“It is true, as a general rule, that where there can be no further incrimination, there is no basis for the assertion of the privilege. We conclude that principle applies to cases in which the sentence has been fixed and the judgment of conviction has become final.”
How later courts described this case
- “It is true, as a general rule, that where there can be no further incrimination, there is no basis for the assertion of the privilege. We conclude that principle applies to cases in which the sentence has been fixed and the judgment of conviction has become final.”
- holding that counsel should not be measured by “20-20 hindsight”
- finding prosecutor’s statement “encouraging the jury to give the defendant the same consideration he had given his victims” improper
- stating that a petitioner cannot establish prejudice without showing “what the attorney would have discovered after ‘adequate’ investigation”
Written by the judges who cited it.
The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
April 25, 2000 Session
HAROLD WAYNE NICHOLS v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Hamilton County
Nos. 205863, 213883-213896 D. Kelly Thomas, Jr., Judge, By Designation
No. E1998-00562-CCA-R3-PD
January 19, 2001
The petitioner filed petitions for post-conviction relief for his conviction for first degree felony
murder and his sentence of death, as well as for a number of convictions for sexual attacks on four
additional victims. The bases of his complaints were that he had ineffective assistance of counsel
at both the guilt and punishment phases of his capital trial, as well as in the noncapital cases, two of
which were resolved by pleas of guilty. Specifically, he claimed that counsel failed to adequately
investigate and prepare his cases; failed to question the probable cause for his arrest; and failed to
question whether his confessions were “false.” He raised additional claims of ineffective assistance
of counsel and claims regarding the unconstitutionality of the imposition of capital punishment. The
post-conviction court denied the claims other than to order new sentencing hearings in the noncapital
cases. The petitioner then timely appealed the post-conviction court’s rulings, other than the
ordering of new sentencing hearings. We have carefully reviewed the record and, based upon our
review, we affirm the judgments of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and THOMAS T.
WOODALL , JJ., joined.
Ardena J. Garth, District Public Defender; Mary Ann Green, Assistant Public Defender; and Donald
E. Dawson, Post-Conviction Defender, for the appellant, Harold Wayne Nichols.
Paul G. Summers, Attorney General and Reporter; Marvin S. Blair, Assistant Attorney General;
William H. Cox, III, District Attorney General; C. Leland Davis, Assistant District Attorney
General; C. Caldwell Huckabay, Assistant District Attorney General; and Glenn R. Pruden, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The petitioner, Harold Wayne Nichols, appeals from the judgment entered in the Criminal
Court of Hamilton County denying post-conviction relief from his 1990 conviction for first degree
felony murder and sentence of death by electrocution, as well as convictions for aggravated rape and
first degree burglary resulting from the same facts. In addition, consolidated with the post-
conviction appeal in the capital case, is Nichols’s appeal from the judgments entered in the Criminal
Court of Hamilton County denying him post-conviction relief from his 1989 and 1990 convictions
of first degree burglary, aggravated rape, and larceny and sentences of imprisonment resulting from
separate proceedings stemming from a series of attacks against four other women, except for that
portion of the judgments requiring new sentencing hearings in the noncapital cases.
The sentence of death was affirmed on direct appeal to the Tennessee Supreme Court. See
State v. Nichols, 877 S.W.2d 722 (Tenn. 1994), cert. denied, 513 U.S. 1114, 115 S. Ct. 909, 130 L.
Ed. 2d 791 (1995). This court affirmed the judgments of the trial court in the noncapital cases tried
in State v. Harold Wayne Nichols, No. 03C01-9108-CR-00236, 1995 WL 755957 (Tenn. Crim. App.
Dec. 19, 1995). No application for permission to appeal to the Tennessee Supreme Court, pursuant
to Tennessee Rule of Appellate Procedure 11, was filed in these cases.
In his appeals, the petitioner raises the following issues:
I. Petitioner received ineffective assistance of counsel at
the guilt stage by (a) trial counsel’s failure to analyze
evidence demonstrating the petitioner’s confession was
unreliable and (b) counsel’s failure to investigate and
analyze evidence of the petitioner’s actual innocence;
II. Petitioner was denied the effective assistance of counsel
by the failure of his trial counsel to file a motion to
suppress his statements on the theory that the statements
were made during a period of illegal arrest;
III. Trial counsel failed to provide effective assistance of
counsel in the penalty phase;
IV. Petitioner was denied effective assistance of counsel by
the failure of his trial counsel to object to improper
argument and cross-examination by the prosecutor and
failure to raise prosecutorial misconduct in the motion
for a new trial or on appeal;
V. Petitioner’s counsel were ineffective for failing to
request jury instructions and for failing to object to the
trial court’s improper jury instructions;
VI. The findings of fact by the court below were clearly
erroneous;
-2-
VII. Counsel rendered ineffective assistance by failing to
raise at trial or on appeal that death by electrocution is
cruel and unusual punishment;
VIII. Trial and appellate counsel rendered ineffective
assistance by failing to argue in the trial court or on
appeal that requiring petitioner to turn over his
psychiatric expert’s rough notes, which included
statements made by petitioner to his psychiatric expert,
violated petitioner’s right to remain silent in violation of
the Fifth and Fourteenth Amendments to the United
States Constitution and Article I, section 9 of the
Tennessee Constitution;
IX. There was a “Kyles v. Whitley” accumulation of
prejudicial errors;
X. The sentence of death in the instant case must be set
aside as the imposition of death is unreliable and
violates the values recognized and protected by the
Eighth and Fourteenth Amendments to the Constitution
of the United States and Article I, section 16 of the
Tennessee Constitution; and
XI. The death sentence is unconstitutional, because it
infringes upon petitioner’s fundamental right to life, and
is not necessary to promote any compelling state
interest.
Because of the complexity of this matter resulting from consolidation of several petitions for
post-conviction relief encompassing a number of convictions, we will first detail the charges which
are under consideration in the combined petitions for post-conviction relief.1 They are as follows:
Victim and Offense Date of
Case No. Charged Offense Disposition Sentence
Karen Pulley First Degree Murder 9-30-88 Pled Guilty 12-14-90
No. 180573 Jury Sentence Death
Karen Pulley Aggravated Rape 9-30-88 Pled Guilty 12-14-90
1
The victims of the sexu al assaults, other than the v ictim wh o was also murd ered, will b e identified by initials
only.
-3-
No. 175423 5-1, 2-90 60 years
Karen Pulley First Degree Burglary 9-30-88 Pled Guilty 12-14-90
No. 175425 5-1, 2-90 15 years
P.G. First Degree Burglary 12-20-88 Jury Trial 12-13-90
No. 180535 Guilty 15 years
2-21-90
P.G. Petit Larceny 12-20-88 Jury Trial Merged into
No. 180536 Guilty 180535 by
2-21-90 court
P.G. Aggravated Rape 12-20-88 Jury Trial 12-13-90
No. 180537 Guilty 60 years
2-21-90
T.R. Aggravated Rape 12-27-88 Pled Guilty 12-13-90
No. 175495 9-13-89 40 years
T.R. First Degree Burglary 12-27-88 Pled Guilty 12-14-90
No. 175497 9-13-89 40 years
P.R. Aggravated Rape 1-3-89 Jury Trial 12-14-90
No. 175438 Guilty 60 years
1-11-90
P.R. Aggravated Rape 1-3-89 Jury Trial 12-14-90
No. 175440 Guilty 20 years
Reduced to
Assault w/Intent
to Commit
Aggravated Rape
1-11-90
P.R. First Degree Burglary 1-3-89 Jury Trial 12-14-90
No. 175492 Guilty 15 years
1-11-90
P.R. Aggravated Rape 1-3-89 Jury Trial 12-14-90
No. 178087 Guilty 60 years
1-11-90
-4-
S.T. Aggravated Rape 1-3-89 Pled Guilty 12-14-90
No. 175433 10-24-89 60 years
S.T. Grand Larceny 1-3-89 Pled Guilty 12-14-90
No. 175442 Reduced to Petit Larceny (to Petit Larceny) 6 years
S.T. First Degree Burglary 1-3-89 Pled Guilty 2-14-91
No. 175490 6 years
Additionally, the petitioner entered pleas of guilty to rape or attempted rape charges as to five
more victims, T.M, T.H., D.L., A.P., and C.B. None of these pleas of guilty were the subject of
petitions for post-conviction relief. However, since the entry of a guilty plea in at least one of these
cases was the partial basis for a claim of ineffective assistance of counsel, these guilty pleas are
relevant to our consideration.
The petitioner’s original pro se petition for post-conviction relief in the capital case was filed
on April 20, 1995, and an amended petition was later filed by counsel. On April 25, 1995, the Public
Defender for Hamilton County was appointed to represent the petitioner. Attorney John Brooks was
appointed as co-counsel on December 4, 1995. On May 13, 1996, Judge Douglas Meyer recused
himself from the case and, by order of the Tennessee Supreme Court, Judge D. Kelly Thomas was
designated to preside over the post-conviction hearing. On October 3, 1996, Attorney Brooks was
allowed to withdraw and the Office of the Post-Conviction Defender was appointed as co-counsel.
In the noncapital cases, the petitioner filed pro se petitions for post-conviction relief on
December 18, 1996. Again, Judge D. Kelly Thomas was designated to hear the matters upon the
recusal of Judge Douglas Meyer. Judge Thomas appointed the Hamilton County Public Defender
and the Office of the Post-Conviction Defender to represent the petitioner. An amended post-
conviction petition was filed on February 24, 1997.
A post-conviction hearing on the petitions filed in both the capital and noncapital cases was
held over eight days during June and December of 1997, concluding on December 16, 1997. On
March 18, 1998, the court, by written order, denied any relief on the post-conviction petition filed
in the capital case. On the same date, also by written order, the court denied relief as to the
noncapital cases with the exception of granting the petitioner a resentencing hearing in each of these
cases.
Notices of appeal in the capital and noncapital post-conviction cases were filed on April 17,
1998. In the noncapital cases, the petitioner’s instant appeal is only from the denial of post-
conviction relief from his convictions, not from the order granting him resentencing hearings.
An overview of the facts surrounding the petitioner’s various convictions may prove helpful
in view of the complexity of the matters under review. These consolidated cases involve fifteen
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judgments entered as a result of trials or guilty pleas involving five victims. The petitioner pled
guilty to the first degree murder of Karen Pulley, and a jury sentenced him to death. As to the
noncapital offenses charged, the petitioner also pled guilty to the aggravated rape of Karen Pulley
and first degree burglary of her residence, and to rape and other offenses against T. R. and S.T. The
petitioner was convicted following jury trials in the P.G. and P.R. matters The remaining charges
covered by a post-conviction petition were resolved by pleas of guilty. The petitioner received
sentences totaling 647 years in the noncapital cases.
In addition to the offenses at issue in this post-conviction appeal, the petitioner was charged
with and pled guilty to offenses involving the rape or attempted rape of five other victims: T.H.,
D.L., C.B., T.M., and A.P. Pleas of guilty were entered in these cases after the petitioner’s capital
murder trial, and no appeals were taken. Throughout the proceedings involving all of the above-
noted offenses at trial and on appeal, the petitioner was represented by the same two appointed
counsel, against whom he has made claims of ineffective assistance of counsel.
Senior trial counsel appointed by the trial court was a 1966 graduate of Vanderbilt University
and a 1969 graduate of Yale Law School. He was a law clerk for a United States District Court
judge, an attorney with the Civil Rights Division of the Justice Department for three years, and an
Assistant United States Attorney for three years. Previously, he had been counsel in two capital
cases, and his practice consisted of ten percent criminal work and ninety percent civil work. He was
the author of the voir dire section of the Tennessee Association of Criminal Defense Lawyers
(“TACDL”) Death Penalty Manual.
Junior trial counsel graduated from George Mason University in 1981 and from the
University of Virginia Law School in 1984. She then went into private practice in Chattanooga. She
had previously been involved in one capital case, in which the defendant pled guilty and was
sentenced to life imprisonment. At the time she was appointed to represent the petitioner, her
percent of criminal practice was “about 40 percent, sometimes as high as 60 or 70.”
Junior trial counsel was a member of both the National Association of Criminal Defense
Lawyers and the TACDL. She was on the board of directors of the TACDL in 1989 and had been
a member of the organization for a number of years, holding various offices. She had been the head
of their continuing legal education program for a year. She had attended a number of TACDL
seminars and had presented a Tennessee criminal law update at “one or two” seminars. Before
representing the petitioner, she had attended at least one TACDL capital case seminar, as well as a
capital case seminar of the National Association of Criminal Defense Lawyers. Additionally, she
had attended criminal seminars presented by the Chattanooga Bar Association.
According to testimony, as well as an exhibit introduced during the post-conviction hearing,
the combined hours billed by trial counsel for the matters in which they represented the petitioner
were as follows:
1,386.80 Out-of-court hours in the Karen Pulley case
-6-
259.75 In-court hours in the Karen Pulley case
654.50 Out-of-court hours in the rape cases
29.25 In-court hours in the rape cases
According to counsel, the 2,330.30 hours billed were less than the actual combined hours
spent on the various matters, but the total was reduced to avoid duplicative billings. Additionally,
according to counsel, the 289 in-court hours “were always” with the petitioner present and usually
included a meeting with the petitioner in the court anteroom. Further, trial counsel spent “at least”
69.75 hours meeting with the petitioner in the jail.
The investigator retained by trial counsel was Michael Cohan, who had been a self-employed
private investigator since 1986. He has a bachelor’s degree in criminal justice and had been
employed in “one form of police work or another” during most of the years since 1969. For four
years, he had been a military police officer and was then employed for two years as a police officer
by the University of Tennessee. Next, he was a Metro narcotics officer in Knoxville for about five
years and then was the assistant regional director for investigations for the Department of Human
Services Welfare Fraud Division for approximately five years. He left that position in 1986 to
become a private investigator. According to his time records, he spent fifty-one hours conferring
with trial counsel and met with the petitioner on more than one occasion, although the records
showed only one six-hour meeting. He recorded 163 hours locating and interviewing witnesses. He
had previously been involved in several capital cases but was unable to say exactly how many.
The supreme court’s opinion on appeal of the petitioner’s death sentence provides the
following synopsis of the evidence presented during the sentencing phase of petitioner’s capital
murder trial:
The proof showed that on the night of September 30, 1988, the
defendant broke into the house where the 21-year-old-victim, Karen
Pulley, lived with two roommates in the Brainerd area of
Chattanooga, Tennessee. After finding Pulley home alone in her
upstairs bedroom, the defendant tore her undergarments from her and
violently raped her. Because of her resistance during the rape, he
forcibly struck her at least twice in the head with a two-by-four he
had picked up after entering the house. After the rape, the defendant,
while still struggling with the victim, struck her again several times
with great force in the head with the two-by-four. The next morning,
one of Karen Pulley's roommates discovered her alive and lying in a
pool of blood on the floor next to her bed. Pulley died the next day.
Three months after the rape and murder, a Chattanooga police
detective questioned the defendant about Pulley's murder while he
was in the custody of the East Ridge police department on unrelated
charges. It was at this point that the defendant confessed to the
-7-
crime. This videotaped confession provided the only link between
the defendant and the Pulley rape and murder.
The evidence showed that, until his arrest in January 1989, the
defendant roamed the city at night and, when "energized," relentlessly
searched for vulnerable female victims. At the time of trial, the
defendant had been convicted on five charges of aggravated rape
involving four other Chattanooga women. These rapes had occurred
in December 1988 and January 1989, within three months after
Pulley's rape and murder. The convictions presented to the jury were
as follows:
The defendant was indicted for feloniously engaging in sexual
penetration of T.R. on December 27, 1988, by the use of
force or coercion while the defendant was armed with a
weapon--a cord. The defendant pled guilty to the offense of
aggravated rape.
The defendant was indicted for feloniously engaging in sexual
penetration--anal intercourse--with S.T. on the 3rd day of
January, 1989, by the use of force or coercion while he, the
defendant, was armed with a weapon--a pistol. The defendant
pled guilty to aggravated rape.
The defendant was indicted for feloniously engaging in sexual
penetration--fellatio--with [P.R.] on January 3, 1989, thereby
causing personal injury to her. The defendant was also
indicted for feloniously engaging in sexual
penetration--vaginal intercourse--with [P.R.] on January 3,
1989. The defendant pled not guilty and the jury found the
defendant guilty of aggravated rape in each case.
The defendant was indicted for feloniously engaging in sexual
penetration, vaginal intercourse, with [P.G.] on December 21,
1988, by the use of force or coercion while he, the defendant,
was armed with a weapon--a knife. The defendant pled not
guilty and a jury convicted the defendant of aggravated rape.
The primary factors in mitigation presented by the defense were the
defendant's cooperation with the police and the psychological effects
of his childhood. Several persons who knew the defendant testified
to his good character and passive nature.
-8-
The defendant also took the stand and testified about his life and the
violent crimes he had committed. After his mother died of breast
cancer when he was ten years old, he and his older sister were placed
in an orphanage for six years by his father, who was apparently
emotionally abusive, at least to the defendant's older sister. In 1976,
just as he was about to be adopted, he was returned to his father. In
1984 he pled guilty to attempted rape, was sentenced to five years in
prison and served eighteen months. Thereafter, he violated parole
and served an additional nine months. He was married in 1986. At
the time of the killing, he was employed by Godfather's Pizza as a
first assistant manager.
Defendant testified that when he committed these violent criminal
acts, a "strange energized feeling" that he could not resist would come
over him and result in actions that he could not stop. He explained
that he had not asked for help for his affliction or told anyone about
his criminal activity because he was afraid he would lose everything.
He expressed remorse for his actions but testified that, if he had not
been arrested, he would have continued to violently attack women.
Finally, Dr. Eric Engum, a lawyer and clinical psychologist, testified
that he had diagnosed the defendant with a psychological disorder
termed "intermittent explosive disorder." According to Engum, a
person suffering from this disorder normally experiences an
increasing, irresistible drive that results in some type of violent,
destructive act. Dr. Engum opined that the defendant's condition
may have grown out of his anger at abandonment in childhood but
conceded that the disorder was rare. According to him, the defendant
would function normally in an institutional regimented setting but, if
released, would repeat the violent behavior. The State offered Dr.
Engum's investigating notes to prove that he was a member of the
defense team acting as a lawyer searching for a defense, rather than
an objective psychologist searching for a diagnosis.
After deliberating approximately two hours, the jury returned a
verdict of death based on the two statutory aggravating
circumstances.2
2
Aggravating circumstances were (1) the murder was committed while the defendant was engaged in committing
a felony, and (2) the defendant had prior violent felony co nvictions. See Tenn. Code Ann. § 39-2-203(i)(2) and (7).
Although the supreme court held that the felony murder aggravator was improperly applied based on its holding in State
v. Middlebrooks , 840 S.W.2d 317, 346 (Tenn. 1992), it d etermined any error wa s harmless an d affirmed b oth Nicho ls’s
conviction and sentenc e. Nichols , 877 S.W.2d at 737-39.
-9-
Nichols, 877 S.W.2d at 726-27 (footnote omitted).
Since one of the claims in the post-conviction petitions is that trial counsel were ineffective
for not investigating the petitioner’s confessions to ascertain whether they were “false,” we will
detail both the various statements which he made regarding the crimes as well as additional proof.
In addition to the hour-long videotaped statement which the petitioner made regarding the
death of Karen Pulley, as described in the supreme court opinion affirming his conviction for that
crime, he made additional statements regarding his guilt in that case, as well as the others with which
he was charged. On January 6, 1989, beginning at 12:47 a.m., he confessed to law enforcement
officers to the rapes of D.L., P.G., P.R., and S.T. These confessions were all short, and the purpose
of the questions appeared to be to determine how many rape complaints would be closed as the result
of the arrest of the petitioner. Shortly after that, he confessed to a rape and an attempted rape in
Tiftonia, occurring apparently in October and December 1988, as well as a third rape that occurred
in the same area, the victims not being identified by name and the intent of the questions apparently
being to ascertain whether the petitioner had committed these rapes as well. Next, the petitioner
confessed to two rapes occurring in Red Bank, with the victims again not being identified by name.
Also, the petitioner made additional short confessions as to items he had taken from three rape
scenes, one relating to the rape of P.G. The other victims were not identified by name. It appears
that all of these statements were tape-recorded. It is unclear how many statements subsequently
were made to law enforcement officers in addition to these.
That same morning, an oral statement was taken from the petitioner’s wife, who said that
beginning in July or August of 1988, the petitioner began going out at night. On some occasions,
she would be aware when he left, but other times she “would wake up and he would be gone and
[she] would wonder where he was.” She said that on January 3, 1989, he left between 8:30 and 9:00
p.m. and returned home about 7:00 a.m. This is the period when P.R. and S.T. were both raped. She
told officers that he explained the scratch on his eye when he arrived home by saying that as he was
driving with gloves on to pick her up from work, his eye began to itch and, unable to scratch himself
because of the gloves, he picked up a screwdriver to do so and poked himself in the eye, cutting
himself. She testified in the Karen Pulley trial that she had asked him, presumably after his arrest,
about the Pulley murder, and he told her that he was guilty of it.
As trial counsel noted during the post-conviction hearing, the petitioner consistently admitted
to them his guilt as to the charges against him. During a meeting with Michael Cohan, the
investigator for defense counsel, the petitioner described in detail his attack upon Karen Pulley.
Additionally, he admitted his guilt to Dr. Eric Engum, a psychologist retained by trial counsel.
Further, he admitted his guilt in the death of Karen Pulley to the victim’s mother and told his uncle,
during a post-trial visit to the petitioner in prison, that he was guilty. He also testified in court as to
his guilt. During the penalty phase of the Karen Pulley trial, the petitioner testified as to his rape and
murder of the victim. He was questioned by his trial counsel:
-10-
Q. Wayne, let’s talk about Karen Pulley. Did you know Karen
Pulley?
A. No, I didn’t.
Q. Did you intend to kill Karen Pulley when you broke into her
house?
A. No.
The petitioner then testified what he had done after entering the victim’s house:
A. Well, I went upstairs and seen someone setting [sic] there on the
bed. And, you know, it was dark and at the time I didn’t know
whether it was, you know, male or female until she spoke, and that’s
when, you know, I attacked her and raped her.
Q. Why did you kill her then?
A. It was just that, you know, she was hanging onto me and, you
know, I was trying to leave and stuff, and I just – I don’t know.
Q. Did you mean to kill her?
A. No.
Q. Did you?
A. Yes.
During his testimony in the Pulley trial, the petitioner, apparently referring to his confessions
to Sergeant Heck regarding other rape victims, said that “getting all this, the other things off my
mind – or off my chest was like a relief.”
The petitioner made statements, in addition to those previously described in this opinion,
regarding the attacks upon the other victims as well. During the trial for the rape of P.R. and the first
degree burglary of her residence, Captain Larry Holland of the East Ridge Police Department
testified regarding the confession given to him by the petitioner. The following is a portion of the
petitioner’s statement to Captain Holland, as related during the trial:
Holland: Okay. Can you remember how you got into this house [of
P.R.]?
-11-
Nichols: Yeah.
Holland: How?
Nichols: I entered through the back door which was locked. I used
a screwdriver to get the door actually open, and it was chained and I
just, you know, pushed the door on open so the chain broke loose.
And the woman was upstairs and I got her from upstairs and—
Holland: Did you see her child upstairs?
Nichols: Yes. There was a child in bed asleep. And she was on the
telephone when I got upstairs and I told her—
Holland: Did she tell you who she was on the phone with?
Nichols: No, she didn’t say. And I told her to put the phone down.
And I took her down the stairs to the living room and that’s
where–she had on like a nightgown type thing, and I tore it off and I
proceeded to have sexual intercourse with her, and—
As to P.G., another case that was tried, the petitioner had also made a detailed statement to
Captain Holland, which was read to the jury during the trial.3 A portion of that statement is as
follows:
Nichols: Yeah. I entered through the front door which was
unlocked. All I did was just open it.
Holland: Did you have any idea that it was open?
Nichols: No, I didn’t.
Holland: How did you know that she lived by herself?
Nichols: I had seen through a window and I entered through the
front door. And I went in and I believe I picked up a knife from the
kitchen in this house. And a woman was in there asleep on the couch.
Holland: In the bedroom or den?
Nichols: The living room.
3
This statem ent is in add ition to the o ne to Cap tain Hollan d mad e by the p etitioner sho rtly after his arr est.
-12-
Holland: Okay.
Nichols: It might have been what you might refer to as a den or
something cause I went through one bedroom into the kitchen. And
I woke her up there on the couch and then told her to go to the
bedroom, and we did. And I believe I cut her top off of her. She had
on kind of like sweat pants or something like that, and I pulled them
off. And that’s where I had sexual intercourse with her.
Holland: Forcibly, is that right?
Nichols: That’s right, there on the bed.
Holland: And you did not ejaculate inside of her. Do you recall
where you did ejaculate?
Nichols: I believe it was up on – I believe it was on her face.
Holland: Okay. Okay, and then what did you do, or what did you tell
her to do?
Nichols: Well, I told her to go get in the shower.
Holland: Who turned the shower on?
Nichols: I did.
Holland: Okay.
Nichols: And while she was in the shower, that’s when I left.
Holland: Okay. And did you go out the back door?
Nichols: I believe I went back out the front door.
A number of the rape victims identified the petitioner, either by viewing his photo, by seeing
him in court, or both. In the two noncapital cases that were tried, he was identified in court by both
of the victims, P.G. and P.R., as their assailant. As to the charges for the rape of S.T., which were
resolved by guilty pleas, the transcript of the guilty plea hearing contains the statement of the
prosecutor that S.T. picked a photograph of the defendant as the man who raped her. Additionally,
according to the prosecutor, East Ridge police officers took the petitioner to the apartment complex
where S.T. lived, and he pointed out her apartment. Apparently, the record does not indicate whether
the petitioner was identified by T.R., the other matter which was resolved by pleas of guilty and
-13-
which is the subject of a post-conviction petition. As to the additional five cases in which the
petitioner entered pleas of guilty and which are not questioned by a post-conviction petition, it
appears that the petitioner was identified by photograph by the victims, T.M., A.P., and C.B. It
appears that D.L. did not identify him, and the record does not reflect whether an identification was
made by T.H.
POST-CONVICTION HEARING
A number of witnesses testified at the consolidated evidentiary hearing on Nichols’s post-
conviction petitions. The substance of their testimony will be discussed in relevant portions of this
opinion. The State called the petitioner as a witness. However, prior to the petitioner’s being called,
post-conviction counsel had asserted in a memorandum that the petitioner had a privilege against
self-incrimination at the post-conviction hearing and that state law did not require that he testify.
The post-conviction court ruled that, although the petitioner did not have a privilege against self-
incrimination at the hearing, the court would not require him to respond to incriminating questions
from the State. Accordingly, other than to provide basic biographical information, the petitioner
refused to answer any of the State’s questions regarding the offenses themselves, asserting a Fifth
Amendment privilege.
SCOPE OF REVIEW
The findings of fact of the post-conviction court are conclusive on appeal, unless the
evidence preponderates against the findings, see State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)
(citing State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)); and the appellate court cannot “reweigh
or reevaluate” the evidence. Id.; see also Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997), cert.
denied, 525 U.S. 830, 119 S. Ct. 82, 142 L. Ed. 2d 64 (1998). However, the appellate court’s review
of the application of the law to the facts is de novo, without a presumption of correctness. See
Burns, 6 S.W.3d at 461; Harries v. State, 958 S.W.2d 799, 802 (Tenn. Crim. App.), perm. app.
denied (Tenn. 1997). Additionally, issues as to whether counsel was ineffective and whether
prejudice resulted are mixed questions of law and fact. Burns, 6 S.W.3d at 461 (citing Goad v. State,
938 S.W.2d 363 (Tenn. 1996)).
The petitioner’s original post-conviction petition in the capital case was filed on April 20,
1995, and is therefore controlled by Tennessee Code Annotated Section 40-30-101 to -124
(repealed). Accordingly, the petitioner must prove the allegations contained in this petition by a
preponderance of the evidence. See State v. Kerley, 820 S.W.2d 753, 755 (Tenn. Crim. App.), perm.
app. denied (Tenn. 1991); Oliphant v. State, 806 S.W.2d 215, 218 (Tenn. Crim. App.), perm. app.
denied (Tenn. 1991).
The petitioner’s post-conviction petitions in his noncapital cases were filed on December 18,
1996, and are therefore governed by the Post-Conviction Procedure Act. Tenn. Code Ann. § 40-30-
201-222. The petitioner must establish the factual allegations contained in his noncapital petitions
by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(2)(f).
-14-
ISSUES
I. Ineffective Assistance of Counsel
A. Applicable Law Regarding Ineffective Assistance of Counsel
Each of the petitioner’s first eight assignments of error are based upon his claim that he
received ineffective assistance of counsel. This claim is specifically raised with respect to the
petitioner’s entry of guilty pleas to the capital murder and to other noncapital offenses, as well as to
counsel’s representation of the petitioner during the sentencing phase of his capital trial.
In elaborating upon the requirement that an accused is entitled to constitutionally effective
assistance of counsel, the United States Supreme Court, in Strickland v. Washington, 466 U.S. 668,
686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), stated that 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.” The
Tennessee Supreme Court has often recited the two-prong test set forth in Strickland to be applied
to ineffective assistance claims:
To prevail on a claim of ineffective counsel in this proceeding, the
appellant must prove by a preponderance of the evidence that the
advice given or services rendered by his counsel fell below the range
of competence demanded of attorneys in criminal cases. Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975). He must also demonstrate
prejudice by showing a reasonable probability that but for counsels'
error, the result of the trial proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674 (1984); Goad v. State, 938 S.W.2d 363, 369 (Tenn.
1996).
King v. State, 989 S.W.2d 319, 330 (Tenn. 1999).
Specifically, the courts have been counseled against overdependence on hindsight in
assessing counsel’s performance. In fact, courts must be “highly deferential”:
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. Because of the
difficulties inherent in making the evaluation, a 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
-15-
challenged action “might be considered sound trial strategy.” See
Michel v. Louisiana, 350 U.S., at 101, 76 S. Ct., at 164.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982) (holding that counsel should not be measured by “20-20 hindsight”). Appellate courts must
recognize that “[t]here are countless ways to provide effective assistance in any given case” and that
“the best criminal defense attorneys would not defend a particular client in the same way.”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Other cases make clear the showing which must be made as to the criticized defense. See
Chandler v. United States, 218 F.3d 1305, 1315-16 (11th Cir. 2000), petition for cert. filed (U.S. Oct.
19, 2000) (citing Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc)) (“[T]o show that
the [lawyer’s] conduct was unreasonable, a petitioner must establish that no competent counsel
would have taken the action that his counsel did take.”); Provenzano v. Singletary, 148 F.3d 1327,
1332 (11th Cir. 1998) (noting that conduct of counsel is unreasonable only upon a showing “that no
competent counsel would have made such a choice”).
Further, the reasonableness of counsel’s decision not to investigate possible defenses is
affected and guided by the client’s own statements or actions:
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.
The reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or actions.
Burns, 6 S.W.3d at 462 (citing Strickland, 466 U.S. at 691, 104 S. Ct. at 2066).
The Strickland court explained that the need to further investigate a particular line of defense
“may be considerably diminished or eliminated altogether,” depending upon information supplied
by the client to counsel. Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. “In short, inquiry into
counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s
investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation
decisions.” Id.
In each of the petitioner’s cases under review by this court, he had initially given multiple
confessions to law enforcement officials and had confessed to both trial counsel and to their
investigator. He testified during the penalty phase of the Karen Pulley trial as to his guilt. He
admitted his guilt to Karen Pulley’s mother and subsequently to his uncle, who testified to that fact
during the post-conviction hearing. Although he has not claimed to have recanted these statements,
he has asserted in writing, in his post-conviction petition, that counsel were ineffective for not
investigating whether these were “false” confessions.
-16-
As previously stated, during the post-conviction hearing in these matters, the State called the
petitioner as a witness. Earlier, counsel for the petitioner had filed a memorandum of law, asserting
that the petitioner had a privilege against self-incrimination. The court ruled that the State could call
the petitioner as a witness, but that the court would not compel him to testify if he asserted his Fifth
Amendment privilege.
After he was called to the witness stand, the petitioner responded in the following fashion
to the State’s questions:
Q. For the record could you state your full name?
A. Harold Wayne Nichols.
Q. All right. Mr. Nichols, in September of 1988 could you tell us
where you were living?
A. I was living on Donaldson Road.
Q. All right. Specifically on September 30th of 1988, could you tell
us about the events of that evening, where you were and what you
did?4
....
A. Under the Fifth Amendment I refuse to answer that question.
Q. All right. So you refuse to answer the question what were you
doing on the evening of September 30, 1988?
A. That’s correct.
Q. Do you know Karen Pulley?
....
A. I’m going to refuse on grounds of the Fifth Amendment.
Q. So the question was do you know Karen Pulley and you’re going
to refuse to answer it on the grounds it may incriminate you?
4
This is the date that Karen Pulley was raped and murdered.
-17-
A. Under the Fifth Amendment, yes.
Q. All right. Are you going to answer any questions I have today?
A. None of the ones I’ve answered.
Q. Okay. Do you know [S.T.]?5
A. I refuse to answer on the ground it may incriminate me.
Q. Okay. All right. So if I ask you any questions involving any of
the names of the women that you pled guilty to raping will you
answer any of those questions?
A. I refuse to answer on grounds it may incriminate me.
Q. All right. Let’s try to go to something that’s a little easier for
you to talk about, do you know Claude Nichols?
A. Yes, I do.
Q. All right, who is Claude Nichols?
A. He’s my uncle.
Q. Okay. And he’s your father’s brother?
A. That’s correct.
Q. And were you in court when Claude Nichols testified?
A. I was.
Q. Okay. And that was June of this year, do you remember that?
A. Yes.
....
Q. You heard him testify in court, right?
5
On Octobe r 24, 198 9, the petition er had p led guilty to the agg ravated ra pe, petit larceny (reduced from grand
larceny), and first degree burglary complaints of S.T.
-18-
A. I did.
Q. And you heard him testify that he asked you, “Wayne, did you do
that,” referencing the murder, and your answer to him was yes, is that
the truth, Wayne?
A. I refuse to answer on grounds it may incriminate me.
Q. Did your uncle perjure himself here in court? Did he lie about
you telling him that you murdered Karen Pulley, and raped Karen
Pulley?
A. I refuse to answer on grounds it may incriminate me.
Q. Do you know Dr. Solovay?
A. I do.
Q. Okay. Who is Dr. Solovay?
A. Dr. Solovay is a psychologist.6
Q. Okay. And you heard Dr. Solovay, the fact is Dr. Solovay
conducted an examination of you in March of this year, March of
1997, is that correct?
A. That’s correct.
Q. All right. Did you participate in that examination?
A. I did.
Q. And did you answer his questions truthfully and accurately?
A. I refuse to answer that on the grounds it may incriminate me.
6
Dr. David A. Solovay was a clinical psychologist retained by post-conviction counsel for forensic consultation
as to the petitioner. Dr. Solovay stated in his report that “7) Mr. Nichols has sorrow, remorse and a sense of personal
guilt for his crimes, 8) Mr. Nichols acknowledged his wrongdoing at an early stage of the arrest. He was cooperative
with the police a nd acce pts respon sibility for his w rongd oing. 9) Mr. Nichols has expressed willingne ss to plead g uilty
to the crim e.” Durin g the hea ring, Dr. S olovay testified that the petitioner ad mitted his g uilt for the rapes and for the
murd er of Kar en Pulley .
-19-
Q. The question of whether you answered Dr. Solovay’s questions
truthfully and accurately, you’re not going to answer that?
A. That’s correct.
....
Q. Okay. I’ll rephrase it. Did you tell Dr. Solovay that you took
responsibility for the rape and murder of Karen Pulley?
A. I refuse to answer on grounds it may incriminate me.
....
Q. And do you remember in your discussions with [junior trial
counsel] that you told her that you, in fact, committed the rape and
murder of Karen Pulley?
A. I refuse to answer that on grounds it may incriminate me.
Q. Okay. And is that equally true for the other 41 charges that you
were indicted on in 1989?
A. I refuse to answer that on grounds it may incriminate me.
Q. Okay. So you will not answer any questions about any of the 41
charges if I ask you about them?
A. I refuse to answer on grounds it may incriminate me.
....
Q. [A]ll right. Do you have any problems with the investigation of
Detective Heck and how he took this confession from you?
A. I refuse to answer on the grounds it may incriminate me.
....
-20-
Q. Okay. With Richard Heck, you took him out and showed him
the 2-by-4 on Missionary Ridge. Can you tell us about how that
happened?7
A. I refuse to answer on grounds it may incriminate me.
Q. Okay. And with the actually going out to Karen Pulley’s house,
the log was outside the window, you pointed that out and showed that
to him, would you tell us about those facts and circumstances?
A. I refuse to answer on grounds it may incriminate me.
Q. You understand that this is your post conviction hearing?
A. I understand that.
Q. Okay. And you have the right to give testimony regarding that
post conviction hearing?
A. I have the right to, yes.
Q. Okay. And you understand that this is the only opportunity I
have to ask you questions about the rape and murder of Karen Pulley
and the other rapes that form the aggravating circumstances
underneath your death penalty?
A. Yeah, I understand it.
Q. Okay. And at this time your position that you’re taking with the
advice of one, two, three attorneys is that you will not answer any
questions from the state about those charges?
A. That’s correct.
We have reviewed the petitioner’s memorandum of law filed with the post-conviction court
asserting that he had a right to remain silent at the post-conviction hearing. The question is not
whether applicable post-conviction statutes require that he testify to make out his claims, although
he must be concerned about this because he bears the burden of proof. Rather, the issue is whether
7
On January 7, 1989, the petitioner had gone to this location with Sergeant Richard Heck where they found
at the base of a tree a two-by-four which the petitioner stated “look[ed] like” the one he had thrown out of his car
followin g the attack on Kar en Pulley .
-21-
he had a Fifth Amendment right against self-incrimination, thus precluding his being questioned by
the State.
It is clear that the State was entitled to call the petitioner to the witness stand and question
him during the post-conviction hearing. His convictions had become final years earlier, and,
consequently, he no longer had a privilege against self-incrimination. As explained in State v.
Barone, 986 P.2d 5 (Or. 1999), cert. denied, 528 U.S. 1086, 120 S. Ct. 813, 145 L. Ed. 2d 685
(2000):
[T]he question before us is whether a witness, who has been
convicted of a crime and has exhausted his direct appeals from that
crime, nevertheless possesses a privilege against self-incrimination
and may refuse to answer questions about the crime, if he intends at
some time in the future to attack his conviction through post-
conviction or habeas corpus proceedings. We conclude that a witness
does not possess a privilege against self-incrimination under those
circumstances. The Fifth Amendment privilege against self-
incrimination protects witnesses from the danger of exposing
themselves to criminal liability. The privilege applies where the risk
of self-incrimination is “real and appreciable,” not “remote and
improbable.” Here, Darcell’s asserted risk of self-incrimination was
neither “real” nor “appreciable,” because at the time when he claimed
the privilege, Darcell already had been convicted of the charge for
which he feared prosecution. He could not incriminate himself
further by answering questions about a crime for which he already
had been convicted and sentenced and for which his direct appeals
were exhausted. Mitchell v. United States, 526 U.S. 314, 119 S. Ct.
1307, 1314, 143 L. Ed. 2d 424 (1999) (“It is true, as a general rule,
that where there can be no further incrimination, there is no basis for
the assertion of the privilege. We conclude that principle applies to
cases in which the sentence has been fixed and the judgment of
conviction has become final.”); Reina v. United States, 364 U.S. 507,
513, 81 S. Ct. 260, 5 L. Ed. 2d 249 (1960) (citing “weighty authority”
for the proposition that, “once a person is convicted of a crime, he no
longer has the privilege against self-incrimination as he can no longer
be incriminated by his testimony about said crime . . . .”).
Id. at 20-21.
The Alabama Court of Criminal Appeals, in State v. Click, 768 So.2d 417 (Ala. Crim. App.
1999), cert. denied, ____ U.S. ____, 121 S. Ct. 92, 148 L. Ed. 2d 52 (2000) (citing Mitchell v.
United States, 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999), and Barone), ruled that an
inmate, whose conviction and sentence had been affirmed on direct appeal, had no Fifth Amendment
-22-
privilege against self-incrimination in a hearing on his petition for post-conviction relief attacking
his conviction.
In Bryan v. State, 848 S.W.2d 72 (Tenn. Crim. App.), perm. app. denied (Tenn. 1992), the
petitioner had claimed in his post-conviction petition that his guilty pleas were not voluntarily,
knowingly, and intelligently entered. However, both he and his attorney declined to testify as to their
pre-guilty plea conversations, citing attorney-client privilege. This court denied that the privilege
applied to the situation, noting first that there was “no blanket prohibition against the state even
calling the petitioner as a witness to prove that the guilty pleas were, in fact, voluntarily, knowingly
and understandingly entered.” Id. at 79. The court then explained the relevance of such testimony:
The petitioner’s intelligence, education, previous history with the
criminal justice system, including evidence of his previously being
advised of the pertinent constitutional rights, and anything else which
would bear on the petitioner’s understanding of his rights would be
relevant. The state is entitled to a fair opportunity to present such
evidence.
Bryan, 848 S.W.2d at 79.
The court concluded that because of the issues raised by the post-conviction petition
regarding the petitioner’s knowledge of his rights and consequences of the plea, an implied waiver
of the attorney-client privilege was appropriate, upon a “showing that the information possessed by
the trial attorney was vital to [the state’s] defense in the post-conviction action.” Id. at 81. The court
detailed the rationale for its ruling:
A post-conviction case is not a criminal prosecution, but is a means
to address a petitioner’s allegations of constitutional wrongdoing in
a previous convicting or sentencing process. However, once a
petitioner alleges and seeks to prove constitutional error, the state
should be entitled to prove the absence of such error. Fairness in the
judicial process demands no less.
Id.
Here, it is clear that there was no privilege which protected the petitioner from being called
to testify at his post-conviction hearing. Additionally, Tennessee law did not prevent the State’s
calling the petitioner as a witness.
One of the authorities upon which the petitioner relies in the post-conviction memorandum
regarding his testifying is not helpful to his assertions. The petitioner is correct that in Teague v.
State, 772 S.W.2d 932 (Tenn. Crim. App. 1988), perm. app. denied (Tenn. 1989), the court
concluded that even though the petitioner elected not to testify during the post-conviction hearing,
-23-
there was sufficient evidence in the record that the petitioner would not have entered a plea of guilty
or nolo contendere if he had known that it could be used as an aggravating circumstance in a capital
case in which the petitioner was subsequently convicted and sentenced to death. However, in that
matter, petitioner’s trial counsel, whose competency was being questioned, testified during the post-
conviction hearing that the petitioner, upon learning of the use to which the State could put the guilty
plea, immediately wanted to know why counsel had let him enter the plea. Counsel also testified that
his advice regarding the plea was “[t]he worst [advice] I ever gave anybody.” Id. at 935.
While Teague establishes that, under certain circumstances, ineffective assistance of counsel
can be established other than through a petitioner’s testimony, it does not touch upon whether the
State can call a petitioner to testify during a post-conviction hearing. Here, petitioner’s trial counsel
strongly disagreed that their trial decisions had not been appropriate under the circumstances or that
they had provided ineffective assistance of counsel in any way. Accordingly, this petitioner cannot
rely, as occurred in Teague, upon his trial counsel, themselves, to establish ineffective assistance of
counsel.
Further, the court in Teague recognized that an adverse inference can be drawn when a
petitioner, as a “missing witness,” does not testify during the hearing. The court noted that, as to
Teague himself, the inference was “greatly diluted in strength, if not explained away,” by the facts
that trial counsel’s deficient performance had been otherwise established and that the petitioner’s
post-conviction hearing testimony could be used against him in a subsequent retrial of the charges.
Id. at 940.
Based upon these authorities, we conclude that the petitioner had no basis to refuse to answer
the questions asked of him by the State during the hearing on his post-conviction petitions.
Additionally, we conclude that an adverse inference could have been drawn because of the
petitioner’s refusal to answer questions of the State. Although this petitioner, like that in Teague and
others seeking post-conviction relief from a conviction, may not have wished to make statements
which could be used against him in a retrial, that fact is not sufficient to avoid an adverse inference
resulting from a refusal to testify. Here, the issue of ineffective assistance of counsel was highly
contested and not conceded by trial counsel, as occurred in Teague. Our efforts to ascertain whether
a “just result,” as envisioned by Strickland, was achieved were hampered by the petitioner’s
unjustified dependence upon the Fifth Amendment.
B. Petitioner Received Ineffective Assistance of Counsel at the Guilt Stage
The petitioner first argues that trial counsel were ineffective for their general failure to
adequately investigate his charges when a competent investigation would have led them to the
discovery of evidence of his innocence in some cases and to question the validity of his confessions
to the various offenses. The petitioner’s specific allegations may be generally separated into claims
that counsel failed to adequately investigate and/or analyze evidence of his innocence in the rape and
murder of Karen Pulley and two other rape cases, and that counsel failed to analyze evidence
demonstrating that the petitioner’s confessions in these cases and the ones in which he pled guilty
-24-
were “false.” The petitioner argues that competent trial counsel would have used the information
discovered through a proper investigation to recommend that the petitioner go to trial. Instead,
according to the petitioner, trial counsel’s advice to plead guilty was uninformed due to the lack of
independent investigation and analysis of all the available evidence and records.
1. Trial Counsel Failed to Analyze Evidence Demonstrating
the Petitioner’s Confessions Were Unreliable
Because, as explained in Strickland, the responsibility of trial counsel to investigate possible
defenses is affected by what the petitioner told counsel about the offenses, we will first examine the
petitioner’s claim that counsel were ineffective for not investigating whether his confessions were
false.
The petitioner presented proof to support his contention that his confessions bore indicia of
unreliability that should have alerted his trial counsel to question their validity. He presented the
deposition testimony of Dr. Richard J. Ofshe that counsel should have investigated his confessions
to determine if they were false. He presented proof during the post-conviction hearing that the two-
by-four, presumed to be the Karen Pulley murder weapon, could not have been so. He presented
testimony that business records showed that he was at work at the time of one of the rapes to which
he pled guilty, but which is not the subject of collateral attack, and that this fact, as competent
counsel would have recognized, should have shown that all of his confessions were false. He
claimed that a pistol relied upon by the prosecution as proof as to the aggravated rape, grand larceny,
and first degree burglary indictments in which S.T. was the victim and to which he pled guilty, was
of a different type than that identified by the victim. He referred to serology tests, the results
showing, according to the petitioner, that he did not commit several of the offenses to which he pled
guilty. We will consider each of these claims.
First, in assessing the petitioner’s claims as to his confession in the Karen Pulley case, we
note that the supreme court, on direct appeal of the sentencing in that case, determined that the
petitioner’s confession was voluntary and therefore admissible. Nichols, 877 S.W.2d at 732. The
court observed that the trial court’s ruling on the statement’s admissibility was supported by
evidence that the petitioner was read and waived his Miranda rights and that the trial court credited
the testimony of officers that disputed the petitioner’s contention that he was coerced into
confessing. Id. We are bound by the supreme court’s determination of this issue. An issue has been
previously determined “if a court of competent jurisdiction has ruled on the merits after a full and
fair hearing.” Tenn. Code Ann. § 40-30-206(h).
We will now review the statements of the petitioner, because the reasonableness of trial
counsel’s advice not to pursue a “false” confession defense, but instead to recommend pleas of guilty
as to certain of the charges, “may be determined or substantially influenced by the defendant’s own
statements or actions,” to which decision we apply “a heavy measure of deference to counsel’s
judgments.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.
-25-
The lengthiest statement of the petitioner regarding the offenses with which he was charged
appears to have been that made regarding the Karen Pulley murder to Sergeant Richard Heck, which
was videotaped and is a part of the appellate record. The videotaped statement is somewhat over an
hour in length and records the conversation of the petitioner and Sergeant Heck while both were
seated at a desk. To many of the questions, the petitioner provided long, detailed narrative
responses. The petitioner volunteered to do so and then drew a diagram of the area of Karen Pulley’s
house, showing where cars were parked, the route he took to her house, and his point of entry into
the house. Sergeant Heck provided a floor plan of the first level of the house, and the petitioner
detailed the path he took through that level, marking where the victim’s purse was located. On a
drawing of the upstairs, where he confronted the victim, the petitioner explained the layout and the
location of the victim’s bed, where he raped and then beat the victim with a two-by-four. The
petitioner then used the diagrams to explain in detail the route he took after the attack. The tone of
the statement was conversational and friendly. However, as the petitioner told of the rape and
beating of Karen Pulley, he became visibly upset and his voice broke. Based upon our review of this
tape, we conclude that it would have had a powerful effect upon a jury deciding the guilt or
innocence of the petitioner as to the charges that he raped and murdered Karen Pulley. Also, the
petitioner told Sergeant Heck where he had disposed of the two-by-four which he used to beat Karen
Pulley and accompanied Heck to the location where the two-by-four was recovered.
The petitioner also confessed to the charges brought against him by P.G. and P.R., all of
which were tried and resulted in verdicts of guilty. Each confession, excerpts from both of which
were previously set out in this opinion, was related to the respective juries during the trials by
Captain Holland. The petitioner did not testify during either of these trials. Additionally, the record
contains a series of short confessions as to the victims D.L., P.G., P.R., and S.T., as well as offenses
in Tiftonia and a rape and an attempted rape in Red Bank.
During their testimony at the post-conviction hearing, the petitioner’s trial counsel testified
as to how they assessed the petitioner’s confessions to law enforcement authorities, as well as to
them. As for an investigation, in addition to meeting with the petitioner, senior trial counsel testified
that he read the files and the interviews and visited some, if not all, of the crime scenes. Their
investigation of the facts showed that the petitioner was not guilty of one of the rapes, and they were
successful in having that charge dismissed. Senior counsel described the videotape, in which the
petitioner confessed to raping Karen Pulley, as “emotional.” He testified that based upon “lot[s] of
conversations” that they had with the petitioner, it “seemed to be a waste of time” to investigate
whether someone else had attacked Karen Pulley:
We had a lot of conversations with Mr. Nichols and based on those
conversations and based on our work on the case that did not seem
like a fruitful line of inquiry. If I for a minute had thought that
someone else had raped and killed Karen Pulley, I would have gone
after that tooth and nail.
-26-
He acknowledged that if a client’s statement does not “match 100 percent” with the facts of
the case, counsel must exercise judgment regarding the extent to which the statement must be
investigated:
It’s based on my judgment, it’s based on my judgment that you spend
time going down trails that appear to lead somewhere and that you
don’t spend time going down trails that appear don’t [sic] to lead
anywhere and that the trail that someone else attacked Karen Pulley
didn’t appear to – I won’t speak for [junior trial counsel], didn’t
appear to me to lead anywhere.
He testified that, as a general rule, if there was “enough that didn’t match [he] would’ve considered
bringing it to the jury’s attention, yes.”
Senior counsel said that there was nothing he recalled “in any of the many conversations that
[junior counsel] and [he] had with [the petitioner] that led [them] to question the confession” as to
Karen Pulley. When they were unsuccessful in quashing the statement, their only options were then
“to attack the statement in some way” or to do what they did, which was to present a “mitigation
case.” Senior counsel testified that there was no indication to either him or junior counsel that the
petitioner’s “statements were not based in fact.”
Junior trial counsel for the petitioner testified regarding her conversations with him. She was
familiar with the tape-recorded confessions that he had given to law enforcement officers and
believed that, in their questions, officers tried to lead the petitioner into making statements which
would “incense” the jury. She said that she met with the petitioner and he “verified all of [the] facts”
of the charges against him. She did not lead him in the recounting of the incidents but “would either
prompt him by the address or by something that would make him remember which case” they were
talking about. The petitioner’s “recollections were very vivid.” She said that her client would not
admit to “some things” but that “on everything else it was very consistent with some small
exceptions on the police reports.” She testified that the petitioner “had told me in great detail that
he had done each of these crimes.”
Counsel was asked if she considered whether his confessions might be false and if her “mind
rest[ed] easily” that this was not the case. She replied:
Yes. In fact, one of the things that Wayne and I talked about was the
fact that the confessions, some of them and some parts of them were
so detailed, that they were things, you know, that only he and/or the
victim would know, and we talked about that and, as I said, Wayne
is smart. You know, he’s got a good memory and they were very
detailed.
-27-
As to presenting a defense that the confessions were false, she said that “after investigating this case
thoroughly we decided that was a ludicrous defense,” unless they had “wanted to manufacture a
defense.”
Michael Cohan, the investigator retained by petitioner’s appointed trial counsel, also testified
during the hearing. Formerly, he had been a military police officer for four years, a University of
Tennessee police officer for two years, and a Knoxville narcotics officer for about five years. After
being the assistant regional director for investigations for the Department of Human Services
Welfare Fraud Division, also for about five years, he had become a private investigator in 1986.
He talked “extensively” with the petitioner, the first meeting occurring on May 19, 1989.
Cohan made detailed notes of his meeting with the petitioner, the notes being introduced as an
exhibit in the post-conviction hearing. The petitioner told Cohan about the attack on Karen Pulley:
Wayne insists that Karen Pulley’s house was chosen totally at
random. He said that when he got restless he didn’t like to sit around
and he’d just go out and drive around. He said he was just driving by
and saw that there was only one light on. He said that he saw two
cars in the driveway, looked through the window, saw one girl getting
dressed, saw her leave, and when he came around and she was gone,
he assumed there was nobody there. He said his sole purpose in
going into the house was burglary.
He said that while the house is two story, he thought it only looked
like it was a two story [sic] house. He explained that his father’s
house appears to be a two story house, but it is truly just a one story
house. He said he went in and he was looking around and it was only
then that he saw the steps. [He told me pretty much what he told
Heck. I’m not going into a lot of redundant detail.] [brackets in
original]
Wayne said he saw her pocketbook on the back of the couch and went
through it. He’s not sure whether he took some cash out of it or not.
He said he wouldn’t have messed with checks or credit cards.
At any rate, he went up the steps. When he got up the steps he saw
the girl sitting up in bed. Wayne then stopped and said “I didn’t even
tell Heck this part.” He went on to say that the girl didn’t scream.
Said she looked at him and said “which one are you?” [That ends the
part that he didn’t tell Heck.] [brackets in original]. He said he
responded for her not to worry about it. He said that he didn’t go
there with the intent to rape her that it just “came up.” He reiterated
that the majority of the damage was done as she clung to him as he
-28-
was trying to get away from her and leave. I asked him if it was true
that he put a pillow under her head and he said he didn’t remember
exactly. He said, I remember that I “got something off the bed.” He
said he wasn’t real sure what it was or what he did with it. At any
rate, he said he then exited by the back door.
Wayne said, as he had earlier said to [junior trial counsel] in front of
me, that he didn’t think he killed the girl. I asked him why that was
and he said there were wounds on her body that he didn’t do. We got
the diagram out and he was specifically talking about what I believe
is a tracheotomy site obviously on her throat. He also pointed out the
punctures in her arms and I explained to him our belief from reading
the autopsy that those were intravenous cites [sic].
He said that he was also disturbed with some of the things they found
in the house. He said there was something about the telephone being
pulled out of the wall and that he had never touched the telephone.
He said that the police were very inquisitive regarding the movement
of a chair in the living room, a T.V. in the living room and something
in a hallway that had been placed on a stand. He said he never
messed with anything like that. He believes from the insistence of the
police questioning that they thought there had been significant
movements of all these items.
At the conclusion of the Karen Pulley trial, apparently just after the death penalty had been
imposed, trial counsel were advised that the victim’s mother wished to speak with the petitioner.
In her post-conviction testimony, junior trial counsel explained what then occurred:
A. We talked to Wayne about – and I had no idea what Mrs. Pulley
wanted to talk about and was surprised that she did want to talk to
him. And, you know, explained that anything he said to her or so on,
anything that happened in this meeting could be used later, you know,
at some potential hearing or retrial or whatever, and that it was just
fraught with a lot of problems, but Wayne wanted to talk to her.
And, so [senior trial counsel] and me and Mrs. Pulley and Wayne met
in the little anteroom of Judge Meyer’s courtroom. And it was
probably as emotional a thing as I’d ever been a part of. And I
thought – well, I thought everybody involved was, I guess, sort of
brave or something, but Mrs. Pulley in particular, and Wayne. They
talked, and I don’t remember anybody’s exact words, but Wayne
apologized over and over for what he had done to her daughter, and
she was very gracious and wonderful and talked to him a little bit
-29-
about the scriptures and God and forgiveness, and the difference
between death and eternal death and I thought was really making an
effort based on her religious beliefs to sort of save this kid’s soul. It
was very moving and it was very – it was just very interesting.
Q. (By Mr. Davis) And he acknowledged to her and in his words
his responsibility for her daughter’s death?
A. Yeah, I mean I don’t – you know, again, I don’t recall that he
said – you know, I don’t recall his specific words, but, yes, he – I
think it was somewhat of a relief to Wayne was the feeling I had too.
And, like I said, I thought it was a really – I wouldn’t have been able
to do it under her circumstances but I thought it was a very brave
thing for her to do and for Wayne to do.
Additionally, the petitioner’s uncle, Claude Nichols, testified during the post-conviction
hearing that, following the Karen Pulley trial, he had visited the petitioner in prison. Regarding the
crimes, he asked the petitioner, “Wayne, did you do that?” and the petitioner answered, “Yes.”
Thus, prior to the trial as to Karen Pulley, in addition to his confessions to police officers,
the petitioner told both of his court-appointed attorneys, as well as their investigator, of his
responsibility for the crime. He testified as to his responsibility during the sentencing phase of the
trial. Later, he reaffirmed his guilt to his uncle and to Karen Pulley’s mother.
Dr. Richard Ofshe, whose video deposition was presented as part of the petitioner’s proof
during the post-conviction hearing, is a professor at the University of California who teaches and
does research in the areas of social psychology and extreme forms of influence. He is the holder of
a B.A. and M.A. in psychology and a Ph.D in sociology. During his deposition, he discussed,
generally, false and coerced confessions. Dr. Ofshe did not meet with the petitioner. However, he
had reviewed the “series of transcriptions of short statements” by the petitioner regarding the various
charges, as well as the petitioner’s statements regarding the rapes of P.R. and S.T. In addition to
other materials, he had reviewed the interview notes of the trial counsel’s investigator and,
apparently, the videotape of the confession as to the murder of Karen Pulley.
Dr. Ofshe opined that there appeared to be no investigation of either “how the statements
came about” or whether they “should qualify as reliable statements.” He stated that the lack of
physical evidence was a factor as to why the statements should have been investigated. He did not
find any evidence that the petitioner was “debriefed” by his trial attorneys regarding the various
statements. Dr. Ofshe discussed certain testimony of the petitioner from the suppression hearing
which he considered to be important. For instance, Dr. Ofshe considered it significant that the
petitioner testified that he was told by officers that he would receive “treatment” in exchange for
cooperation. He felt that trial counsel should have investigated how this subject came up. Dr. Ofshe
testified that trial counsel should have determined if this subject was brought up to obtain an
-30-
admission from the petitioner. He said that trial counsel should have also discussed with the
petitioner his conversation with officers regarding an attorney and whether his request was
neutralized. They should also have debriefed the petitioner as to how he was “rehearsed” prior to
the statement’s being recorded. Dr. Ofshe testified he found it to be “astounding” that there was not
any physical evidence linking the petitioner to the crimes. This fact, according to Dr. Ofshe, “should
have signaled to his attorneys there’s a possibility, a distinct possibility he may be innocent of some
or all of these crimes.” These factors, Dr. Ofshe testified, are “the absolute minimum in dealing with
a confession case,” and unless they were all looked at, an attorney could not competently advise a
client as to what to do. Dr. Ofshe further stated that there were fewer resources available for the
attorney, as to evaluation of a confession, in 1989 than there were in 1997, when his deposition was
taken.
In addition to Dr. Ofshe’s testimony, the petitioner makes further arguments as to why trial
counsel should have questioned his confessions. He claims that the first series of statements, in
which he confessed to five aggravated rapes and related charges, took only six minutes; that certain
coercive tactics were utilized; that there were discrepancies between his statements and the incident
reports regarding certain of the crimes; that he was unable to give any details of the incidents which
had not already been included in police reports; and that a number of the “facts” of which he advised
officers were inconsistent with the crime scene reports.
Additionally, the petitioner points to certain scientific proof or reports, which, he argues,
should have alerted trial counsel of his actual innocence.
a. Serology Evidence
The petitioner argues that counsel failed to review serology evidence which positively
excluded him as the rapist, and thus the murderer, of Karen Pulley, and which also excluded him as
the rapist in the T.R. case, the latter being significant for its use as an aggravator in the capital case.
The petitioner relies upon a May 19, 1989, Tennessee Bureau of Investigation (“TBI”) Crime
Laboratory report of forensic scientist Joe P. Minor, in which Mr. Minor sets out his conclusion as
to vaginal and saliva cotton swabs from the rape evidence kit collected from Karen Pulley, which
the TBI Lab had received from Dr. F. K. King, the Hamilton County Medical Examiner. According
to that report, a glass slide revealed the presence of spermatozoa but the typing test for the vaginal
swab “failed to indicate the presence of A, B or H antigens.” Based upon these results, coupled with
the fact that the petitioner was a secretor, the petitioner contends he was excluded from the class of
males who could have committed the Pulley rape. Junior trial counsel testified that she was familiar
with the serology report of Mr. Minor and had probably talked to him by telephone, although it is
possible that she discussed it, instead, with the prosecutor.
Similarly, with respect to the rape of T.R., the petitioner contends that counsel failed to make
further necessary inquiry concerning the report of TBI serologist Mike VanSant. The petitioner
contends that providing VanSant with further details of the T.R. rape would have given him the
necessary information to enable him to change his “inconclusive” results in the testing of the semen
-31-
found in the vaginal swab to a conclusion that the petitioner was excluded as the rapist in the T.R.
case. We will examine these contentions.
Karen Pulley
Specifically, as to Karen Pulley, the petitioner claims in his appellate brief that a
consideration of several of the exhibits together shows that he was not within the class of males who
“could have raped Karen Pulley.” Arguing that since A, B, and H antigens were not found on the
vaginal swabs taken from Karen Pulley, and that since he was a Type O secretor, and his seminal
fluid would have contained an H antigen, the petitioner’s brief concludes:
Therefore, the presence of spermatozoa on TBI exhibit 43B and
the lack of A, B or H antigens on TBI exhibit 43D, demonstrates that
the perpetrator of the crime was a non-secretor. Since, Nichols is a
secretor he is excluded from the class of males who could have raped
Karen Pulley. Since Ms. Pulley was a virgin prior to her rape and
murder (Dr. King at PC T, Vol. X, 1363), the sperm and its
necessarily accompanying semen had to have been the body fluid of
the perpetrator, a non-secretor.
We do not agree that this necessarily is a valid conclusion. We note that no expert witness
testified that the scientific evidence excludes the petitioner from the class of males, one of whom
raped Karen Pulley. Post-conviction counsel called as a witness Mike VanSant who had formerly
been employed as a serologist with the TBI Crime Lab and had done serology work on the T.R. and
P.G. cases. He said that he had “briefly” reviewed that morning the lab results in the Karen Pulley
case. In seeking to question him about those results, petitioner’s counsel explained what she sought
to establish through Mr. VanSant:
Just that there were results in the Karen Pulley case that are consistent
with the lab notes in the Karen Pulley case, several swabs were tested,
no antigens were found on any swab that there were sperm found, no
antigens.
Counsel for the State responded to this argument:
Your Honor, the state’s position very simply is Karen Pulley is a
complicated serology case, you’re talking about a woman who had a
rape kit and then at the time of autopsy other slides were taken,
serology was done, she had massive blood transfusions at the hospital
that were not her blood type, it may not have been her exactly her
-32-
same antigen patterns. The serologist will be here tomorrow for us
and will be available to testify.8
Petitioner’s counsel then made more specific what opinion testimony she wished to obtain
from Mr. VanSant: “Based on what Mr. Davis has just said I would like to ask him if blood
transfusions make any difference in serology.”
Through Mr. VanSant, petitioner’s counsel established that “massive blood transfusions,”
such as those administered to Karen Pulley, could have affected blood samples taken from her, but
not “vaginal swabs and saliva swatches.” In her questioning, counsel later asked whether the results
would be affected if the vaginal swabs were bloody; and there was the following series of questions
and answers:
Q. Is there a way to distinguish blood from semen? I mean, for
instance, on the vaginal swab if you come up with a result – would
the fact that it’s bloody make any difference?
A. No, on a vaginal swab if semen is present I’m dealing with a
mixture of two fluids from two different people if semen is present in
a vaginal swab.
Q. Even if there’s a lot of blood?
A. That, I really couldn’t answer. If there’s a lot of blood, blood
flow then yes, naturally it’s going to have the cleansing action over
a period of time.
Q. Over a period of time, but just because there’s a lot of blood, that
doesn’t hide the fact that there’s semen there, that whatever antigens
you would get from the semen?
A. Not necessarily.
Mr. VanSant was not asked to further explain this response. Petitioner’s counsel had earlier
asked Mr. VanSant, referring to the rape of T.R., whether the fact that a woman was menstruating
when she was raped would “change the serological results” on a test performed from a vaginal swab.
Although in the above quoted testimony Mr. VanSant may have again been referring to the rape of
T.R., this is unclear. A common sense reading of the transcript of his testimony appears to be that
a substantial flow of blood from the vagina would have a “cleansing action over a period of time”
which could affect antigens detectable in semen found on a vaginal swab. Dr. King testified that
8
No other serologists testified during the post-conviction hearing. A serologist did not testify for the State
during the hearing.
-33-
Karen Pulley suffered a “traumatic rupture of the hymen” resulting in “multiple lacerations or tears
and bruising of the complete circumference of the inner edge of the hymen.” He testified that there
was a lot of blood at the crime scene. The record is silent as to how extensive a blood flow there was
from her vagina following the attack upon her and, consequently, whether it was sufficient to have
a “cleansing effect” as to the presence of antigens. As set out in the supreme court’s recitation of the
facts as to Karen Pulley, she lay mortally wounded and apparently bleeding, but still alive, for a
period of hours following the attack. Apparently, blood transfusions were administered as part of
the effort to keep her alive.
In view of the testimony of Mr. VanSant and the limited explanation of the Joe Minor report,
we conclude that the petitioner has failed to show that the results of the serology tests exclude him
as the attacker of Karen Pulley.
T.R.
The petitioner claims in his brief, as evidence of ineffective assistance of counsel, that results
of scientific tests excluded him as T.R.’s rapist. We will examine the evidence in light of this claim.
First, we note that on September 13, 1989, the petitioner entered pleas of guilty to the
burglary and aggravated rape of T.R. Prior to entry of the guilty pleas, the petitioner, in response to
questions from the trial court, stated that he had told his lawyers all that he knew about the matter,
and that he had no complaints about his attorneys. He told the court that based upon the State’s
proof, he believed that a jury would find him guilty of burglary and aggravated rape and that he was
entering pleas of guilty for that reason.
As for the scientific proof, Mr. VanSant testified at the post-conviction hearing that both the
petitioner and T.R. were O secretors who would secrete an H antigen. The proof was that T.R. had
voluntary intercourse three days prior to the rape. Following the rape of T.R., a B antigen was found
in saliva and vaginal swabs taken from T.R., and the B antigen could not have come from either the
petitioner or T.R., according to expert testimony. Based upon this result, the petitioner asserts that
he is excluded from the class of males who could have raped T.R.
Mr. VanSant further testified that he examined the bedspread from the bed where T.R. was
raped and found seven areas which, when examined under a laser light, had an appearance consistent
with the presence of semen or other bodily fluids. Upon testing a stain which was in the middle of
the bedspread, he found sperm and the H antigen present. He stated that the H antigen could have
come from T.R., who was an O secretor, the sperm being deposited by a nonsecretor, or that it could
have been deposited by a male who was also an O secretor. Mr. VanSant testified that the petitioner
was an O secretor and would secrete the H antigen in his body fluids. Thus, he could not exclude
the petitioner as the source of the H antigen on the bedspread. There was no proof presented as to
whether this stain occurred when T.R. was raped. In response to a question from the court, Mr.
VanSant explained that he could say only that the B antigen could not have come from the petitioner.
He could not say, however, whether the B antigen had come from the rapist or from a consensual
-34-
sexual partner with whom the victim had intercourse. He said that, in his opinion, “not much time
had elapsed between the time of the intercourse and the time the swab was taken.”
Relevant literature states that, utilizing tests such as those used by Mr. VanSant, the presence
of antigens could be detected up to nine days after a sexual act. He testified he would not expect to
be able to detect semen on an oral swab if it had been deposited three days earlier, when T.R. last
had voluntary relations. His conclusion was that, although he could exclude the petitioner as having
deposited the B antigen found in the saliva and vaginal swabs, he could not exclude him as being
the rapist of T.R. because an H antigen, which could have come from the petitioner, was found on
a stain on the bedspread.
Concluding his testimony, Mr. VanSant, responding to questions from the State as to whether
the tests actually performed as to the T.R. rape, or any additional tests, could exclude the petitioner
as the rapist, stated:
Q. You keep talking about further testing. You could do this testing
all day long and you could never exclude Harold Wayne Nichols
because he has the same genetic makeup on this type of testing as a
victim?
A. As [T.R.], yes.
Q. Right. So you could do the test today, I could make a little lab
for you right over here and you couldn’t exclude him?
A. It takes two days.
Q. I would speed it up for you, but you couldn’t exclude him, right,
because he has the exact same makeup as her?
A. I could exclude him as far as being the individual that would
have deposited the B antigen.
Q. Right. But you could not exclude him as the perpetrator?
A. No.
Q. Okay.
Thus, we disagree that the results of serology tests exclude the petitioner as the rapist of T.R. The
test results are made even cloudier by the fact that, although the record shows that T.R. had been to
a movie prior to returning to her residence where she was raped, it does not reveal whether she
attended the movie with a companion, or whether, if she had a companion, the B antigen later found
-35-
on the saliva swab could have been deposited if she had kissed her companion. T.R. was not called
to testify at the post-conviction hearing.
As to the T.R. rape, the petitioner argues in his brief that “[h]ad [trial] counsel spoken to
VanSant, however, counsel could have provided him necessary information to transform his
conclusion that the tests were inconclusive to a conclusion [that] Petitioner was excluded as a
suspect.” In fact, VanSant’s cross-examination was concluded by his admitting that even additional
testing would not have excluded the petitioner as the rapist of T.R.
b. Finding of the Two-by-Four
The petitioner claims that trial counsel were ineffective for not investigating the
circumstances under which the two-by-four was found. Additionally, the petitioner claims that
scientific proof shows that the two-by-four was not “linked” to the crimes.
Following his arrest, the petitioner had told Sergeant Heck how he had disposed of the two-
by-four near the intersection of Old Ringgold Road and Chickalilly Road:
Nichols: I noticed that there’s like a big bluff there, you know, a
slop, [sic]
Heck: Goin’ down towards the tunnels?
Nichols: Yeah, it slopped [sic] there, there was a bunch of shrubbery
and trees, and everything else in it, and, . . . uh, I went up the road and
turned around and come back, and uh, my windows are electric, so I
just rolled that side of the window down, and picked up [the] 2 by 4
outta the car and tossed it out the window, down that slop, [sic] and
from there I went home.
....
Heck: You threw it out the passenger window[?]
Nichols: Yeah.
....
Heck: Did you throw the 2 by 4 up hill or
Nichols: No, I threw it down hill, cause I went down
-36-
Heck: [It] could’ve been a ditch.
Nichols: Uh, no it wadn’t [sic] a ditch, it was, I know it was a slop,
[sic] see, cause I’d went, when I turned left on Chickalilly, when I
went down and turned around, and comin’ back the opposite
direction, and that way I threw it down hill.
Heck: Can you take me to where you put this 2 by 4?
Nichols: I can and I will.
His report described the petitioner’s route following the attack on Karen Pulley:
He turned right on North Terrace and drove to Germantown Rd.
where he turned left onto Germantown Rd. going into East Ridge. He
drove to Ringgold Rd. where he turned right going toward the
tunnels. Once he got to the tunnels he turned right and back to the
left going up Old Ringgold Rd. Once at the [sic] of the tunnels at
Eastview and Old Ringgold Rd. he made a U-turn and pulled to the
side of the road. He used electric door windows and rolled down the
front passenger side window and threw the 2X4 out of the window.
He stated the board was by a big tree where he threw it.
....
On 1-7-89 at approx. 1:20 AM, Harold Wayne Nichols took me to
East Ridge to where he threw the 2X4 board out his car window. We
located a 2X4 board lying at the base of a tree he indicated he threw
the board. There were no other boards in the area and Mr. Nichols
stated that it looks like the one he threw out of the window.
During the post-conviction hearing, Steve Miller, who was employed by the Chattanooga
Police Department at the time of the murder of Karen Pulley, testified that an initial search of the
area where the petitioner had said that he threw the two-by-four was unsuccessful. The petitioner
criticizes trial counsel for not interviewing Miller or Sue Sanders Massey, Karen Pulley’s roommate
at the time of the killing, regarding the finding of the two-by-four. Massey testified that she went
to the location where the two-by-four was found and that it was leaning against a tree when she
arrived. There were already a number of people there. It appeared to her as if someone had leaned
the board against the tree. She was not certain that the board had come from the house she shared
with the victim. She said that the board was in a wooded area, down a drop-off or retaining wall,
and not very far from the road. She had not been contacted by the petitioner’s trial counsel prior to
the Karen Pulley trial.
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The initial report from Craig Lahren, who was then employed by the Hamilton County
Medical Examiner’s Office, regarding the two-by-four, stated that he found no hair or fibers on it.
An affidavit from Mr. Lahren, filed as part of the petitioner’s post-conviction proof, stated that in
his initial examination he also looked for blood on the two-by-four and found none. Although junior
trial counsel for the petitioner said that she was aware of Lahren’s initial report and had interviewed
him, Lahren stated in his affidavit that petitioner’s trial counsel had not interviewed him. Dr. Neal
Haskell, a forensic entomologist, testified at the post-conviction hearing that he found no blood, hair,
or soft tissue on the board. He said that he did not believe that blood would have worked off of the
board or that insects would have eaten any hair or blood present. Additionally, he testified that if
the board had been exposed to the elements from September 30, 1988, until January 7, 1989, as it
supposedly was, he would have anticipated finding plant material on it, which did not occur.
Senior trial counsel testified that although neither blood nor hair from Karen Pulley was
found on the two-by-four, it was located where the petitioner said that he had thrown it, after driving
“up old Ringgold Road off the Bachman tubes.”
c. Hair Evidence
The petitioner states that post-conviction counsel obtained a large number of hair evidence
samples gathered at the Pulley crime scene from the Hamilton County Medical Examiner’s Office
and sent them to a private lab for testing. Two slides from pubic hair combings of the victim were
obtained which contained hairs inconsistent with both the victim and the petitioner. The petitioner
submits that, in light of evidence that Pulley was a virgin prior to her rape and murder, trial counsel
should have discovered this “extremely exculpatory evidence” and used it to establish reasonable
doubt as to his guilt in the Pulley case. The State responds that the forensic report upon which the
petitioner relies notes that hair evidence is easily transferred. Considering that Pulley lived in a
house with two roommates whose hair was not submitted for sampling, the State submits this
evidence is not dispositive of the petitioner’s innocence of the Pulley rape.
The report of Forensic Science Associates, upon which the petitioner relies, was dated
January 20, 1998, the month following the conclusion of the post-conviction hearings in this matter.
Thus, no witness testified as to the contents of the report. According to the report, of five hairs on
two of the microscope slides with pubic combings of Karen Pulley, one hair on each slide could not
be “associated with any of the individuals for whom reference samples were submitted.” These
individuals included both Karen Pulley and the petitioner. In the “Discussion” portion of this report
are a number of qualifiers and caveats. First, we note that the report does not define its usage of the
word “associate.” It does state, however, that:
In order to be relevant to an investigation, an evidence hair (that
is, one recovered from a crime scene, from the clothing of victims or
suspects, etc.) must be shown to be related to the incident under
investigation. Since hairs are ubiquitous in the environment, degrade
very slowly, and are easily inadvertently picked up, transferred, or
-38-
shed, a loose hair is of relatively little significance without some
independent knowledge that it is related to the incident being
investigated. If it is possible to infer from the location of the hair, the
circumstances of its recovery, and the nature of the hair itself that the
hair is related to the incident being investigated, then the hair may be
relevant to the investigation.
When asked about the hair samples during the post-conviction hearing, senior trial counsel
pointed out that there were a total of three young women living in the house. In fact, the evidence
showed that Karen Pulley lived with two other young women whose hair was not compared with the
two unknown hairs. The record does not reflect what the laundry arrangements were for the three
women or explore the other ways in which a hair could have been transferred to Karen Pulley.
Accordingly, we consider the findings of this report as not to “exclude [the petitioner] as the person
who raped and murdered Ms. Pulley.”
d. Alibi in Case Not Included in Post-Conviction Petition
The petitioner was also charged with the rape of T.M. in Tiftonia, Tennessee. Although that
case is not among those on appeal in this proceeding, post-conviction counsel submitted evidence
at the post-conviction hearing that the petitioner was physically present at work at the Godfather’s
Pizza store in Red Bank, Tennessee, at the time of the T.M. rape. The petitioner argues that trial
counsel, who represented him in connection with all of the various offenses for which he was
charged, thus missed solid alibi evidence with respect to the T.M. case which, if discovered, should
have led them to question the reliability of his other statements, including, in particular, his
confession to the Pulley rape and murder. However, we note that T.M. identified the petitioner as
the man who raped her, and the proof of alibi claimed by the petitioner must be measured against
that identification as well as the fact that he confessed to raping T.M.
The petitioner gave a statement to Detective Sivley of the Chattanooga Police Department
regarding the attempted rape of T.M.:
SIVLEY: Okay, tell me about that.
NICHOLS: That’s where I entered the back door, broke the window.
SIVLEY: You had to force your way in?
NICHOLS: Um huh.
SIVLEY: Okay, so you broke a window? Was there a screen there
on the window?
NICHOLS: There was, yeah.
-39-
SIVLEY: Did you tear it off?
NICHOLS: Yeah. Pulled the screen off, broke the window, went
into that door. She was in the shower.
SIVLEY: Did you know she was in the shower before you went in[?]
Were you watching her?
NICHOLS: Yeah. Yeah.
SIVLEY: Okay, you saw her go into the shower?
NICHOLS: No, no, I just seen her in, in the shower.
SIVLEY: Looked inside and saw her in the shower?
NICHOLS: Yeah.
SIVLEY: Okay.
NICHOLS: And uh I got a knife out of the kitchen and then
SIVLEY: What kind of knife was it? Butcher knife, steak knife?
NICHOLS: Big knife.
SIVLEY: Big knife. Where was it at in the kitchen?
NICHOLS: Uh, kitchen drawer, I think . . . and when she come out
of the shower, well . . . I surprised her and she scuffled with me and
I hit myself with the knife and that’s what all happened.
SIVLEY: Did you notice if she was cut also?
NICHOLS: No, I didn’t.
SIVLEY: Where were you cut at?
NICHOLS: Just below the eye.
SIVLEY: Is that, uh . . . looks like there is a mark right below your
right eye. Is that what happened there?
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NICHOLS: Yes.
SIVLEY: Okay, did you notice that you bled as you went out? Were
you bleeding, did you
NICHOLS: I
SIVLEY: feel yourself bleeding?
NICHOLS: was bleeding. I knew I was bleeding.
Junior trial counsel testified as to their investigation of the offenses and possible alibis.
When asked about a possible alibi for the T.M. rape, she said:
[Senior trial counsel] and I spent a lot of time on these times of
the offenses for a couple of reasons. One was, with no meant
disrespect to the police officers, but so many of these crimes
happened in the early hours of the morning after midnight that what
we found is that the officers would get sort of mucked up when they
were doing their timing, you know, they would sometimes put – like
say if it was on the 20th but it was at one a.m., they would put one
a.m. on the 20th or one a.m. on the 21st, you’d have two different
dates on different things.
In fact, one of the cases that we tried, the rape cases that we tried,
and I don’t remember which of the two victims it was, but on one of
those cases we spent about three hours of the court’s time at the initial
– when we got ready to begin the trial, arguing, complaining because
the state had made one of those mistakes, the officers had made one
of those early in the morning date transpositions and then on the
morning of trial [the prosecutor] tried to correct it, but they made
another clerical error in that correction, so we jumped on that and,
you know, gave them a very hard time about that as we were
supposed to and as we wanted to, although we were fairly confident
that the actual time of the offense, we knew when it was and, of
course, we lost that motion, but we were well aware of those time
discrepancies in some cases.
Now, again, I can’t tell you exactly what happened in [T.M.].
Another thing that we were aware of is that Wayne was clocked in
some of the times that some of the rapes were supposed to have
occurred, but I talked to Wayne about those things and all of those –
and I can’t tell you what the answer was on [T.M.] because I just
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don’t recall that particular one, but Wayne and I talked about a lot of
time things.
There was one, and it may have been [T.M.], where he
supposedly could not have done it according to his wife. Well, I
spent many, many hours talking to Joann and to Wayne about this
time thing and was this really a defense we had and it turned out it
wasn’t, and again I don’t remember why. It was either he was
clocked in but he had gone to deliver a pizza.
Another one of them Joann said he was in bed with her but when
we questioned her carefully and talked about it she remembered she
woke up that night and Wayne was gone, she figured he was in
watching TV and woke up a couple hours later and went back and he
was not in the living room watching TV, so she said, “Oh, yeah,
that’s right, he wasn’t there that night.”
So there were things like that that we looked at and tried to
ascertain if they would be helpful and they weren’t, none of them
turned out other than this one we were able to argue the morning of
trial which ultimately we lost, turned out to be helpful.
This testimony demonstrates that trial counsel did consider and investigate whether the
petitioner had alibis for the offenses and was aware that at least one had occurred when the petitioner
was “clocked” in at work, but had left to deliver a pizza. Based upon conversations with the
petitioner and his wife, counsel determined that alibi defenses could not be supported.
e. Pistol Found in Petitioner’s Vehicle
The petitioner has also alleged that counsel were ineffective for failing to investigate the
“discrepancy” in the description of a pistol found in the trunk of his automobile. According to the
petitioner’s brief, the only pistol “associated with any of the rapes was a blue steel revolver.”
According to the property sheet prepared by Officer Bryson, the pistol was an “Auto SST.”
As set out in the offense report, S.T. told officers that she had been raped by a man who
entered her apartment and, apparently, stole from her a “38 revolver.” The petitioner pled guilty to
the rape of S.T. During the trial court’s questioning of the petitioner, prior to the acceptance of his
guilty pleas, the court asked if the petitioner was satisfied with the representation which he had
received from his attorneys. He responded that he was, that they had not left undone in the case
anything that he wanted them to do, and that he believed there was a basis upon which a jury could
find him guilty in the matter. The prosecutor then outlined the State’s proof. He said that officers
had received information that the petitioner was a “possible suspect” in the case and had S.T. come
and view photographs, from which she identified that of the petitioner as being her assailant. The
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prosecutor further stated that the petitioner subsequently gave a tape-recorded statement of admission
as to the rape of S.T. and that he signed a consent to search. Upon searching his vehicle, officers
found S.T.’s .38 caliber revolver and a knife used by the petitioner in the attack. According to the
prosecutor, S.T. identified both the pistol and the knife. Subsequently, officers took the petitioner
to the apartment complex, and he pointed out the apartment of S.T.
The petitioner points to an apparent discrepancy in the records as to whether the pistol
recovered from his automobile was, in fact, a .38 revolver. He argued in his brief that, “objectively
reviewing” his attorneys’ advice that he plead guilty in the S.T. case, they should not have done so
because the pistol seized from his automobile did not match the one taken from S.T.
In support of this allegation, the petitioner relies upon testimony from the post-conviction
hearing. Dwight Short, an employee of Inter Arms, which imports, manufactures, and sells firearms,
testified at the post-conviction hearing that, in his experience, “auto” would refer to a semi-automatic
weapon and “SS” would mean that the weapon was made of stainless steel. He was unsure of what
a “T” would designate. He said that he would not expect to find the designations “auto” and “SS”
on a blue steel revolver, which was supposedly imprinted upon a pistol recovered from the
petitioner’s vehicle. However, upon cross-examination, Mr. Short, who had not been shown the
actual pistol in question, testified that he had traced the serial number which had been supplied to
him, presumably for the weapon recovered from the petitioner’s vehicle, and found it was for a
“three-inch .38 Rossi revolver with a blue finish.” Thus, the upshot of this testimony appears to be
that the property receipt for the recovered pistol referred to it as being an “Auto SST,” while,
according to the serial number recorded for it, the pistol was a “three inch .38 Rossi revolver with
a blue finish.” S.T. had told officers that the rapist had taken a .38 revolver from her residence.
Regarding the pistol, senior trial counsel testified that he remembered “something
contradictory” about a weapon in one of the cases, and “[t]hat was an issue that we worked on.”
Although the testimony of junior trial counsel was not entirely clear on this point, she testified that
the “gun that [post-conviction] counsel talked about was found.” She also testified that the
prosecution had tried to use the alleged value of the pistol “to try to make it a higher offense for the
theft,” but the trial judge had given her “permission to get the gun and take it out and have it
appraised, which [she] did at Clark’s Guns.” Thus, the record shows that trial counsel had been
aware of the issue as to the pistol recovered from the petitioner’s vehicle and had investigated it. We
note that the pistol, apparently, would have been evidence only as to the rape of S.T., to which the
petitioner pled guilty. In that case, the petitioner had confessed.
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f. Other Suspects
As part of his claim that trial counsel were deficient for not investigating “critical evidence,”
the petitioner argues that they could have established reasonable doubt through some of the other
persons investigated for the rapes. However, the record shows that trial counsel dealt with this issue
in their representation of the petitioner.
During a hearing on January 4, 1990, apparently to determine whether the petitioner’s trial
counsel had received all of the exculpatory evidence, his senior trial counsel questioned Sergeant
Buck Turner regarding identifications, apparently by two or more of the victims, of a “Mr. Coats.”
Additionally, during the trial involving the rape of P.R., she was questioned during direct
examination by the prosecutor regarding whether she had identified “Coats” as the rapist. She said
that she had looked at his photograph, and there were a “lot of his features” which were like those
of the man who had raped her. However, when she saw him several days later in a lineup, she told
police officers that he was not the one. Later, at the East Ridge Police Department, she viewed a
series of photographs, one of which was that of the petitioner, and identified him as the rapist.
Additionally, she made an in-court identification during the trial of the petitioner as the man who had
raped her. Although the petitioner criticizes his trial counsel for not questioning P.R. about her
identification of Coats, the fact is that the “misidentification” had already been brought out on direct
examination by the prosecutor. P.R. also testified that, before she was raped, the petitioner had
threatened to kill the three young children who were sleeping in the apartment if she did not submit
to him. Thus, under the circumstances, it is debatable whether it would have been in the petitioner’s
best interest to cross-examine P.R. about a misidentification which she had already explained during
direct examination.
During the post-conviction hearing, senior trial counsel testified that he was fully aware of
the “Coats’ [sic] matter.” Junior trial counsel testified that she checked the records of some of the
persons who had been investigated regarding the rapes, but she “never thought or had any reason to
believe” that Redwine, one of the suspects named by the petitioner, had raped and murdered Karen
Pulley. She said that she had discussed the other suspects with Sergeant Heck and corroborated the
information from him when necessary.
The post-conviction court, with respect to this portion of petitioner’s claim that trial counsel
were ineffective for not investigating whether his confessions were false, made the following
findings as to the noncapital cases:
[B]oth trial counsel and investigator Cohan stated that any issue
related to actual innocence was not plausible. The petitioner gave
them all detailed statements concerning his involvement in the cases.
Trial counsel stated that on the one case where the petitioner claimed
he did not commit the offense charged, he was telling the truth and
they were able to get the charges dismissed. Trial counsel further
stated that there was not any evidence which would have established
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any “reasonable doubt” and that if there had been they would have
pursued it. After thoroughly reviewing the records, this court finds
that petitioner has not carried his burden of proof on this issue by
establishing that there was sufficient evidence of actual innocence
that counsel’s actions were deficient or otherwise sufficiently
prejudiced the defense.
As to the capital case, the post-conviction court made a similar finding:
Trial counsel and investigator Cohan testified that any allegation
that counsel should have more fully researched the possibility of a
false confession was “ludicrous.” The petitioner gave very detailed
statements to trial counsel separate from his statements given to the
police. Trial counsel testified that they thoroughly discussed the
options available with the petitioner and that the petitioner
understood that his confessions would be very damaging evidence at
the guilt phase. They advised him that if he entered a guilty plea and
took responsibility for his actions that the jury might take this into
consideration in the penalty phase and not impose the death penalty
despite the obviously weighty aggravating factors. Under all the
circumstances, the decision to plea [sic] was a strategic decision
which will not now be questioned using 20-20 hindsight. It is also
noted that counsel’s time records “speak for themselves” as to the
substantial amount of time expended by counsel on this case. These
issues have no merit.
In support of his claims regarding ineffective assistance of counsel, the petitioner relies on
several cases. First, in Baylor v. Estelle, 94 F.3d 1321 (9th Cir. 1996), cert. denied, Duncan v.
Baylor, 520 U.S. 1151, 117 S. Ct. 1329, 137 L. Ed. 2d 489 (1997), the defendant, Baylor, had been
charged with sexual and related offenses as to two victims. Neither of the victims had identified
him, and no physical evidence tied him to the crimes. He had given a detailed confession on tape
to a police officer who testified at the trial. However, at the trial, the defendant testified, recanting
his confession, and offering an alibi, which was corroborated by his wife as to the first victim.
Several months prior to the trial, a sheriff’s department criminologist had issued a report
which concluded that the results of tests comparing blood and saliva samples from the defendant
with seminal fluid from the first victim and semen stains from the clothing of the second victim
“would tend to eliminate” the defendant as the semen donor because he was a secretor and the semen
obtained in each case was from a nonsecretor. Id. at 1323. The report also said that there was a
“possibility that [the defendant] mimic[ked] a nonsecretor and that this theory could not be tested
without a liquid semen sample from [the defendant].” Id. Defense counsel knew of the report before
the trial but neither followed up on it with the serologist nor had the defendant tested by another
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expert. Counsel did not try to subpoena the criminologist until the trial was underway, and found
that the witness was on vacation and unavailable.
Following his convictions on all counts, the defendant filed a petition for writ of habeas
corpus, first in the state court and then in the federal court. A federal magistrate ordered serological
testing of the defendant’s seminal fluid. The result of that test, interpreted by both a defense and an
independent expert, was that the semen on the vaginal swabs from the first victim was genetically
incompatible with that of the defendant. The author of the original report testified at the evidentiary
hearing as to the caveat in his report that had been available at the time of trial that “there was only
a 5% likelihood that a secretor would mimic a nonsecretor.” Id. at 1324. From all of this, the court
concluded that the defendant had not received effective assistance of counsel at trial.
As for the prejudice prong, the court noted the State’s argument that the defendant related
facts in his confession which were previously unknown to the victims or the investigators, namely
that he had removed five bullets from a pistol at the first victim’s house and had hidden them under
the cushion of a large chair in the living room. These bullets were not discovered until after the
defendant told of their location. However, the court stated that its confidence in the trial’s outcome
was shaken by the laboratory reports that eliminated the defendant as the donor of semen found on
the first victim. Further, the court agreed with the district court’s findings that since all convictions
were based upon the same confession, reasonable doubt as to the defendant’s guilt of the first offense
would have created doubt as to his guilt of the second. Accordingly, the court concluded that the
defendant had established that he had been prejudiced by the ineffective assistance of counsel.
The Baylor holding is readily distinguishable from the matter that we have under
consideration. First, unlike Baylor, who recanted his confession and presented an alibi defense,
which was corroborated by his wife as to one victim, the petitioner, even post-trial, continued to
affirm that his confessions were true. Also, unlike Baylor, who was not identified by either victim,
the petitioner was identified as the rapist in both of the noncapital cases that were tried, by the
victims P.G. and P.R. Unlike the additional serology evidence presented in Baylor, the only such
proof shown on behalf of the petitioner was the testimony of Mr. VanSant, who testified as to work
of other serologists and only as to two of the victims. As we have previously discussed, his
testimony did not exclude the petitioner as the rapist of Karen Pulley or T.R. The opinions offered
by Mr. VanSant are simply not exculpatory, as was that of the serologist in Baylor. Further, we note
that there were no claims as to exculpatory scientific evidence made as to the rapes of P.G., P.R., or
S.T.
There are other important distinctions between these cases. In Baylor, subsequent testing of
the defendant by two experts had “excluded [him] as the donor of the semen found on the first
victim.” Id. at 1324. The results of these subsequent tests caused the court’s “confidence in the
outcome of the trial [to be] shaken.” Id. Although the petitioner has argued that the serology test
results from the time of his trials eliminate him as the rapist of Karen Pulley and T.R., we do not
agree, as we have previously explained. While it can be claimed, as the petitioner has done, that the
serology test in the Pulley matter, on its face, would appear to exclude him, we note that even though
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serology experts were available at the time of the post-conviction hearing, including the author of
the report upon which the petitioner relies, no expert testified that, in fact, the results of that test
excluded the petitioner. In light of this, taken with the fact that the petitioner continued to admit his
guilt of the crimes, our confidence in the outcome of the proceedings is not “shaken.”
In Charles Dwayne Prince v. State, No. 01C01-9102-CC-00058, 1992 WL 127439 (Tenn.
Crim. App. June 12, 1992), the next case cited by the petitioner, Prince had been charged with
aggravated rape. However, unlike the petitioner, he had not confessed to the crime. The victim had
picked Prince from a photo lineup. She admitted that she was “somewhat acquainted” with the
defendant, but had denied he was the rapist when confronted with him at the police station. Id. at
*1. Additionally, she had described the rapist as having blonde hair, and the proof showed that
Prince had brown hair.
At the trial, a serologist had testified that results of the test comparing a semen sample from
the victim with the defendant’s secretions were inconclusive. However, at the hearing on the petition
for post-conviction relief, another serologist testified that, in her opinion, trial counsel for the
defendant had not sufficiently questioned the trial expert witness regarding the testing of the
samples. She opined that the semen sample from the victim could not have come from the
defendant. Thus, there was the unequivocal statement of an expert witness that the results of a
scientific test eliminated Prince as the rapist. There is no such report here. Additionally, unlike the
petitioner, Prince had not confessed to the crime.
Also cited by the petitioner is Sims v. Livesay, 970 F.2d 1575 (6th Cir. 1992). In Sims, the
defendant’s wife died from a single gunshot wound to the chest, which occurred in the bedroom of
her home. The defendant told police officers that he had been in another room, heard his wife fire
a pistol twice, went into the bedroom, and, as he grabbed the gun and tried to hold it away, it
discharged, killing his wife. On the bed where his wife was shot was a quilt which had three bullet
holes in it.
The State’s theory was that the defendant shot his wife as she sat naked on the bed, and that
he was at a distance from her, not struggling with her as he claimed. The State pathologist testified
that the victim’s wound was “clean” and that if she had been holding the pistol as it was fired, there
would have been tattooing around the wound. According to the State’s theory, the gunshot residue
on the victim’s hands came from her holding up her hands in self-defense as her husband fired the
shot at her. The quilt with the three bullet holes was not offered into evidence or even examined by
the State pathologist.
At trial, the defendant again said that the shooting was accidental and occurred as the parties
struggled for the pistol. The defense presented as a witness a TBI agent who said that the victim
could have fired the fatal shot, but did so with her left hand although she was right-handed. The
victim’s right hand had a relatively low concentration of gunshot residue. Defense counsel did not
have this expert examine the quilt, and there was no testimony regarding it.
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Following his conviction and subsequent unsuccessful appeals, Sims filed a petition for post-
conviction relief, claiming that defense counsel should have retained an expert to examine the
evidence and determine if the quilt was between the victim and the pistol when the shot was fired,
which would have explained why the victim’s wound was clean and undermined the State’s claim
that the wound was clean because the victim was shot from a distance.
At the post-conviction hearing, two experts testified. The first, a forensic firearms examiner,
said that the slug that killed the victim probably passed through the quilt, which would have
prevented powder residue from being deposited around the area of the wound. He also noted that
there were “butterfly patterns” around the holes in the quilt, indicating that the quilt was around the
pistol when one shot was fired, was almost around the pistol during the second shot, and in less
contact for the third shot. Id. at 1578. The upshot of his testimony was that the presence of the quilt
had to be considered in ascertaining the distance between Mrs. Sims and the pistol as it was fired.
The second expert witness, who was the chief medical examiner for Atlanta, confirmed the testimony
of the first. Additionally, he said that the gunshot residue test done on the victim’s hand indicated
that she could have fired the fatal shot herself and that the other two shots, which were not fired into
her body, could have been “hesitation or test shots,” which were not atypical in cases of suicide. The
second expert concluded his testimony by saying that the evidence suggested “strongly the possibility
that it was either an accident or she intentionally tried to take her life and did so.” Id.
The court noted that, prior to the trial, defense counsel had an FBI report which stated there
was gunshot residue on the quilt. From all of this, the court concluded that defense counsel’s failure
to have a defense expert examine the quilt prior to the trial, or even argue to the jury that the quilt
was between the pistol and victim, was not reasonable, and was, in fact, negligence. Accordingly,
the court ordered a retrial of the matter.
Both factually and proof-wise, Sims is substantially different from the matters which we have
under consideration. Here, the duty of petitioner’s trial counsel to utilize scientific tests was shaped
by his numerous and continuing confessions to the offenses charged.
Thus, these cases are not supportive of the petitioner’s claims of ineffective assistance of
counsel.
We will now examine cases which have considered post-conviction claims similar to those
of the petitioner. The court, in Mueller v. Angelone, 181 F.3d 557 (4th Cir. 1999), cert. denied, 527
U.S. 1065, 120 S. Ct. 37, 144 L. Ed. 2d 839 (1999), considered the habeas corpus petition of
Mueller, who had confessed on videotape to the rape and murder of a ten-year-old girl, for which he
was convicted and sentenced to death. Mueller had claimed that his trial attorneys had not satisfied
Strickland’s performance prong because they had failed “to investigate and present evidence of his
susceptibility to giving a false confession[.]” Id. at 579.
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Noting that Mueller “until shortly before trial, consistently admitted his guilt to his attorneys
and maintained to them that his confession was truthful,” id., the court, applying the objective
reasonableness standard of Strickland, concluded:
We cannot say, then, that it was objectively unreasonable for counsel
to opt not to expend investigative energies and resources on their
client’s susceptibility to false confession where the client had assured
them that his confession was true. See Strickland, 466 U.S. at 691,
104 S. Ct. [at] 2052.
Id. Citing Barnes v. Thompson, 58 F.3d 971, 979-80 (4th Cir. 1995), the Mueller court noted the
difficulty that counsel would have had in pursuing a “trial strategy on evidence of defendant’s
susceptibility to false confessions when the defendant himself had admitted the truthfulness of his
confession and his sole responsibility for the crime.” Id.
The Mueller court concluded that the petitioner failed to demonstrate that his trial counsel
had a constitutional obligation to attack his confession as being false:
Even if we were persuaded that Mueller’s trial counsel might
have profitably pursued such “leads,” petitioner has not satisfied his
burden of demonstrating that their failure to do so fell outside the
wide range of reasonable professional assistance. In fact, petitioner
has not cited a single case in which trial counsel, charged with
representing a defendant who had confessed to the crime not only on
videotape but to counsel themselves, nonetheless pursued a “false
confession” line of defense. Trial counsel in this case did what
reasonable attorneys are wont to do when their client has confessed
on videotape to the grisly details of a heinous crime – they moved to
suppress. We decline to hold that trial counsel were under any
constitutional obligation, when that motion was unsuccessful, to
attack as false a confession their own client had acknowledged was
true.
Id. at 579-80.
Finally, the court concluded that Mueller did not establish prejudice allegedly resulting from
trial counsel’s inactions:
In any event, even were we to find that counsel’s performance
fell below an objective standard of reasonableness, we can identify no
prejudice under Strickland from their failure to investigate and pursue
this “lead.” In our view, evidence of Mueller’s alleged susceptibility
to false confession would have been very unlikely to lessen the
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impact of the defendant’s own confession and his ability, after thus
unburdening himself, to lead the police to the very area where
Charity’s body was found.
Id.
Likewise, in Thomas v. Taylor, 170 F.3d 466 (4th Cir.), cert. denied, 527 U.S. 1016, 119 S.
Ct. 2361, 144 L. Ed. 2d 254 (1999), the Fourth Circuit Court of Appeals held that trial counsel had
not been ineffective for failing to pursue whether the defendant’s confession was false, when he had
consistently told counsel that it was true. The defendant, who was then seventeen years old, had
plotted with his girlfriend, age fourteen, to kill her parents because they had been threatening to end
the relationship. He took a shotgun loaded with buckshot, entered the victims’ house through their
daughter’s bedroom window, and spoke with her, pausing briefly to smoke marijuana. He then went
to her parents’ bedroom and shot her father in the head at close range, killing him instantly. Next,
he shot her mother “in the head, essentially destroying the left side of her face.” Id. at 469. He then
returned to his girlfriend’s bedroom. Her mother, even with the gruesome injury, walked to her
daughter’s bedroom to ascertain her child’s condition. Upon seeing her mother in the doorway, the
daughter said to the defendant, “Oh, God, Chris, please shoot her again.” Id. The defendant obliged,
killing the mother instantly as he shot her again in the head with the shotgun. Subsequently, the
defendant confessed to both murders and repeatedly told his trial counsel that he had fired the second
shot which killed the mother of his girlfriend. He pled guilty to the murder of the father, for which
he received a sentence of sixty-seven years. He pled not guilty to the murder of the mother, but was
convicted of this offense and sentenced to death.
Subsequently, he filed a petition for writ of habeas corpus, alleging, inter alia, that trial
counsel was ineffective for not investigating and presenting evidence that his girlfriend had fired the
fatal shot that killed her mother. In his petition, he claimed that, although he had told his court-
appointed psychological expert that he did not fire the second shot, his attorney did not adequately
pursue this lead.
The court noted that he had repeatedly told trial counsel that he had fired both of the shots
that killed the mother. When they confronted him with his statement to the psychological expert that
he had fired only the first shot, and “begged [him] to come clean,” he again told them that he had
fired both of the shots. Id. at 471. Citing the language in Strickland that the “reasonableness of
counsel’s actions may be determined or substantially influenced by the defendant’s own statements
or actions,” 466 U.S. 668, 691, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674 (1984), the court concluded
that counsel was not obligated to investigate further whether the defendant had fired the second shot.
The claims of the petitioner appear to be unusual among those cases asserting ineffective
assistance of counsel resulting from failure to investigate whether confessions are “false,” for, unlike
other such claimants, he did not, at the time of trial or subsequently, assert that any of his confessions
were false. Rather, even post-trial, he confessed to both Karen Pulley’s mother and to his uncle, and
reiterated to Dr. Solovay, who interviewed him to prepare for the post-conviction hearing, that he
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was guilty of the offenses and willing to plead guilty. Thus, it is difficult to envision, and requires
some imagination upon our part, exactly what could have been achieved had trial counsel
“investigated” his confessions, as he claims should have been done.
It is argued in the petitioner’s brief, as a conclusion to a discussion of the various reasons
why a “false confession” defense should have been presented, that “[h]andled properly, a ‘false
confession’ defense would be a no downside defense, especially in light of other exculpatory
evidence.” We disagree with this conclusion. Even assuming that there could have been a “proper”
way to present a “false confession” defense, it is arguable that the presentation of the defense could
have opened the door to the State’s presenting proof of charges against the petitioner which had not
been resolved at the time of the Pulley trial. A substantial part of the post-conviction claim is to
stress the importance of the “time line” of the petitioner’s being arrested and subsequently confessing
to law enforcement officers. Given the claims regarding coercion, “cueing” as to the facts, and
holding the petitioner in custody for a lengthy period, the State could argue, in response to a “false
confession” defense, that the claim had made relevant a complete time line of the period of his arrest,
which included multiple confessions to attacks upon ten women, directing officers to the place where
a two-by-four was found and pointing out the apartment of one of the rape victims.
In Campbell v. Vaughn, 209 F.3d 280, 282 (3rd Cir. 2000), cert. denied, Campbell v.
Johnson, ____ U.S. ____, ____ S. Ct. ____, ____ L. Ed. 2d ____, 2001 WL 12752 (2001), also a
post-conviction proceeding, the defendant had confessed to shooting and killing a motorist who was
stopped at a traffic light. The defendant and his brother waited at a freeway off-ramp for the victim
to drive up, pulled him from his car when he stopped for the light, and then shot and killed him. The
defendant’s brother jumped into the victim’s car and drove off with the victim’s four-year-old
daughter still in the passenger seat. When the victim’s wife, who had been following in another car,
drove up, the defendant grabbed her purse, struggled with her, and then fled. She ran to her
husband’s car, which had been immobilized by ice, and convinced the defendant’s brother to release
her child. The defendant was later tried, convicted of second degree murder and other charges, and
sentenced to life imprisonment plus consecutive terms for the other offenses. He filed a petition for
writ of habeas corpus, claiming, inter alia, that his trial counsel had incorrectly advised him as to
testifying at the trial. Denying the claim, the federal court concluded as to the finding of the state
court that counsel had not been ineffective in this regard: “[t]he Court reasoned, appropriately, that
Campbell’s trial counsel did not render ineffective assistance by warning him that if he were to take
the witness stand and recant his remorse-filled confession, he would likely alienate the jury. If
anything, this was sound advice.” Id. at 291. Although the opinion in Campbell does not explain
what additional defense proof might have been shown if the defendant had recanted his confession,
it illustrates that to do so may have a deleterious effect.
In determining whether the petitioner has satisfied either of the two prongs required by
Strickland, we will first consider the situation in which trial counsel found themselves at the time
of the petitioner’s trials. The petitioner had given multiple confessions to the offenses with which
he was charged. Regarding the most serious of the charges, the rape and murder of Karen Pulley,
his confession was over an hour in length and was videotaped. As previously set out, we have
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viewed the videotape of this confession and conclude that it would have been very dramatic and
powerful evidence of the petitioner’s guilt as to that crime. He appeared to be genuinely moved as
he told of attacking Karen Pulley. The petitioner’s statements to both trial counsel, as well as their
investigator, were consistent with his confessions to law enforcement officers. Trial counsel’s
motion to suppress the confessions was unsuccessful. The petitioner has not attempted to explain
how, in view of his continuing to assert that the confessions were true, trial counsel could have
effectively presented a “false confession” defense. There was not, and has never been, a showing
that the petitioner was susceptible to suggestions and pressure and might have been led into giving
false confessions. In fact, had trial counsel tried to present such a claim, they would have been
confronted by proof showing that the petitioner was twenty-eight years old and married, with three
previous felony convictions and time spent in the Tennessee prison system. Thus, he could not have
claimed youth and inexperience as reasons for falsely confessing. The testimony of trial counsel at
the post-conviction hearing showed that they had considered and weighed against the impact of the
confessions, especially that on videotape, most of the various defenses which the petitioner now
claims should have been raised. The proof shows that trial counsel and their investigator spent a
substantial number of hours preparing for the charges brought against the petitioner and investigating
possible defenses. Considering all of the facts and circumstances, we simply cannot conclude that
no competent counsel would have elected to defend these matters as did petitioner’s trial counsel.
Applying the Strickland holding that we must “evaluate counsel’s challenged conduct at the
time” the decisions had to be made, that we must “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” 466 U.S. at 689, 104 S.
Ct. at 2065, and that in challenging counsel’s conduct a petitioner must show that “no competent
counsel would have taken the action,” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir.
2000), petition for cert. filed (U.S. Oct. 19, 2000), we conclude that the petitioner has failed to show
that his trial counsel did not perform within the range required of attorneys in criminal cases.
Additionally, we conclude that the petitioner has failed to satisfy the second prong of the
Strickland test by not showing a reasonable probability that, but for the alleged attorney
shortcomings, the result would have been different. His initial confessions and the additional proof
gave the prosecution substantial cases against him. Even assuming that trial counsel could have
presented a false confessions/reasonable doubt defense, as he now claims should have been done,
it is very uncertain that the outcome would have been different. However, he argues that, by
presenting proof of innocence, he “demonstrated the requisite prejudice.”
Specifically, in his reply brief, the petitioner claims that he has “stated unequivocally” that
had he not received ineffective assistance of counsel, he would not have pled guilty to the rape and
murder of Karen Pulley, by quoting language from his pro se petition: “Had counsel performed in
accordance with their duties under the United States and Tennessee Constitutions, I would not have
pleaded guilty to first degree murder, aggravated rape and first degree burglary. . . .” A petitioner
cannot utilize a conclusory statement such as this in a post-conviction petition to satisfy the second
prong of Strickland and, thus, shield himself from questioning by the State. Such a tactic is inimical
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to achieving “[f]airness in the judicial process,” as recognized in Bryan v. State, 848 S.W.2d 72, 81
(Tenn. Crim. App.), perm. app. denied (Tenn. 1992).
The petitioner has failed to show that the outcome would have been different in the Karen
Pulley, P.G., or P.R. trials had trial counsel defended the cases by claiming that his confessions were
false and by making the various other arguments which he feels would have established reasonable
doubt. We cannot conclude that the juries in these cases would have agreed that there was
reasonable doubt as to his guilt, in light of his detailed confessions, including the lengthy, detailed,
emotional videotaped confession he provided in the Karen Pulley case.
The position in which petitioner’s trial counsel found themselves at trial was similar to that
of defense counsel in Ames v. Endell, 856 F.2d 1441 (9th Cir. 1988). Ames had been in a pickup
truck which collided with a transport truck carrying a fifty-ton backhoe. All four of the persons in
the pickup were thrown out, and one of them, James Boyle, the defendant’s boss and owner of the
truck, died as a result of the accident. At the hospital, the defendant smelled strongly of alcohol, and
his blood alcohol level was found to be .17 percent. An emergency medical technician asked the
defendant who had been driving, and the defendant replied that he had been the driver. However,
a short time later, he told a state trooper that he had not been driving and was unable to remember
the name of the driver. Following his indictment six weeks later, he told a state trooper that James
Boyle, the deceased, had been driving at the time of the accident. This contrasted with statements
of a witness who, prior to the accident, had seen the defendant entering the driver’s side of the truck,
with the three passengers entering on the passenger side, and with the testimony of the deceased’s
wife who said that she had been sitting in her husband’s lap. She had also said that her husband did
not allow strangers to drive the truck. The fourth person in the truck was a stranger, Rodney Hardy,
who was being given a ride. There was also proof that, because of eye problems, James Boyle did
not drive.
At his trial, Ames had agreed with his attorney that he would not testify and would not
contest that he had been driving and was the driver at the time of the accident. However, the defense
would contend that Ames had not been substantially impaired by the alcohol but had been blinded
by the sun just before the accident and that there was failure of the truck’s brakes. Defense witnesses
testified as to the angle of the sun at the intersection, and others testified they had been blinded by
the sun at the intersection minutes before the accident. Additionally, an expert in auto mechanics
testified that the brakes on the pickup were in bad condition.
Following his conviction for manslaughter, Ames, with new counsel, sought a new trial,
claiming, inter alia, that trial counsel had been ineffective for failing to adequately investigate the
case and not presenting as a defense that he had not been driving the truck at the time of the accident.
Following an evidentiary hearing and an adverse ruling, Ames, now represented by a third lawyer,
appealed his conviction. Counsel then representing the defendant retained an accident reconstruction
expert who provided a letter which “concluded from the position of the bodies after the accident that
there was ‘a very good chance that Rodney E. Hardy [the stranger being given a ride] was driving
the vehicle.’” Id. at 1444. Following unsuccessful attempts to obtain relief from the Alaska Court
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of Appeals and the Alaska Supreme Court, Ames filed a habeas corpus petition in federal court,
which was unsuccessful at the district court level. Concluding that Ames had received effective
assistance of counsel, the court on appeal explained trial counsel’s duty to investigate the facts:
Even if Gordon [trial counsel] assumed that Ames’ admission to the
emergency medical technician was the babble of a man in shock,
Gordon still had no reason to believe that Ames could testify who was
driving. He was under no constitutional obligation to put Ames on
the stand to commit perjury. Nix v. Whiteside, 475 U.S. 157, 106 S.
Ct. 988, 89 L. Ed. 2d 123 (1986). He was under a professional
obligation not to do so. Alaska Code of Professional Responsibility
DR 7-102(A)(4) (1982). At best, Ames as a truthful witness could
have testified he did not know. The defense that he was not at the
wheel would have had to rest on a hypothetical construction by a paid
expert whom the jury would have had to believe rather than concrete
convergent evidence pointing to Ames as the driver.
Id. at 1444-45.
Counsel in the case before us were in a similar situation in that, in view of the petitioner’s
confessions, they would have had to depend upon expert witnesses, assuming that such proof would
have been available, to demonstrate the confessions were false and to contend with ethics rules as
to how to deal with the petitioner’s continuing position that the statements were true. Considering
this, as well as the fact that the petitioner failed to present evidence at the post-conviction hearing
as to what additional evidence would have been obtained by investigating whether his confessions
were false, we conclude that he has failed to establish the prejudice prong of the Strickland test, that
but for “counsel’s unprofessional errors, the result of the proceeding would have been different.”
466 U.S. at 694, 104 S. Ct. at 2068; see Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995),
cert. denied, 517 U.S. 1111, 116 S. Ct. 1335, 134 L. Ed. 2d 485 (1996) (“Absent an account of what
beneficial evidence investigation into any of these issues would have turned up, Hendricks cannot
meet the prejudice prong of the Strickland test.”); United States v. Ashimi, 932 F.2d 643, 649 (7th
Cir. 1991) (stating that a petitioner cannot establish prejudice without showing “what the attorney
would have discovered after ‘adequate’ investigation”).
Additionally, in the cases involving the rapes of T.R. and S.T., both of which resulted in
guilty pleas by the petitioner, there are additional required showings which he failed to make. “In
cases involving a guilty plea or plea of nolo contendere, the petitioner must show ‘prejudice’ by
demonstrating that, but for counsel's errors, he would not have pleaded guilty but would have
insisted upon going to trial.” Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App.), perm. app.
denied (Tenn. 1998) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203
(1985); and Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App.), perm. app. denied
(Tenn.1991)). Hill explains the showing of prejudice which must be made by a petitioner who
entered a guilty plea:
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In many guilty plea cases, the “prejudice” inquiry will closely
resemble the inquiry engaged in by courts reviewing ineffective-
assistance challenges to convictions obtained through a trial. For
example, where the alleged error of counsel is a failure to investigate
or discover potentially exculpatory evidence, the determination
whether the error “prejudiced” the defendant by causing him to plead
guilty rather than go to trial will depend on the likelihood that
discovery of the evidence would have led counsel to change his
recommendation as to the plea. This assessment, in turn, will depend
in large part on a prediction whether the evidence likely would have
changed the outcome of a trial.
Hill, 474 U.S. at 59, 106 S. Ct. at 370.
Trial counsel testified that, after their investigations of the evidence and many conversations
with the petitioner concerning the details he provided them in the Pulley and other cases, there was
no reason whatsoever to believe that the petitioner did not commit the offenses. Therefore, junior
trial counsel described any idea of presenting a defense based on the petitioner’s actual innocence
as “ludicrous.”
In view of petitioner’s confessions to police and his detailed statements to his trial counsel,
there is no indication that an investigation as to the truth of the statements or of the evidence would
have led counsel to any findings which, in turn, would have changed their recommendation that the
petitioner plead gui
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