Weems did not

believe the trial court would approve funding for another mitigation specialist. Weems testified they

decided to leave the former sheriff’s wife on the jury, despite her position on the death penalty,

because they wanted independently thinking, educated women on the panel.

Weems stated that, although he did not necessarily ask all of his clients if they had an alibi,

he would expect those who did to inform him of such. He never heard Quintero mention evidence

of an alibi in this case. Weems commented on his defense strategy: “[B]ecause the case was

circumstantial, we were basically employing the fact that they couldn’t prove it beyond a reasonable

doubt.” After Blanton’s case was severed, Weems advised his client it would be “a horrible, horrible

mistake for him to testify at that trial.” Weems identified the affidavit Quintero signed when

Blanton’s trial was severed. In the affidavit, Quintero stated that he did not see Blanton in Stewart

County after approximately 11:00 p.m. on June 18, 1988. Weems testified, though, that he did not

ask Quintero to provide him a time-line of his whereabouts between June 18 and June 22, 1988.

Further, Quintero stated in the affidavit that he would assert his Fifth Amendment right not to testify

at Blanton’s trial.

Zachary Pallay testified at trial. Quintero called Pallay to testify at the post-conviction

hearing. Pallay stated at the time of the crimes in this case he had shoulder-length hair, but no beard.

Pallay believed at the time that he was a suspect for the murders. Pallay learned about the

prisonbreak on the radio. He stated that if the appellants had come to his house he would have asked

them to leave, and further stated he would not have hesitated shooting them if they did not comply.

Pallay testified he knew the Vesters “very well.” Pallay testified during the hearing that he did not

see Quintero in June 1988, and he had never seen Hall before. He did not know when the victims

died, and he stated that he did not drive Quintero and Hall to Nashville.

Danny Warren, Deputy Sheriff with the Humphreys County Sheriff’s Department,

transported the appellants to and from the jail during the trial. The appellants were transported in

shackles. However, their handcuffs and shackles were removed before the jury entered the

courtroom. Likewise, the appellants were placed back into their handcuffs and shackles at the end

of the day only after the jury left the courtroom. Deputy Warren testified that the appellants were

never escorted in handcuffs or shackles in the presence of the jury.

The State called Attorney Steve Stack to testify at the hearing. Stack was Weems’ co-counsel

for Quintero at trial. Stack tried two previous capital murder cases. Stack confirmed Weems’

opinion about the mitigation investigator. Stack testified that he met with Quintero a number of

times before trial. Stack also advised Quintero against testifying at Blanton’s trial. Stack testified

that he investigated the facts of this case. Stack remembered the appellants being restrained in

shackles at the conclusion of the guilt phase of the trial.

The State called Attorney Roberts as a rebuttal witness. She testified about her involvement

in numerous other major felony cases prior to her appointment in this case. During cross-

-29-

examination, Roberts testified they argued that the items on which Hall’s fingerprints were found

were moveable items that could have been brought to the scene after he touched them somewhere

else. Roberts testified that during trial the judge changed his mind about the admissibility of the

fingerprint evidence but permitted defense counsel to obtain an independent examination over a

weekend. Roberts stated that any such examination in that short of a period of time was impractical.

Though the issue was presented in the motion for new trial, Roberts stated the same was not raised

on appeal because Bagwell simply copied Quintero’s brief which did contain the issue.

Roberts testified that Bagwell presented a time-line to the jury during closing argument

explaining that it was possible that Hall could have been burglarizing another home when the victims

were killed. Roberts reiterated that Hall instructed his attorneys he did not want to implicate either

Quintero or Blanton; “they were in it together and their stories were going to stay the same.” As

Roberts stated, attempting to place Pallay in Memphis together with Quintero and Blanton would

have gone against Hall’s directive to counsel. Although Blanton moved to sever his case from the

appellants, Roberts stated that Blanton’s attorneys recommended severance and Blanton merely

heeded their advice.

Deborah Wolkhaner testified that she is a certified master social worker with a master’s of

science degree in social work, with a clinical concentration. After describing her training and

experience, Wolkhaner stated that she had been retained by Hall during post-conviction to

investigate potential mitigation evidence. She met with Hall on a number of occasions and spoke

with his family in Kentucky.

Wolkhaner expressed her belief that the initial motion to withdraw filed by counsel

contributed to a lack of trust between Hall and trial counsel. After obtaining a release, Wolkhaner

obtained Hall’s school records (elementary through completion of his GED), medical records from

childhood through incarceration, birth records, biological mother’s death records, and marriage and

divorce records. She also reviewed records of Dr. Anchor and Dr. Craddock. She cautiously

approached Hall and the family to gain their trust and confidence. Wolkhaner interviewed Robert

Hall (appellant’s brother), Barbara Hall (appellant’s sister), Patricia Burton McNeill (appellant’s

half-sister), Barbara Cook (appellant’s niece), Bob Steele (pupil personnel coordinator at the

elementary school), and Tammy Tate. Her interviews with these individuals helped develop a

picture of Hall’s life. She was not able to locate Hall’s father.

Wolkhaner testified that Hall’s life revealed poverty, malnourishment, loss and abandonment,

divorced parents, and instability in the home. His stepmother was addicted to heroin, Valium and

codeine. Hall’s life had a theme of alcohol and substance abuse. According to her investigation, at

age fifteen Hall went to live with a lesbian couple who wanted him to father a child for them. On

one of Hall’s birthdays, a brother purchased a Valium for him.

During examination by Quintero’s counsel, Wolkhaner agreed that evidence a person had

passed up an opportunity to be violent to an elderly person would have supported the position that

someone did not seek or provoke violence. She further described the purposes and benefits of a

-30-

mitigation specialist. On cross-examination by the State, Wolkhaner affirmed that her responsibility

was to reveal Hall’s problems. She stated that she attempted to check both sides of every story.

Wolkhaner admitted she did not review documents about particular inmate incidents wherein Hall

assaulted another individual. She further had no information about various incidents involving

violence while incarcerated. Wolkhaner opined that Dr. Archer did an incomplete job because he

only brought Robert Hall into the life cycle proof.

After much discussion about Hall’s life and what Wolkhaner did or did not know, Wolkhaner

testified that a thorough mitigation investigation could reveal evidence useful to the defense at the

penalty phase of a trial. She said that while this type of evidence does not excuse conduct, it shows

the jury that these social factors have effects on an individual’s sense of self and their development.

Dr. Murray Wilton Smith, a medical doctor who specializes in addictionology, testified on

behalf of Hall. During his career, he has treated approximately ten thousand patients who have

problems with alcohol and drugs. He formerly ran the program at Baptist Hospital, but at the time

of the hearing served as medical director at New Life Lodge in Dickson, Tennessee.

Dr. Smith testified that he evaluated Hall, examined Hall’s records and conferred with Ms.

Wolkhaner and Dr. Auble concerning Hall. He testified that Hall began using drugs at an early age,

around nine or ten. By the time Hall was twelve or thirteen, he was using alcohol and Valium in

large amounts. This drug use adversely affected Hall’s mental development. Hall’s emotional

maturation was arrested so that he became a “perpetual adolescent.” Dr. Smith testified that persons

in Hall’s situation tend to be impulsive and tend not to consider the consequences of their behavior.

Hall ceased using drugs upon his incarceration and his mental and emotional maturation

process recommenced while he was incarcerated. His only role models were other inmates. Dr.

Smith testified it is important to explain to a jury about the process of addiction because the general

public does not understand addiction and believes that drug use in this situation is a voluntary choice.

On cross-examination by Quintero, Dr. Smith testified that NyQuil is 60 to 70 percent

alcohol and Benadryl is an antihistamine. The products will impair judgment and make a person

drowsy. On cross-examination by the State, Dr. Smith testified that it was his understanding that

Hall had been “clean” for about five years prior to the murders in this case. He testified that Hall’s

model of what people did in his environment was to control things by violence. He stated that under

stress, people tend to go back to their basic survival strategies.

Dr. Pamela Auble, an expert in neuropsychology, testified on Hall’s behalf. Dr. Auble

administered Hall a number of psychological tests and evaluated the results thereof. None of the

results indicated that Hall was malingering or exaggerating his problems. Hall, she testified, was

operating in the average range of intelligence.

Dr. Auble testified that she was familiar with Dr. Kenneth Anchor, the psychologist who

testified as Hall’s mitigation witness at trial. She reviewed Dr. Anchor’s report and trial testimony.

-31-

She also reviewed the testimony of the State’s expert, Dr. Samuel Craddock. Dr. Auble’s findings

were consistent with early abuse of drugs. She found Hall to be impulsive. Dr. Auble opined that

Hall wanted to get along with people but had trouble trusting them. Dr. Auble found no indication

of brain damage or organic brain problems.

Dr. Auble disagreed with Dr. Anchor’s evaluation that Hall suffered from Organic

Personality Syndrome. Dr. Auble testified that her testing and evaluation of Hall was more extensive

than that of Dr. Anchor. Dr. Auble testified that, in her opinion as a neuropsychologist, Dr.

Craddock’s diagnosis of Hall was more accurate than that of Dr. Anchor. She testified that Dr.

Craddock had access to more information about Hall than did Dr. Anchor and that it was the

responsibility of counsel to ensure that the expert is furnished with the appropriate materials and

records. Dr. Auble testified that Dr. Anchor was suspended from practice roughly a year after the

trial in this case. Dr. Auble thought she was contacted by Quintero’s trial counsel but she did not

remember the specifics, including whether the contact was before or after the trial.

Pat McNeill, Hall’s half sister, is seventeen years older than Hall and did not live in the home

with her mother and family when Hall was born. McNeill testified that the family lived in extreme

poverty. They had no running water and no inside restrooms. Hall’s father, McNeill’s stepfather,

worked on a boat and was frequently away from home. Hall and his mother had a close relationship.

She described Hall as “mamma’s baby,” and explained that he did not wander far from his mother.

Hall’s parents were divorced when Hall was approximately three years old, but his father moved in

with a lady down the street. McNeill testified that when the kids attempted to visit their father, he

would chase them away. Their mother developed throat cancer and passed away. According to

McNeill, their mother did not want to tell the children about her cancer right away. After their

mother died, the children when to live with their father.

On cross-examination by the State, McNeill explained that very few people had running

water at the time, though some had cisterns. The family did have electricity and used outhouses.

She was asked about her stepfather, Gene Hall, but did not know if he was dead or alive.

Barbara Newton, Hall’s sister, lived in the same house much of Hall’s life. Newton

explained that everything was fine at home until their mother died, at which time everything “went

down hill.” Newton admitted that she was recovering from alcoholism and drug addiction. Her

stepmother was an addict and often provided drugs for the children. Hall also became addicted to

drugs. She knew nothing of Hall’s prison escape and the murders in this case until co-workers

mentioned something about it. However, she did not know about the trial and indicated no one

contacted her about testifying. On cross-examination, Newton stated that her brother, Robert Hall,

knew her telephone number.

Barbara Cook, the daughter of Barbara Newton and niece of Hall, testified that Hall lived

with them for a while when she was younger. Cook described Hall as more of a brother than an

uncle, and indicated he protected her from everything. Cook testified that she had no knowledge of

-32-

Hall’s trial but indicated she would have cooperated had she been contacted. She did acknowledge

that she read about the escape in the newspaper, but made no attempt to contact Hall.

John Oliva, an attorney practicing law in Nashville, Tennessee, testified on Hall’s behalf.

After stating his credentials, Mr. Oliva described his trial experience, including his work on capital

cases. Hall offered Mr. Oliva as an “expert attorney” for the purpose of establishing the standard

for attorneys practicing criminal law in Tennessee. In preparation for his testimony, Oliva reviewed

much of the trial record. Oliva explained that upon reviewing the records and having heard the

testimony of trial counsel for Hall, he concluded that the work performed by trial counsel fell below

the established standard. When asked about the basis of the standard, Oliva cited the standards

promulgated by the American Bar Association. Giving specific references to various guidelines,

Oliva opined that under each guideline, trial counsel failed to meet their duty. He also opined that

counsel fell below the standard established by the United States and Tennessee Supreme Courts.

Dr. Patty Van Eys, a clinical psychologist who specializes in the area of child maltreatment

and child psychopathology, also testified on Hall’s behalf. Dr. Van Eys stated there are stages of

health development in childhood. In Hall’s early years, she noted several disruptions of attachment,

including divorce and his mother’s death. She specifically referenced a letter from Hall’s mother

indicating that Hall was pulled from her arms when he learned about her cancer. She further referred

to records that Hall was malnourished as a child. Dr. Van Eys stated that following the loss of his

mother, Hall was forced into the home of his father and step mother. His father was noticeably

absent from the home and his stepmother was addicted to several substances. On cross-examination,

Dr. Van Eys admitted that she had not spoken with Hall. Instead, she based her evaluation on

communications with Dr. Auble and Ms. Wolkhaner.

Thomas Watson, an attorney licensed to practice law in Tennessee, testified as an expert

witness on Bagwell’s performance. In reviewing Bagwell’s invoice for services in Hall’s case,

Watson testified that he did not meet with Bagwell on the three occasions listed on Bagwell’s

invoice. In fact, Watson testified that he never met with Bagwell and never discussed the case with

him. Paul Morrow, also an attorney licensed to practice law in Tennessee, testified that he was a

member of the Capital Case Resource Center during the late 1980's and early 1990's. Morrow

testified that he did not confer with Bagwell about Hall’s case on the three occasions listed on

Bagwell’s invoice. Morrow kept his files from the Capital Case Resource Center and there was no

indication from his files or his memory that he had ever discussed Hall’s case with Bagwell.

Morrow testified that if Bagwell had called him, he would have referred him to other attorneys in

the Center because Morrow’s speciality was post-conviction proceedings.

Writ of Error Coram Nobis

As noted above, the appellants filed a joint petition for a writ of error coram nobis on the day

that the post-conviction hearing commenced. The appellants alleged the existence of newly

discovered evidence in the form of testimony from two fellow death row inmates, Ronnie Cauthern

and Terry Lynn King, stating that Blanton confessed that the appellants were not present at the scene

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when he killed the victims in this case. The appellants argued that this evidence may have resulted

in a different verdict had it been presented at trial. Though the appellants missed the one year filing

deadline, the trial court concluded that due process required consideration of the merits of the

petition.

The concept of a petition for a writ of error coram nobis, which was developed in the

common law, is now codified in Tennessee by statute. See Tenn. Code Ann. § 40-26-105. Relief

may be granted under the statute “for subsequently or newly discovered evidence relating to matters

which were litigated at the trial if the judge determines that such evidence may have resulted in a

different judgment, had it been presented at the trial.” § 40-26-105(b). However, as our supreme

court observed, “[t]he writ of error coram nobis is an extraordinary remedy known more for its denial

than its approval.” State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). According to the mandate

of the statute, “relief obtainable by this proceeding shall be confined to errors dehors the record and

to matters that were not or could not have been litigated [earlier].” § 40-26-105(b). Moreover, the

appellant must show that he or she “was without fault in failing to present certain evidence at the

proper time.” Id. Reaffirming its holding in Mixon, the supreme court recently stated the following

regarding the standard to be applied when a trial court reviews a petition for a writ of error coram

nobis:

[T]he trial judge must first consider the newly discovered evidence and be

"reasonably well satisfied" with its veracity. If the defendant is "without fault" in the

sense that the exercise of reasonable diligence would not have led to a timely

discovery of the new information, the trial judge must then consider both the

evidence at trial and that offered at the coram nobis proceeding in order to determine

whether the new evidence may have led to a different result.

State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007) (emphasis in original). The decision whether

to grant or deny relief rests within the sound discretion of the trial court. State v. Hart, 911 S.W.2d

371, 375 (Tenn. Crim. App. 1995).

A petition for a writ of error coram nobis must be filed within one year of the date the

judgment becomes final in the trial court. Mixon, 983 S.W.2d at 671. However, our supreme court

recognized that due process considerations may require tolling of this limitation period. See

Workman v. State, 41 S.W.3d 100, 101 (Tenn. 2001). In Workman, the court weighed the

government’s interest in preventing stale and groundless claims against the appellant’s interest in

having a hearing on the alleged grounds of newly discovered evidence that may establish actual

innocence of a capital offense. Id. at 103. Noting the delay in obtaining the evidence was not

attributable to the appellant, the court reasoned that due process afforded the appellant a "reasonable

opportunity after the expiration of the limitations period to present his claim in a meaningful time

and manner." Id. (internal quotations omitted).

In the instant case, the trial court stated that “the proffered evidence, if believed, would

establish the actual innocence of” the appellants. Although the trial court concluded that the statute

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of limitations should not bar consideration of the petition, the court did not comment on the obvious

delay in presenting the evidence. According to the written petition, the appellants did not become

aware of the evidence until the “summer of 2002.” As noted above, the error coram nobis petition

was filed on March 31, 2003. We do not find this to be such an inordinate delay as to have

precluded the trial court from considering the petition. See Workman, 41 S.W.3d at 103 (thirteen

month delay in filing petition after discovery of evidence did not exceed the reasonable opportunity

afforded by due process). Nor do we find that the statute of limitations prevented the trial court from

considering the merits of the petition. Id. (“Weighing these competing interests in the context of this

case, we have no hesitation in concluding that due process precludes application of the statute of

limitations to bar consideration of the writ of error coram nobis in this case.”). The State did not

object to the trial court’s consideration of the petition, thus any objection raised on appeal regarding

the statute of limitation is deemed waived. See Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003);

Calvin O. Tankesly v. State, No. M2004-01440-CCA-R3-CO, 2005 WL 2008203 at *6 (Tenn. Crim.

App., Aug. 19, 2005). We now review the trial court’s denial of error coram nobis relief under an

abuse of discretion standard. Hart, 911 S.W.2d at 375.

The proof in support of the error coram nobis petition in this case was presented

simultaneously with the post-conviction proof, and the trial court ruled upon both petitions in

consolidated orders for each appellant. However, the nature of the separate petitions and the burden

of proof required for the requested relief are different. Because a writ of error coram nobis is an

“extraordinary procedural remedy,” Mixon, 983 S.W.2d at 672, the relief obtainable is confined to

errors outside the record and to matters which were not or could not have been litigated during the

trial or post-conviction proceedings. § 40-26-105(b); Arthur L. Armstrong v. State, No. M2005-

01325-CCA-R3-CD, 2006 WL 1626726 at *5 (Tenn. Crim. App., Jun. 8, 2006). While the facts are

necessarily intertwined, as both petitions relate to the same trial proceeding, and the requested relief

is similar, the courts must review each petition independently under the applicable law governing

the statutory remedies. We discuss later in the opinion the issues presented in the post-conviction

petition.

The trial court ruled on the error coram nobis petition before considering the grounds for

relief presented in the post-conviction petition. The testimony of Terry Lynn King and Ronnie

Cauthern is summarized above. The trial court examined this evidence in light of the proof

presented at trial. However, the court correctly did not reference any of the proof presented in

support of the post-conviction petition. In reviewing the merits of the error coram petition, the

courts are bound to look only at the evidence presented at trial and that offered in support of the

coram nobis petition to determine whether the new evidence may have led to a different result.

Vasques, 221 S.W.3d at 527.

The trial court made the following ruling on the petition:

[Appellants] would have the Court believe the testimony of inmates Cauthern and

King that Blanton, before he died, stated to them that Blanton would testify to

exonerate [the appellants]. They testified that Blanton would not so testify during his

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life because it would damage his own appeal. It may be safely assumed that

Blanton’s case would be on a similar time line as that of [the appellants]. Had

Blanton been alive and testified to exonerate [the appellants], it still would have

damaged his own post-conviction case. In short, the motive for Blanton to remain

silent would still exist if Blanton were alive. [The appellants] would have the Court

believe that Blanton, a twice-convicted murderer, would have sacrificed his own case

(and possibly his life) to aid [the appellants] and to insure that justice was served.

Also, Blanton’s supposed statement to inmate King was to the effect that Blanton

alone killed Mr. Vester from inside the house when Mr. Vester resisted Blanton’s

efforts to steal the Vester’s car. Neither inmate indicated that “Zack” assisted in

committing the murders, only that he was present. These inmates’ recitation of

Blanton’s supposed statement do not conform to the evidence of the Vesters’

murders. To believe this statement, this Court would have to accept the fact that

Blanton killed the Vesters using two different firearms and a knife. One inmate

testified that Blanton mentioned an “old man” while the other testified that “they”

resisted and he had to kill “them.” King testified that Blanton killed the “old man”

in order to steal his truck when in fact it was a car that was stolen. The supposed

statement of Blanton simply does not square with the known facts.

Even assuming by some miracle that Blanton had testified at [the appellants’] hearing

as the inmate witnesses related his statements to them, Blanton would have been

devastated on cross-examination using the known facts of the murders to such an

extent that his entire testimony would have been unbelievable.

The Court finds that the proffered testimony would not have altered the result of [the

appellants’] trial. There is no “reasonable probability” that the result of the

proceeding would have been different.

The trial court clearly was not “reasonable well satisfied” with the veracity of King’s and

Cauthern’s testimony. Under the governing standard, the court could have ended its inquiry after

reaching that conclusion. Nothing in the record suggests that the trial court abused its discretion in

this respect. The error coram nobis petition states that, “[i]n the summer of 2002, post-conviction

counsel for William Hall was informed that post-conviction counsel for Derrick Quintero had

obtained statements from inmates that exonerated their clients.” Blanton’s statements to Cauthern

and Hall were necessarily made prior to his death in 1999. While considering the truthfulness of this

alleged newly discovered evidence, this Court cannot ignore the fact that well over two years passed

before either Cauthern or King revealed the information to the appellants or their counsel. Though

Cauthern testified that Blanton was hesitant to jeopardize his own case by confessing, this concern

was obviated by Blanton’s death. The timing of the discovery of this proffered evidence is

suspicious. Although this does not affect the timeliness of the petition itself, it does bear upon the

Court’s consideration of the veracity of the testimony.

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Assuming the trial court was “reasonably well satisfied” that the newly discovered evidence

was truthful, its conclusion that the evidence would not have altered the verdict is otherwise

reasonable. As recounted above, the trial court discussed the variances between the details of

Blanton’s statements to King and Cauthern and the evidence introduced at trial: Blanton apparently

stated he alone killed both victims even though the evidence demonstrated that three different

weapons were used; Blanton apparently told King he killed an “old man” while he told Cauthern he

killed “them”; and Blanton mentioned that he killed Mr. Vester during a struggle when evidence at

trial showed he was shot from outside the home. Although the appellants argue that the variances

can be explained, we agree with the trial court’s finding that the testimony of Cauthern and King

would not have resulted in a different verdict. Moreover, Blanton supposedly informed King that

Zach Pallay accompanied him to the Vester residence. However, Pallay testified at trial that he had

no involvement in the crimes committed against the Vesters. Pallay’s testimony would have directly

contradicted that of King and Cauthern, who would have been subject to cross-examination on the

matter.

We conclude that the trial court did not abuse its discretion in denying relief on the error

coram nobis petition. The appellants, therefore, are entitled to no relief on this issue.

Post-Conviction Burden of Proof and Standard of Review

The appellants’ post-conviction petitions are governed by Tennessee’s Post-Conviction

Procedure Act. See Tenn. Code Ann. §§ 40-30-101 to -122. To obtain post-conviction relief, an

appellant must show that his or her conviction or sentence is void or voidable because of the

abridgment of a constitutional right. See Tenn. Code Ann. § 40-30-103. The appellant must

establish the factual allegations contained in his petition by clear and convincing evidence. See

Tenn. Code Ann. § 40-30-110(2)(f). Evidence is clear and convincing when there is no serious or

substantial doubt about the accuracy of the conclusions drawn from the evidence. Hicks v. State,

983 S.W.2d 240, 245 (Tenn. Crim. App.1998).

Once the trial court rules on the petition, its findings of fact are conclusive on appeal unless

the evidence preponderates against them. State v. Nichols, 90 S.W.3d 576, 586 (Tenn. 2002) (citing

State v. Burns, 6 S.W.3d 453, 461 (Tenn.1999)); Cooper v. State, 849 S.W.2d 744, 746 (Tenn.

1993). An appellant has the burden of establishing that the evidence preponderates against the trial

court's findings. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). This Court may not re-weigh

or reevaluate the evidence or substitute its inferences for those drawn by the trial court. Nichols, 90

S.W.3d at 586. Furthermore, the credibility of the witnesses and the weight and value to be afforded

their testimony are questions to be resolved by the trial court. Bates v. State, 973 S.W.2d 615, 631

(Tenn. Crim. App. 1997).

However, claims of ineffective assistance of counsel are regarded as mixed questions of law

and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); Burns, 6 S.W.3d at 461. As

such, the trial court’s findings of fact underlying a claim of ineffective assistance of counsel are

reviewed under a de novo standard, accompanied by a presumption that the findings are correct

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unless the preponderance of the evidence is otherwise. See Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001) (citing Tenn. R. App. P. 13(d)). A trial court’s conclusions of law, such as whether

counsel’s performance was deficient or whether that deficiency was prejudicial, are reviewed under

a de novo standard, with no presumption of correctness. Id.

Claims of Ineffective Assistance of Counsel

The Sixth Amendment provides, in pertinent part, that, “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.

amend. VI. This right to counsel is “‘so fundamental and essential to a fair trial, and so, to due

process of law, that it is made obligatory upon the States by the Fourteenth Amendment.’” Gideon

v. Wainwright, 372 U.S. 335, 340 (1963) (quoting Betts v. Brady, 316 U.S. 455, 465 (1942)).

Inherent in the right to counsel is the right to effective assistance of counsel. Cuyler v. Sullivan, 446

U.S. 335, 344 (1980). “The benchmark for judging any claim of ineffectiveness must be whether

counsel's conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686

(1984); see Combs v. Coyle, 205 F.3d 269, 277 (6th Cir. 2000).

The Supreme Court has adopted a two-prong test to evaluate a claim of ineffectiveness:

First, the defendant must show that counsel's performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687. The performance prong of the Strickland test requires a showing that

counsel's representation fell below an objective standard of reasonableness, or “outside the wide

range of professionally competent assistance.” Id. at 690. “Judicial scrutiny of performance is highly

deferential, and ‘[a] fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective at the time.’” Combs, 205 F.3d at

278 (quoting Strickland, 466 U.S. at 689).

Upon reviewing claims of ineffective assistance of counsel, the court “must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional assistance;

that is, the defendant must overcome the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’” Strickland, 466 U .S. at 689. Additionally, courts

should defer to trial strategy or tactical choices if they are informed ones based upon adequate

preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a particular strategy or

tactical decision failed does not by itself establish ineffective assistance of counsel. Goad v. State,

938 S.W.2d 363, 369 (Tenn. 1996). Finally, we note that criminal defendants are not entitled to

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perfect representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d

793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective assistance

of counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally

compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S.

648, 655 n. 38 (1984)). Notwithstanding, we recognize that “[o]ur duty to search for constitutional

[deficiencies] with painstaking care is never more exacting than it is in a capital case .” Id. at 785.

If the appellant shows that counsel's representation fell below a reasonable standard, then he

or she must satisfy the prejudice prong of the Strickland test by demonstrating “there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have been

different.” 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. In evaluating whether an appellant satisfies the prejudice prong,

a court must ask “whether counsel's deficient performance renders the result of the trial unreliable

or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citing

Strickland, 466 U.S. at 687). In other words, an appellant must establish that the deficiency of

counsel was of such a degree that it deprived the appellant of a fair trial and called into question the

reliability of the outcome. Nichols, 90 S.W.3d at 587. That is, the evidence stemming from the

failure to prepare a sound defense or to present witnesses must be significant, but it does not

necessarily follow that the trial would have otherwise resulted in an acquittal. Nealy v. Cabana, 764

F.2d 1173, 1178-79 (5th Cir. 1985). “A reasonable probability of being found guilty of a lesser

charge, or a shorter sentence, satisfies the second prong in Strickland.” State v. Zimmerman, 823

S.W.2d 220, 225 (Tenn. Crim. App. 1991). Moreover, when challenging a death sentence, an

appellant must show that “‘there is a reasonable probability that, absent the errors, the sentencer .

. . would have concluded that the balance of the aggravating and mitigating circumstances did not

warrant death.’” Henley, 960 S.W.2d at 579-80 (quoting Strickland, 466 U.S. at 695). If either

element of the claim has not been established, the reviewing court need not address the other

element. Strickland, 466 U.S. at 697.

Appellant Quintero’s Issues

I. Claims Regarding Counsel’s Representation

A. Pretrial Assistance

Quintero initially contends that his attorneys failed “to maintain a workload level which

would accommodate the preparation needs for a trial on a capital offense.” He argues that the

caseload demands and budgetary restraints of the Public Defender’s Office at that time effectively

prevented his attorneys from providing effective assistance. Attorney Weems candidly testified

during the hearing that his office was overworked and underbudgeted. However, aside from general

assertions that his attorneys were “merely warm bodies in the courtroom during trial,” the alleged

resulting prejudice from counsel’s caseload at the time is intertwined with several other instances

of ineffectiveness claimed by Quintero. Quintero has not demonstrated how counsel’s workload,

considered alone, prejudiced the outcome. Though Quintero takes exception to the State’s comments

that the length of the trial has a bearing upon the issue, this Court concludes that trial counsel did

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more than merely “shoot from the hip,” as stated in Quintero’s brief. A review of the extensive

record reveals that counsel was intimately involved, both before and during, this six week trial.

Similarly, Quintero asserts that his attorneys did not adequately communicate with him

before trial, thereby preventing him from participating in his defense. Testimony from the post-

conviction hearing revealed that counsel met in person with Quintero at least two times prior to trial

and talked to him on the telephone numerous times despite the office policy against accepting collect

calls due to budget concerns. Quintero contends that this limited pretrial communication does not

require a showing of prejudice. This Court disagrees. Quintero has failed to show how the nature

and extent of the pretrial communication, standing alone, had any bearing on the outcome of the trial.

However, similar to his claim regarding counsel’s workload, Quintero offers specific instances of

ineffective assistance in support thereof. The Court will now address the specific instances of

ineffective pretrial assistance alleged by Quintero.

1. Kathleen Bernhardt and Celerino Quintero

Quintero claims counsel’s inadequate investigation failed to produce two key defense

witnesses: Kathleen Bernhardt and Celerino Quintero. According to Quintero, Bernhardt’s testimony

could have supported mitigation during sentencing “as it demonstrated that under similar

circumstances, Quintero specifically chose to leave a victim tied up and unharmed rather than killing

her.” However, her testimony would not have been beneficial at the guilt phase, even had counsel

known about her, because the defense theory was that the state could not prove Quintero’s

involvement in the murders solely on circumstantial evidence. The similarities between the two

criminal episodes would have been more detrimental than helpful to Quintero’s defense. Similarly,

highlighting Quintero’s prior convictions at trial would have been a dubious decision. Furthermore,

trial counsel acknowledged that the state could simply have argued during sentencing that because

Quintero was apprehended after his encounter with Bernhardt, he decided not to make the same

mistake again. Although the trial court concluded that Bernhardt’s testimony would only have been

slightly beneficial to Quintero, it otherwise concluded there was no resulting prejudice due to

counsel’s failure to call her as a witness. Likewise, we find no resulting prejudice in failing to call

Bernhardt as a witness during either phase of the trial.

The deposition of Quintero’s father is summarized earlier in this opinion. Quintero contends

his attorneys should have interviewed his father prior to trial and ultimately called him to testify as

an alibi witness. However, Mr. Quintero testified that his son was adamant about him not getting

involved in the trial, and he stated that he “more likely than not” would not have talked to any

lawyers about his alleged involvement in the escape. Similarly, Mr. Quintero admitted that he was

distrustful of lawyers and the legal system because of his previous experiences.

Mr. Quintero communicated with his son while the appellant was in custody pending trial,

however, he stated he did not know the actual trial date until after the trial concluded. He testified

that he did not tell any member of his family about his alleged involvement until years later, despite

the fact that other members of the family testified at trial on Quintero’s behalf. And although Mr.

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Quintero commented on the closeness of his family, he did not have any explanation why some of

his family, who attended the trial, did not inform him of the trial date. This Court, as did the trial

court, finds Mr. Quintero’s “deposition lacks the ring of truth with regard to the fact that he did not

know when [his son’s] trial was held.” Especially since Quintero cooperated with the mitigation

specialist who interviewed members of his family who actually attended the trial.

Quintero’s complaint about his attorneys investigation in this respect is intertwined with his

alleged alibi. However, Quintero did not come forward with information about his alleged alibi until

the filing of the instant post-conviction petition. During the post-conviction hearing, Quintero

testified that he did not inform his trial counsel about his version of the facts because he “wanted to

hear what they had to say.” He also testified that he did not speak of his father as an alleged alibi

witness because “they got me to a point I just didn’t trust them anymore. I didn’t have no faith in

them, the system.” When he was questioned during the hearing whether he made a conscious

decision not to discuss his alleged alibi, Quintero responded, “well, I guess - I guess it boils down

to that, yeah. A stupid decision, I guess, but it was - it was conscious, I guess.” Mr. Quintero

referred to this same distrust of “the system” and suggested that he would not have cooperated even

had he been approached by the defense team.

We cannot conclude, based upon a comprehensive reading of the testimony of Quintero and

his father in light of the entire record, that counsel rendered ineffective assistance in failing to call

Mr. Quintero as a defense witness. Quintero cooperated with the defense team in providing

information about his background. It is evident from the record that Quintero did not want his father

to worry about his trial, presumably because of his father’s health condition at the time. However,

as the trial court commented, “in view of the fact that his father was the main alibi witness, it strains

credulity to believe that this alibi was not mentioned.” Quintero’s claim of an alibi is intertwined

throughout his issues, and this Court will further discuss the matter later in the opinion. In respect

to the identification of defense witnesses, though, the Court does not conclude that counsel was

ineffective.

2. Ben Spencer

Next, Quintero contends trial counsel was ineffective for failing to investigate and discover

the name change of the prison barber. Trial counsel remembered hearing laughter after Ben Spencer

testified about his name change. Further, one of the jurors who testified at the hearing stated he did

not give Spencer's testimony much credibility because of his name change. We do not find that

counsel's conduct was deficient in this respect. We agree with the State that counsel had no reason

to check civil court records in another state for possible name changes of witnesses. Accordingly,

counsel's performance in this respect did not fall below objective standard of reasonableness which

is demanded of attorneys.

3. Zachary Pallay

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During trial, Zachary Pallay testified about his criminal record, including his prior arrests.

976 S.W.2d at 148. After Pallay left the witness stand, defense counsel was informed that Pallay

may not have been completely forthcoming about his previous arrests. However, the trial court did

not allow counsel to introduce into evidence certified copies of three arrest warrants issued against

Pallay. The appellants were given the opportunity to subpoena Pallay and cross-examine him about

the three arrests, but they neglected to do so. On direct appeal, the appellants were deemed to have

waived any error because they did not avail themselves of the available remedy under Tennessee

Rule of Criminal Procedure 608(b). 976 S.W.2d at 149.

Quintero now argues that trial counsel was ineffective for failing to properly investigate

Pallay’s criminal history for impeachment purposes. The State contends Quintero did not carry his

burden of proof on this ground because he failed to introduce copies of the arrest warrants at issue.

Quintero, however, counters that the trial transcript demonstrates, by clear and convincing evidence,

that trial counsel failed to thoroughly investigate Pallay’s arrest history. As noted above, the trial

court did not allow trial counsel to introduce extrinsic evidence of the arrests. The record, therefore,

does not contain copies of the actual warrants. The trial attorneys apparently had copies of the

warrants in their possession. However, copies of these warrants were not introduced into evidence

at the post-conviction proceeding. Quintero had ample opportunity to introduce the warrants.

Moreover, Pallay testified at the hearing but Quintero apparently chose not to question him about

the truthfulness of his trial testimony. Hall did question Pallay about his previous felony convictions

and Pallay reaffirmed his trial testimony that prior to 1988 he had only been convicted of one felony,

armed robbery.

We agree with the State that Quintero has failed to carry his burden of proof on this issue.

When questioned at trial if he had any other arrests since he was released from prison on his robbery

conviction, Pallay testified that he could not recall at that time whether or not he had been arrested.

Although Quintero asserts that Pallay lied during his testimony at trial, Quintero did not attempt to

elicit at the hearing below any explanation from Pallay about his trial testimony in this respect.

Notwithstanding, the Court finds that the result of the proceeding would not have been different had

Pallay testified in front of the jury about his other alleged arrests. The jury already knew Pallay was

a convicted felon and there is no suggestion that Pallay was ever convicted of criminal activity based

upon the three arrest warrants. This alleged ground of ineffective assistance of counsel is, therefore,

without merit.

4. Defense Theory

Quintero argues that trial counsel failed to formulate a comprehensive defense theory. Trial

counsel testified that their trial strategy was to highlight the State’s inability to prove beyond a

reasonable doubt, based upon purely circumstantial evidence, that Quintero was involved in the

commission of the murders. We are reminded that “[j]udicial scrutiny of [counsel’s] performance

is highly deferential, and ‘[a] fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's perspective at the time.’” Combs,

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205 F.3d at 278 (quoting Strickland, 466 U.S. at 689). Moreover, we must defer to counsel’s trial

strategy and tactical choices if they are informed ones based upon adequate preparation. Hellard,

629 S.W.2d at 9. The fact that a particular strategy or tactical decision failed does not by itself

establish ineffective assistance of counsel. Goad, 938 S.W.2d at 369. Quintero’s claim regarding

a comprehensive defense centers on counsel’s failure to discover the alleged alibi. We have already

concluded that trial counsel was not ineffective in failing to call Ms. Bernhardt or Quintero’s father

as witnesses. And as discussed below, trial counsel did not render ineffective assistance with regard

to Quintero’s right to testify. Counsel acknowledged they had open access to all of the State’s files.

Based upon our complete review of the record, and in light of the State’s reliance upon

circumstantial evidence in its case in chief, counsel’s defense theory was reasonable.

5. Right to Testify and Alibi

Quintero claims his attorneys failed to inform him of his right to testify. As noted above,

Quintero testified at the post-conviction hearing that he was surprised when his attorneys rested their

case without calling him to the stand. He stated he wanted to testify at trial, but according to

Quintero his attorneys made a unilateral decision to do otherwise. Though counsel was not

specifically questioned during the hearing whether they discussed with Quintero his right to testify,

the evidence clearly demonstrates that Quintero was advised against testifying at co-defendant

Blanton’s trial. Moreover, having previously been involved in several other criminal trials, Quintero

was no stranger to the criminal justice system. In fact, Quintero admitted that he testified on his own

behalf in his previous cases.

Quintero contends that his testimony at trial would have supported his alibi defense, and he

offered his version of the facts and circumstances surrounding his escape from prison in Kentucky.

As such, he argues that, but for counsel’s deficiency in this respect, the result of his trial would have

been different. Although the post-conviction court found Quintero’s testimony regarding his right

to testify incredible, it nonetheless conducted a harmless error analysis on the issue after concluding

that the record did not affirmatively demonstrate Quintero waived his right to testify. See Momon

v. State, 18 S.W.3d 152 (Tenn. 1999).

As the post-conviction court correctly recognized, a criminal defendant has a fundamental

right to testify at his own trial. See, Momon, 18 S.W.3d at 157. This right may only be waived

personally by the defendant. Id. at 161. However, a waiver of this right will not be presumed from

a silent record. Id. at 162. To ensure that a record of the trial proceedings affirmatively

demonstrates a defendant personally waived his fundamental right, our supreme court in Momon

established procedures which should be followed in future cases. Id. However, the court specifically

stated that the procedures adopted did not amount to a new constitutional rule of law requiring

retroactive application. Id. at 163.

Nevertheless, if a defendant can prove in the post-conviction context that trial counsel denied

him his right to testify, there is constitutional error. Thus, the ultimate question for us remains

whether counsel was ineffective in failing to advise Quintero of his right to testify. See Mario

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Deangalo Thomas v. State, No. W2004-01704-CCA-R3-PC, 2005 WL 1669898 at *3-4 (Tenn. Crim.

App., July 18, 2005), perm. to app. denied, (Tenn. Dec. 5, 2005); Maria Maclin v. State, No. W2003-

02667-CCA-R3-PC, 2004 WL 2715342 at *10 (Tenn. Crim. App., Nov. 24, 2004), perm. to app.

denied, (Tenn., May 23, 2005) (“prior to the supreme court's holding in Momon, an appellant's claim

that his counsel prevented him from testifying in his own behalf was treated like any other ground

asserted for a claim of ineffective assistance of counsel”).

Prior to conducting a harmless error analysis, the trial court made the following statements

regarding Quintero’s claim:

Due to an absence of proof from the State, this Court is left with only the testimony

of Appellant, which this Court does not find to be credible. He testified that he had

been a defendant in at least three prior criminal trials and, in those cases and this one,

none of his counsel ever advised him that he had the right to testify. In his Kentucky

cases, Appellant stated that his trial counsel simply told him to take the witness stand

without advance notice [or] preparation. It simply defies credibility that this

happened on all three occasions. Perhaps once, but certainly not all three times. In

his Tennessee trial, Appellant would have this Court believe that his trial counsel

rested his case and that Appellant was not aware of it. Even someone who has never

been in a courtroom knows what “The Defense Rests” means. Appellant would have

this Court further believe that he was in a stupor induced by cold medication and did

not realize what was going on. This, in spite of the fact that both defendants had to

be cautioned more than once during the trial for excessive talking. Evidence was

introduced at the Post-Conviction hearing that Appellant and his trial counsel

discussed Appellant’s right not to testify during the separate trial of Blanton.

Obviously, the right NOT to testify is distinct from the right TO testify but we do

know that the subject was discussed. The opinion of the Court of Criminal Appeals

in the Blanton case supports that Appellant elected not to testify. State v. James

Blanton, No. 01C01-9307-CC-00218, 1996 WL 219609 (Tenn. Crim. App., Apr. 30,

1996). Given this information, it is simply not believable that the subject of

Appellant testifying was never discussed. This Court does not find Appellant’s

testimony in this regard to be credible.

Given our review of the issue, we conclude that Quintero has not met his burden of proof by

clear and convincing evidence. Evidence is clear and convincing when there is no serious or

substantial doubt about the accuracy of the conclusions drawn from the evidence. Hicks, 983

S.W.2d at 245. Quintero claims his trial attorneys never informed him of his right to testify.

However, Quintero was familiar with trial proceedings in criminal cases. Indeed, as he testified, he

“had pretty good experience - or a lot of experience - in court in the criminal process.” Furthermore,

Quintero testified in at least three previous trials, and he made the decision not to testify at Blanton’s

trial. The post-conviction court found Quintero’s testimony on this issue to be incredible. We agree.

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Quintero suggests that his testimony would have supported his contention that he was not in

the area on the date of the murders. Again, the court below found it hard to believe Quintero would

have waited until he filed the instant petition to reveal his version of the facts. We agree. During

the post-conviction hearing, Quintero testified he made a “conscious decision” not to inform trial

counsel about his alibi. He stated that he did not tell his verison of the facts to his attorneys because

he “wanted to hear what they had to say.” In considering whether he has met his burden by clear and

convincing evidence such that there is no serious or substantial doubt about the accuracy of the

conclusions drawn therefrom, we must look at the entire picture.

Quintero’s claim that counsel did not inform him of the right to testify necessarily stems from

his desire now at this stage of the proceeding to assert his version of the events surrounding the

crimes in this case. The trial court repeatedly emphasized its belief that Quintero manufactured his

story after the fact. Quintero acknowledged that he read the transcript of the trial, and he had the

benefit of reading the summary of the evidence by this Court and the supreme court prior to filing

his petition. The inference drawn from the combination of Quintero’s experience in criminal trials

and his own statement that he made a conscious decision not to tell his trial attorneys about the

alleged alibi leaves this Court with a serious and substantial doubt about the accuracy of the

Quintero’s post-conviction testimony.

Quintero retains the burden of showing prejudice. However, because trial counsel was not

specifically questioned about any discussions they had with Quintero concerning his decision, the

record otherwise remains silent on the matter. The trial court thus conducted a harmless analysis,

and we have also decided to engage in one. See Mario Deangalo Thomas, 2005 WL 1669898 at *4.

See Terrance B. Smith v. State, No. W2004-2366-CCA-R3-PC, 2005 WL 2493475 at *7-9 (Tenn.

Crim. App., Oct. 7, 2005), perm. to app. denied, (Tenn., Mar. 27, 2006). Though not exclusive, the

list of factors which have typically been considered by the courts in this type of analysis are: (1) the

importance of the defendant's testimony; (2) the cumulative nature of the testimony; (3) the presence

or absence of evidence corroborating or contradicting the defendant on material points; and (4) the

overall strength of the prosecution's case.

Presumably Quintero’s testimony would have been important to his defense. However, his

criminal record would have been introduced into evidence. Although the jury was already aware he

escaped from prison, they would have learned that he also escaped from prison on a previous

occasion. Moreover, Quintero’s story would have been contradicted in an important respect by

Pallay. Quintero testified that Pallay drove him and Hall to Nashville to meet his father. However,

Pallay testified that he did not encounter Quintero during that period of time and that he had never

seen Hall prior to the trial.

The post-conviction court noted that Quintero’s testimony would further have been directly

contradicted by other substantial evidence. During his proffer, Quintero testified he spent Saturday

night, June 18, 1988, alone in the woods, and after he awoke he met up with Hall Sunday morning,

June 19, 1988. He testified the two of them stayed hidden in the woods all day Sunday until that

evening when they supposedly met with Pallay. However, telephone calls were placed from the

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Harris home to the home of Quintero’s relatives in Texas that Sunday morning. Moreover, Hall’s

fingerprints were found at the Crawford residence, which was not burglarized until after 2:00 pm that

Sunday. Hall testified at the post-conviction hearing that he did not run into Quintero until sometime

around dark Sunday night. Quintero also he said he was wearing gloves on Sunday when he hid the

.22 rifle he stole from the Foster home in a drainpipe near where he met Hall that morning. The only

gloves reported missing were from the Crawford home. The glove found at the Vester’s matched

the one stolen from the Crawford home. Because we have already found that trial counsel was not

ineffective in calling Mr. Quintero as a witness, Quintero’s testimony would not have been

corroborated by his father.

Although circumstantial, the evidence in this case has already been found to be sufficient.

When considered in light of the entire record, any error regarding counsel’s failure to advise

Quintero of his right to testify is harmless. We cannot review the nature of Quintero’s proffered trial

testimony without taking into account his unreasonable explanation for not disclosing the

information at an earlier date. Quintero testified he did not know the time of death, despite sitting

through the entire six week trial and admitting that he listened to the testimony of the fisherman who

heard gunshots the night of June 20, 1988, and knew the evidence showed that a newspaper dated

June 20, 1988, was found inside the Vesters’ home. Quintero was questioned on cross-examination

during the hearing: “And that didn’t strike you as, hey, wait a minute, I wasn’t there?” He did not

respond.

As our supreme court recognized in Momon,

[a] denial of the defendant’s right to testify does not in all cases render a criminal

trial fundamentally unfair or call into question the reliability of the trial as a vehicle

for determining guilt or innocence. Such an error involves the exclusion of testimony

which is evidence that can be “quantitatively assessed in the context of other

evidence presented in order to determine whether its admission was harmless beyond

a reasonable doubt.”

18 S.W.3d at 166 (internal citations omitted). The Court stated that a harmless error analysis “strikes

the appropriate balance between the judicial system’s interest in obtaining reliable results and the

system’s competing interest in having litigation end at some point.” Id. at 167. It emphasized that

“the goal of harmless error analysis is to identify the actual basis on which the jury rested its

verdict.” Id. at 168. The Court concludes that Quintero did not carry his burden of proof on this

claim. We otherwise conclude that any error in this respect was harmless beyond a reasonable doubt.

As we commented above, we have a serious and substantial doubt about the veracity of Quintero’s

post-conviction testimony. Likewise, given the existence of the other contradictory evidence,

Quintero’s manufactured alibi would have been apparent to the jury. We do not believe the jury

would have given much weight to Quintero’s version of the facts. This claim is without merit.

6. Pretrial Motions

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Next, Quintero complains about counsel’s failure to file necessary pretrial motions.

Specifically, he argues counsel was ineffective for failing to file a motion for a bill of particulars

regarding the time of death, a motion for funds for an investigator, and a motion for funds for an

expert in fingerprint analysis. Regarding the bill of particulars, Quintero asserts it was necessary for

counsel to pinpoint the State’s theory on time of death in order to present an alibi defense. It is clear

from the evidence introduced at the hearing below that both appellants were provided an open-file

policy by the prosecution. Moreover, Attorney Roberts testified that neither defense team was

surprised at trial by the testimony of the fisherman who heard the gunshots the night of June 20,

1988. Although Quintero’s trial counsel was not specifically questioned about their knowledge of

the State’s theory on time of death, the evidence otherwise demonstrates that counsel was aware of

the fishermen’s statements. As noted previously, Quintero admitted hearing this testimony during

trial, yet he failed to alert counsel to any possible alibi. We find no deficiency on counsel’s part

regarding this issue.

Trial counsel testified that their office received funding for an investigator. However,

because of their caseload at that time, the office budgeted the funding for an additional attorney

instead of hiring an investigator. Counsel stated that his requests for funds to hire investigators in

previous capital cases were denied. Regardless, Quintero has failed to demonstrate prejudice. Aside

from the testimony of Quintero’s father and Ms. Bernhardt, Quintero failed to present evidence of

what an investigator would have discovered. Trial counsel’s performance regarding Mr. Quintero

and Ms. Bernhardt is discussed above. This Court concludes that Quintero has failed to carry his

burden of proof on this claim. We also conclude that Quintero has failed to establish prejudice

regarding the request for funding of a fingerprint expert. If the claim is based on a failure to properly

investigate, then the evidence or witness must be produced so that the post-conviction court can

properly evaluate the evidence or witness. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.

App. 1990). “It is elementary that neither a trial judge nor an appellate court can speculate or guess

on the question of whether further investigation would have revealed a material witness or what a

witness's testimony might have been if introduced by defense counsel.” Id. Quintero did not

produce a fingerprint expert at the post-conviction hearing to call into doubt the testimony of the

State’s expert at trial.

Finally, Quintero contends trial counsel was ineffective by failing to file appropriate pretrial

motions challenging the prosecutor’s discretion in seeking the death penalty, limiting the State’s

proof at sentencing to specific aggravating circumstances, dismissing the felony murder aggravating

circumstance, and challenging the constitutionality of the death penalty statute. However, Quintero

has failed to demonstrate prejudice, as this Court and the supreme court addressed the substantive

merit of these claims on appeal and found them to be without merit. See generally 976 S.W.2d 121.

B. Trial Assistance

Quintero alleges numerous instances during trial where counsel failed to voice necessary

objections, failed to adequately cross-examine witnesses, failed to make proper argument, failed to

present sufficient mitigation and failed to conduct an adequate voir dire. We are reminded that we

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“must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland, 466

U.S. at 689. Both the post-conviction court and the State on appeal correctly observe that counsel

was not questioned about their conduct regarding the majority of the allegations, and further, that

no evidence was otherwise introduced to support his burden of proof. Quintero is required to

establish the factual allegations contained in his petition by clear and convincing evidence. See

Tenn. Code Ann. § 40-30-110(2)(f). We will comment on each allegation in turn.

1. Witness Testimony and Introduction of Evidence

Quintero argues that trial counsel failed to object to testimony which identified his

fingerprints on some of the weapons and ammunition recovered. Counsel was not questioned why

he did not object to the testimony. Regardless, as we stated above, Quintero failed to introduce proof

which would have called into doubt the trial testimony in this respect. Similarly, we find no error

in counsel’s failure to question the testimony that heat would have destroyed any fingerprints on the

victims’ car despite the existence of Blanton’s prints on a beer can found inside the car in Memphis.

Counsel was not questioned about his examination of this witness and we must, therefore, presume

that his conduct was reasonable trial strategy.

Quintero contends that counsel did not adequately challenge the introduction of two guns

taken from the Foster house based on a break in the chain of custody. However, as Quintero

acknowledges in his brief, counsel did voice an objection regarding the chain of custody. The trial

court over

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