# Cone v. Colson

> District Court, W.D. Tennessee · February 14, 2013 · 925 F. Supp. 2d 927

URL: https://www.frixlaw.com/law-library/cases/8706221

## Case

- **Full name:** Gary Bradford CONE v. Roland COLSON, Warden, Riverbend Maximum Security Institution
- **Court:** District Court, W.D. Tennessee
- **Decided:** February 14, 2013
- **Citations:** 925 F. Supp. 2d 927; 2013 U.S. Dist. LEXIS 67556; 2013 WL 752129
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Mecalla
- **Judges:** Mecalla
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

ORDER GRANTING RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT 1 AND ORDER DENYING PETITIONER’S MOTION FOR RELIEF ON BRADY 2 CLAIMS
JON P. MeCALLA, Chief Judge.
I. SUPREME COURT REMAND AND MANDATE 933
II. PROCEDURAL HISTORY 933
III. FACTUAL BACKGROUND 933
IV. CONE’S PETITION FOR HABEAS CORPUS — THE BRADY CLAIM 935
V. THE WITHHELD INFORMATION 935
VI.THE TRIAL FOR THE MURDERS OF CLEOPATRA AND SHIPLEY TODD — FRIDAY, APRIL 16, 1982, THROUGH FRIDAY, APRIL 23, 1982 937
A. The Guilt Phase — April 16,1982 through April 20,1982 938
1. Trial Day One: Friday, April 16,1982, 8:30 a.m. to 6:25 p.m. 938
a. Opening Statements 938
*931 b. State’s Proof 939
(1) Aaron Hayes, Jr. Manager, Brodnax Jewelry 939
(2) Sue Schratz Employee, Brodnax Jewelry 941
(3) Songu Mize Customer, Brodnax Jewelry 942
(4) Richard “Randy” Mize Customer, Brodnax Jewelry 942
(5) C.M. “Mike” Stovall Memphis Police Department (“MPD”) Criminal Investigation Division 944
(6) Bert Allen 3 MPD Motorcycle Squad Officer shooting victim ■ 946
(7) Barbara Benbrook neighborhood resident, eyewitness 948
(8) Deborah Stanford neighborhood resident, eyewitness 949
(9) John Douglas (“Doug”) Clark eyewitness, shooting victim 949
(10) Charles Slaughter neighborhood resident, eyewitness 951
(11) Debbie Howell Slaughter’s daughter, eyewitness 952
(12) Richard K. Wilson MPD Homicide Investigator 952
2. Trial Day Two: Saturday, April 17, 1982, 9:00 a.m. to 5:05 p.m. 952
a. State’s Proof, continued 952
(1) Richard K. Wilson, continued 952
(2) Hersehel Dalton neighborhood resident; victim, attempted-carjacking 953
(3) Lucille Tuech neighborhood resident; victim, attempted-home invasion 954
(4) Velora Hargett friend of Cleopatra Todd 955
(5) Gregory W. Moore Todds’ grandson 956
(6) Paul Adams Todds’ neighbor, called police to Todds’ house 956
(7) Mary Maguire Todds’ neighbor 957
(8) Steven R. Cole MPD Officer, first on scene at Todds’ house 957
(9) Marjorie Todd Moore daughter of Shipley Todd, stepdaughter of Cleopatra Todd 958
(10) Wayne A. Todd Todds’ grandson 959
(11) James Spencer Bell, M.D. Chief Deputy Shelby County Medical Examiner; Deputy Chief State of Tennessee Medical Examiner; expert in pathology 959
(12) Ruth Shreve victim, license plate theft 961
3. Trial Day Three: Monday, April 19, 1982, 10:45 a.m. to 6:45 p.m. 961
a. State’s Proof, continued 961
(1) Jimmy Hammers MPD Officer, Violent Crimes Bureau 961
(2) C.J. Harrell MPD Crime Scene Squad 965
(3) John Birdsong MPD Tactical Unit 965
(4) Thomas Dwight Smith MPD Officer 965
(5) Joe Sanders MPD Crime Scene Squad 966
(6) Paulette Sutton Employee, Univ. of Tenn. Toxicology Laboratory; Forensic Serology Expert 967
(7) R.L. Hannah MPD Crime Scene Squad 969
(8) Sgt. Ralph L. Roby MPD Violent Crimes Bureau 970
4. Trial Day Four: Tuesday, April 20, 1982, 10:50 a.m. t o 6:00 p.m. 974
a. State’s Proof, continued 974
(1) Merny Miller Keeper of Records, Illinois Bell 974
*932 (2) Michael P. Malone FBI, Microscopic Analysis Unit (hair and fiber) 975
(3) Jerry McElrath MPD Latent Fingerprint Squad 976
(4) James L. Holder MPD latent fingerprint examiner; fingerprint identification expert 976
b. Defense Proof 976
(1) Valeree Cone Cone’s mother 976
(2) Dr. Matthew Jaremko expert in clinical psychology 978
5. Trial Day Five: Wednesday, April 21,1982,10:35 a.m. to 9:00 p.m. 978
a. Defense Proof, continued 978
(1) Jonathan J. Lipman, Ph.D. neuropharmacologist; expert on effects of drugs on the human body 978
b. State’s Rebuttal 981
(1) llene Blankman Cone’s friend, former drug-user 981
6. Trial Day Six: Thursday, April 22, 1982, 8:35 a.m. to 7:55 p.m. 982
a. State’s Rebuttal, continued 982
(1) Eugene Flynn FBI Agent 982
(2) Ralph L. Roby MPD 983
(3) Ben Bursten forensic psychiatrist, Midtown Mental Health Center 984
(4) John Robert Hutson clinical psychologist; clinical director, Midtown Mental Health Center 984
b. Guil1>-Phase Closing Arguments 985
c. Jury Instructions 992
7. Trial Day Seven: Friday, April 23, 1982, 8:40 a.m. to 4:15 p.m. 994
a. Jury Instructions, continued 994
b. Jury Verdict 994
B.The Penalty Phase — April 23,1982 995
1. Opening Arguments 995
2. State’s Proof 995
a. J.A. Blackwell Criminal Court Clerk for Shelby County 995
b. MPD Officers James L. Holder, C.M. Stovall, Bert Allen, and Jimmy Hammers 996
3. Defense Proof 996
4. Penalty-Phase Closing Arguments 996
5. Jury Instructions 996
6. Jury Verdict 996
VII. LEGAL ANALYSIS 997
A. The Brady Standard 997
B. Consideration of the Withheld Information 998
C. Cone’s Drug Use and Mental State 999
1. Roby, LETS teletypes, Sue Cone, and the MPD Supplemental Offense Report 1000
2. Eyewitness Evidence of Cone’s Demeanor 1003
a. Statements of Charles and Debbie Slaughter 1003
b. Statement of Robert McKinney; Stepherson’s Big Star Robbery 1006
c. Pompano Beach Police Department Supplement 1008
3. Flynn and the FBI Records 1009
4. llene Blankman 1011
5. Source of Money 1013
D. Cumulative Effect 1015
VIII. CONCLUSION 1019
APPENDIX OF EXHIBITS A-l
*933 I. SUPREME COURT REMAND AND MANDATE
This cause is presently before the Court on remand from the United States Supreme Court to address Petitioner Gary Bradford Cone’s Brady claim in his habeas corpus petition. See Cone v. Bell, 556 U.S. 449, 476 , 129 S.Ct. 1769 , 173 L.Ed.2d 701 (2009). (Electronic Case Filing (“ECF”) No. 221; see ECF No. 71 at 12-17.) The parties briefed the issue of the scope of the mandate. (ECF No. 234; ECF No. 235; ECF No. 239; ECF No. 240.) On June 3, 2010, the Court held “that the mandate is to determine whether there is a ‘reasonable probability’ that, had the evidence identified in paragraph 39 of Cone’s habeas petition been disclosed, ‘the result of the [sentencing] proceeding would have been different.’ ” (ECF No. 242 at 8.) See Cone v. Bell, No. 2:97-CV-2312-JPM, 2010 WL 2270191 , at *4 (W.D.Tenn. June 3, 2010). The question for consideration, as articulated by Justice Stevens for the majority, is “whether the suppressed evidence might have persuaded one or more jurors that Cone’s drug addiction — especially if attributable to honorable service of his country in Vietnam — was sufficiently serious to justify a decision to imprison him for life rather than sentence him to death.” Cone, 556 U.S. at 475 , 129 S.Ct. 1769 .
II. PROCEDURAL HISTORY
The procedural background of Cone’s case prior to the Supreme Court’s remand is outlined in the Supreme Court’s opinion. See Cone, 556 U.S. at 457-64 , 129 S.Ct. 1769 . After the remand, a status conference was held on January 5, 2010. (ECF No. 228.) On January 28, 2010, Cone filed a notice of withheld exculpatory information. (ECF No. 230.) Respondent filed the state court record on January 28, 2010. (ECF No. 231; ECF No. 232; ECF No. 233.) On June 3, 2011, Respondent Roland Colson filed a Motion for Summary Judgment and supporting memorandum. (ECF No. 264; ECF No. 265.) Also on June 3, 2011, Cone filed a Motion for Relief on Brady Claims and supporting memorandum. (ECF No. 266; ECF No. 266-1.) On August 2, 2011, Cone filed his Response to Respondent’s Motion for Summary Judgment (ECF No. 268), and Respondent filed his Response to Cone’s Motion for Relief on Brady Claims (ECF No. 269). On September 2, 2011, Cone filed a Reply to further support his Motion for Relief. (ECF No. 271.)
On January 4, 2012, the Court ordered Respondent to supplement the state court record by manually filing the original trial exhibits and electronically filing an index clearly identifying each trial exhibit accompanied by a good quality digital photograph. (ECF No. 275 at 2.) On March 26, 28, and 29, 2012, Respondent filed the available original exhibits and corresponding digital photographs. (ECF No. 279; ECF No. 283-ECF No. 291.) Respondent filed a second supplemental notice of filing on September 19, 2012, with a copy of the trial court’s jury instructions. (ECF No. 319.)
III.FACTUAL BACKGROUND
The United States Court of Appeals for the Sixth Circuit summarized the relevant facts as follows:
The crime spree that culminated in Cone’s conviction and sentence to death began on August 9, 1980, when he robbed a jewelry store in Memphis, Tennessee, of approximately $112,000 worth of goods. The police were alerted and they promptly spotted Cone driving a car. A high speed chase ensued, following which Cone abandoned the car in a residential neighborhood, shot pursuing police officer B.C. Allen and citizen John Douglas Clark, and unsuccessfully tried to shoot a third citizen, Herschel Dalton when Dalton refused to surrender his *934 car to Cone. Cone temporarily eluded the police, but they seized his car and in it found a large amount of cash, drugs, and the stolen jewelry.
The next day, Cone appeared in the same residential neighborhood at the home of Lucille Tuech. He drew a gun on Tuech when she refused to let him in to make a phone call. Later the same day, Cone broke into the home of an elderly couple, Shipley and Cleopatra Todd, who were 93 and 79 years old, respectively. Cone tried to convince the couple to help him, but when they refused to cooperate, he brutally killed them. Three days later, the Todds’ severely beaten and mutilated bodies were found in their home. Cone’s fingerprints and hair samples were also found in the home. In due course, Cone was arrested in Florida and returned to Tennessee.
Cone v. Bell, 243 F.3d 961, 965 (6th Cir. 2001), rev’d, 535 U.S. 685 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002). Cone was tried in the Shelby County Criminal Court and found guilty on two counts of first-degree murder and murder in the perpetration of a burglary; assault with intent to commit murder in the first degree for the attacks on Allen, Clark, and Dalton; and robbery with a deadly weapon for the jewelry store robbery. Id. at 965-66.
The Tennessee Supreme Court summarized the mitigating evidence presented at trial as follows:
Appellant was thirty-three years of age. He was an honor graduate of the University of Arkansas and shortly before the events in question here had been accepted for admission into law school, scoring in the ninety-sixth percentile on a law school admission test. He had served in the armed forces from 1966 through 1969,- and had one year’s service in Viet Nam as a supply sergeant. He had received a bronze star for his service there and had been honorably discharged from the army. He went to college after his discharge. In 1972, however, after graduating from college, he was convicted of three separate armed robberies in Oklahoma, these covering a period from December 1971 through May 1972. He had been imprisoned in Oklahoma until the latter part of 1979. He had then returned briefly to his home in Arkansas and had gone to Hawaii for a time. The vehicle which he was driving on August 9, 1980 had originally been registered in his name, but was registered in the name of his mother on that date.
Appellant offered the testimony of two witnesses in support of his defense of lack of mental competence. The first of these was Dr. Matthew Jaremko, a clinical psychologist at the University of Mississippi. He had interviewed appellant on two occasions for a total of about six hours, beginning in February 1982, less than two months prior to the trial. It was the opinion of Dr. Jaremko that appellant was suffering from post-traumatic stress disorder as a result of his experiences in Viet Nam, and that upon this was superimposed a serious drug-abuse disorder. Dr. Jonathan Lipman, a neuro-pharmacologist, testified that appellant, in his opinion, suffered from “chronic amphetamine psychosis” as a result of serious drug abuse. As previously stated, neither of these witnesses had ever known or treated appellant prior to the early part of 1982, and both of them based their testimony entirely upon what he told them as to the extent of his ingestion or injection of drugs. Not only was the weight of their testimony a question for the jury, but appellant’s known pattern of conduct immediately before and immediately after the events in question here raised serious doubts as to the accuracy of their opin *935 ions, because he did not appear to be seriously under the influence of or experiencing withdrawal from drugs according to the testimony of several witnesses who saw him during August 1980. In addition, as previously pointed out, the State offered two witnesses whose qualifications equalled or exceeded those of appellant’s experts, and neither of the State’s expert witnesses found any basis for an insanity defense.
State v. Cone, 665 S.W.2d 87, 91-92 (Tenn. 1984) (footnote omitted). Cone was sentenced to ten to twenty-five years imprisonment for the assaults, life imprisonment for the robbery, and death for the murder charges. Cone, 243 F.3d at 966 .
IV. CONE’S PETITION FOR HABEAS CORPUS — THE BRADY CLAIM
On July 1, 1997, Cone filed a habeas petition challenging his convictions. (ECF No. 71.) In paragraph 39 of Cone’s habeas petition, he alleged a Brady claim:
the prosecution withheld exculpatory evidence, including evidence demonstrating, for example, that petitioner did in fact suffer drug problems and/or drug withdrawal or psychosis both at the time of the offense, and which also calls into question the veracity of the prosecution’s rebuttal witnesses. Such evidence was highly exculpatory to both the jury’s determination of petitioner’s guilt and its consideration of the proper sentence. There is a reasonable probability that, had the evidence not been withheld, the jurors would not have convicted petitioner and would not have sentenced him to death.
(Id. ¶ 39, at 12.) Cone alleged that documents in the district attorney’s (“DA”) and Federal Bureau of Investigation’s (“FBI”) files show that he was a drug user and on drugs at the time of the murders. (Id. ¶ 39(a)-(h), ECF No. 71-5 to -17.) 4 He alleged that the DA and FBI files contained exculpatory evidence relevant to the veracity of rebuttal witness llene Blank-man. (ECF No. 71 ¶39®.) He also alleged that there was evidence that the money in his car, which the prosecution claims was from selling drugs, was related to the robbery of Stepherson’s Big Star. (Id. ¶ 39(j); ECF No. 266-1 at 16.)
V. THE WITHHELD INFORMATION
Cone filed the following documents as the withheld exculpatory evidence relevant to his Brady claim:
1. August 10, 1980, Law Enforcement Teletype System (“LETS”) teletype authorized by Memphis Police Sergeant R.L. Roby (“Roby”): “SUSPECT IS HEAVY DRUG USER, ARMED AND DANGEROUS.” (ECF No. 230-1);
2. August 11,1980, LETS teletype authorized by Sergeant Roby: “ARMED AND EXTREMELY DANGEROUS, DRUG USER.” (ECF No. 230-2);
3. August 11,1980, LETS teletype authorized by Sergeant Roby: “ARMED AND EXTREMELY *936 DANGEROUS, DRUG USER.” (ECF No. 230-3);
4. Memphis Police Department Offense Report, statement of Charles and Debbie Slaughter: “They said he looked wild eyed and might not have been wearing shoes.” (ECF No. 230-4; ECF No. 274-1);
5. August 27, 1980, statement of Robert H. McKinney about August 8, 1980, robbery of Stepherson’s Big Star, including: “Q. The person you saw responsible for the robbery, did he appear to be drunk or high on anything? A: Well he did, he acted real weird that is the reason I watched him.” (ECF No. 230-5 at 1809);
6. August 23, 1980, telephone interview of Sue Cone conducted by Sergeant Roby regarding Gary Cone’s psychological and drug problems (ECF No. 230-6);
7. Pompano Beach Police Department Supplement describing Gary Cone: “Subject was observed to be looking about in a frenzied manner and also appeared to be looking for a place to run” and when officers approached “the subject was still walking in his agitated manner.” (ECF No. 230-7); 5
8. August 11, 1980, Memphis Police Department Supplementary Offense Report, written by J.L. Collier: James Daniels, Chief of Police of Lake Village, Arkansas, “did state he found out Cone was a heavy drug user, but had never been arrested in the Lake Village area.” (ECF No. 230-8).
9.August 12, 1980, FBI teletype: “SUBJECT BELIEVED HEAVY DRUG USER.” (ECF No. 230-9 at 526); 6
10. August 12, 1980, FBI Airtel: “ARMED AND EXTREMELY DANGEROUS; DRUG USER.” (ECF No. 230-10);
11. August 14, 1980, FBI teletype: “ARMED AND DANGEROUS. DRUG USER. ESCAPE RISK.” (ECF No. 230-11 at 530);
12. August 14, 1980, FBI Airtel: “ARMED AND DANGEROUS DRUG USER; ESCAPE RISK” (ECF No. 230-12);
13. August 16, 1980, FBI Airtel, Alice Jane Schmidt Pelley interview: “ARMED AND DANGEROUS. DRUG USER. ESCAPE RISK.” (ECF No. 230-13);
14. August 18, 1980, FBI Statistics Letter: “ARMED AND DANGEROUS; DRUG USER.” (ECF No. 230-14);
15. 5 separate copies of FBI photographs and description of Gary Cone: “ARMED AND DANGEROUS, DRUG USER, ESCAPE RISK ” (ECF No. 230-15);
16. August 13, 1980, 2:53 p.m., FBI teletype: “Drug User” (ECF No. 230-16);
*937 17. August 15, 1980, 10:49 a.m., FBI teletype: “Drug User” (ECF No. 230-17);
18. FBI report, “Re[:] Memphis teletype”: “While in prison, Cone was caught in possession 750 amphetamine pills....” (ECF No. 230-18 at 549);
19. FBI report: “Subject believed heavy drug user.” (ECF No. 230-19 at 554);
20. February 9, 1982, cover letter from Joseph L. Patterson to llene Blankman: “Enclosed please find a copy of your statement, which you requested.” (ECF No. 230-20);
21. March 22, 1982, letter from Joseph L. Patterson to llene Blankman regarding compliance with trial subpoena (ECF No. 230-21);
22. FBI report of Special Agents Robert W. Kelly and Eugene Flynn regarding an event during trial at 9:45 p.m. on April 21, 1982, statement of “Gloria” to llene Blankman that she was a “turncoat” and “trying to burn” Cone. Blankman did not respond. (ECF No. 230-22 at 1946);
23. Copy of Jonathan Lipman’s report from the FBI file (ECF No. 230-23);
24. Handwritten notes of DA’s interview of llene Blankman, stating Cone “[n]ever used drugs around me.” (ECF No. 230-24 at 1942);
25. April 27, 1982, post-trial letter from Joseph Patterson and Don Strother to llene Blankman: “We certainly appreciate your cooperation.... ” (ECF No. 230-25);
26. Don Strother’s handwritten notes regarding indictment of Gary Cone for robbery of $1893.72 from Stepherson’s Big Star (ECF No. 230-26); and
27.September 11, 1980, letter from Insurance Company of North America to MPD informing of $2013.72 insurance payment to Stepherson’s Big Star for robbery loss. (ECF No. 230-27).
VI. THE TRIAL FOR THE MURDERS OF CLEOPATRA AND SHIPLEY TODD — FRIDAY, APRIL 16, 1982, THROUGH FRIDAY, APRIL 23, 1982
The State was represented by Assistant Attorney Generals Don Strother and Joseph L. Patterson. Cone (also known as Gerald Mason Harmon) was represented by John Dice and April Ferguson. The Honorable James C. Beasley was the presiding trial judge.
Voir dire was conducted on April 12-15, 1982, and the jury was sworn at 3:00 p.m. on April 15, 1982. (See ECF No. 231-4 at 3-18; ECF No. 231-10 at 852.) The trial began on Friday, April 16, 1982, at 8:30 a.m. (See ECF No. 231-10 at 940.) The day began with the reading of the indictments: Indictment No. 74702 charging “murder first degree ... during the perpetration of a burglary and murder first degree of Cleopatra Todd (see ECF No. 231-1 at 2-5); Indictment No. 74703 charging murder first degree during the perpetration of a burglary and murder first degree” of Shipley Todd (see id. at 2, 6-8); Indictment No. 74898 charging assault with intent to commit murder in the first degree on Herschel Dalton (see id. at 11-13); Indictment No. 74899 charging assault with intent to commit murder in the first degree on C.B. Allen (see id. at 11, 14-15); Indictment No. 74900 charging assault with intent to commit murder in the first degree on Douglas Clark (see id. at 11, 16-17); and Indictment No. 74902 charging robbery with a deadly weapon on the person of Aaron Hayes, Jr., for the *938 robbery of the Brodnax Jewelry Store, located in Poplar Plaza in Memphis, Tennessee (see id. at 17, 18-19). (See ECF No. 231-10 at 942-43.) Cone pleaded not guilty by reason of insanity on all charges. (See id. at 943.)
The State presented thirty-five witnesses during the guilt phase of trial from April 16-20, 1982. (See ECF No. 231-4 at xviiii-vxx.) The defense case began on April 20, 1982, and included the presentation of three witnesses. (See id. at xxv-xxvii.) From April 21 to 22, 1982, the State presented five rebuttal witnesses. (See id. at xxvii-ixxx.) Final arguments were heard in the guilt phase on April 22, 1982. (See id. at ixxx.) On April 23, 1982, at 8:50 a.m., the jury retired for deliberations, and less than two hours later at 10:32 a.m., the jury advised that they had reached a verdict. (See id. at xxx; see also ECF No. 232-8 at 2101-03.)
The sentencing phase began after the guilty verdict on April 23, 1982, with both sides making opening statements. (See ECF No. 232-9 at kk, 2112-19.) The State presented five witnesses. (See id. at kk.) Cone’s attorneys presented no evidence at the sentencing phase of trial and relied on mitigating circumstances presented in the guilt phase. (See id. at 2115-19, 2144.) The jury retired for deliberations at 3:05 p.m., and forty-five minutes later at 3:50 p.m., advised the court that a sentencing verdict had been reached. (See ECF No. 231-4 at xxxii; ECF No. 232-9 at 2150.)
A. The Guilt Phase — April 16, 1982, through April 20, 1982
1. Trial Day One: Friday, April 16, 1982, 8:30 a.m. to 6:25 p.m.
a. Opening Statements
The first day of trial began at 8:30 a.m. on Friday, April 16, 1982. (See ECF No. 231-10 at 940.) Strother presented the State’s opening statement in which he outlined a series of events occurring slightly after noon on August 9, 1980, and continuing until August 10, 1980, including: the robbery of the Brodnax Jewelry Store, the police chase, the shooting of police officer Bert Allen, the shooting of bystander Doug Clark, the assault on Herschel Dalton, the encounter with Lucille Tuech at her apartment door, and the murders of Cleopatra and Shipley Todd. (See id. at 944-50.)
In Cone’s defense, Dice presented the opening statement and outlined the evidence he would present about Cone’s background including the fact that he came from a military family, served in Vietnam, graduated with high honors from the University of Arkansas, and that he was a “changed person,” “a junkie, a drug addict” when he returned from Vietnam. (Id. at 950-53, 958-60.) Dice asserted that Cone “suffers from a disease known as amphetamine psychosis” and that he was “a drug addict and a junkie of such unbelievable proportions that it would have been impossible for him to form any intent, much less the cool and clear and deliberated [intent] that he is charged with in the commissions of these crimes.” (Id. at 957.) Dice asserted that Cone suffered from “a syndrome called Vietnam Veterans Syndrome.” (Id. at 957-58.) Dice posed the question: “Is Mr. Gary Bradford Cone a person who was capable of forming the intent called for in the commissions of the crimes with which he is charged!?]” (Id. at 960-61.)
Dice acknowledged that some of the prosecutor’s facts were “true and correct”: “My client, Gary Cone, entered a store known as Brodnax in Poplar Plaza. My client robbed that store. My client was pursued by an officer in an unmarked police car. At that point, certainly an exchange of gunfire took place between Officer Allen and between my client.” (Id. at *939 961.) Dice acknowledged that “gunfire was exchanged” in Cone’s encounter with Clark. (Id) 7 Dice stated that the next morning Cone, after hiding all night in a burned-out house, left the house looking for water and had a “confrontation with [a] lady.” 8 (Id. at 962.) Dice stated that Cone returned to the burned-out house, and the Memphis Police Department (“MPD”) “tear-gassed that house in an attempt to arrest” Cone. (Id.) 9
Dice acknowledged that,
On August 10, 1980, in the late afternoon hours, Gary Cone went to the home of the Todds. No question about that.... [W]hen he got inside he and Mrs. Todd and Mr. Todd got into a confrontation, and blows were exchanged. Okay. I don’t know the exact nature of everything that happened in that home. If I did, I’ll tell you about it.
But I admit to you that my client, Gary Cone, killed the Todds. I deny to you, under our law, that he murdered them.
(Id. at 963.)
Dice posed the question of whether Cone was “the clever criminal” that Strother had described or “whether a person [like Cone] with a known record” would have left a “clear trail” by leaving fingerprints .and calling his sister from the Todds’ home. (Id. at 964.) Dice stated, “Again, I must respectfully say to you that we admit that we killed the Todds. We deny, under our law, that we murdered them. That’s the position of the Defense.” (Id.) Dice argued that Cone “had to be out of his mind to have done the things he did.” (Id. at 965.) Dice posed the question, “whether deterrence, whether capital punishment stops the action of the man with one drink too many, much less the junkie, much less the aleoholic[?]” (Id. at 966.) He finished his opening statement by asking the jury “to look at the whole man in this case, and all of the proof.” (Id.)
b. State’s Proof
(1) Testimony of Aaron Hayes, Jr.
The State began its proof on the first day of trial, April 16, 1982, with the testimony of Aaron Hayes, Jr., the manager of the Brodnax Jewelry Store. (See ECF No. 231-11 at u, 973.) Hayes testified that he was working at approximately 12:45 p.m. on Saturday, August 9, 1980. (See id. at 973-74.) Hayes testified about what happened:
A. A gentleman walked in, walked around the store briefly. We approached him, as is our policy, immediately. He said he was just looking. He looked for just a minute, went around to the diamond counter, and I approached him again, and he started discussing rings, so — He wanted to look at a particular—
Q. What type of ring did he want to look at?
A. A marquise engagement ring.
Q. Any particular size?
A. He wanted about a carat. And, at the time, I didn’t have anything of that size in the store. I had something a little smaller which I told him I’d show him, or I could get him the size that he wanted. And he said that he would look at the one that I had. And as he looked *940 at it — He couldn’t see it because he had on dark glasses, so—
Q. Was there a conversation about that?
A. Yes, he said he needed to go out and change his glasses in his car.
Q. Did he re-appear?
A. Yes.
Q. What happened after that?
A. He looked at the diamonds. He liked, supposedly, the diamond that I had. He even discussed remounting the diamond and, frankly seemed to show quite a bit of knowledge of diamonds just by his conversation. And he said that there was something else that he wanted to see in the store.
Q. Did he tell you what he wanted to see?
A. Yes, he wanted to see a watch. And we walked around the counter — He walked around the counter, I just had to turn around — and he pointed at a particular watch, which was a very expensive watch, it was around $8,000.00. And at that point ... he pulled a gun from his waist.
Q. Did he say anything when he pulled the gun? 10
A. He told me not to make — set off any alarms, in essence and to back up. And I assumed that he thought I had an alarm under the counter. And he also wanted the watches.
{Id. at 974-76.) Hayes gave Cone the watches, and he put them in his jacket pocket. {See id. at 976.) Hayes continued,
He said he wanted the ring that he’d looked at, so we went back around the counter and I gave him that ring, and he said he wanted the rest of them, so — It’s just a policy that we have. We do not take merchandise out. So — It’s very offensive to us to take a lot of merchandise out at one time. But, anyway, I just took one at a time, and he kept telling me to hurry up. And then — [o]ur rings are kept on these ring bars, so you can take several out at a time, and then he insisted that I take out the ring bars so he could help me. And he just put those in his pocket, also.
Basically, after he got what he wanted, he left the store.
{Id.) Hayes recalled Cone saying “something to the effect that it was either nice shopping on Saturday, or nice shopping at Brodnax on Saturday.” {Id. at 989.)
Hayes followed Cone and saw him get into an older, faded, gray/green color, Oldsmobile Cutlass and drive off towards Highland Avenue and Walnut Grove. {See id. at 977-78.) Cone had parked about half a city block away from the store, in a manner so he could just pull out. {See id. at 978, 988.) Hayes enlisted two men coming from the nearby David’s Home Fashions store to follow Cone’s car. {See id. at 977-78.) They proceeded down Highland toward Summer Avenue, but they did not see the car. {See id. at 978.)
Before Hayes left the store, he alerted the store personnel to call the police, and, when he returned to the store, Hayes gave the police a description of the car. {See id.) He described the robber as
about — I would say about 5'7", slight build, probably 140 pounds, and had sort of brownish hair, a little — it wasn’t extremely long, but it wasn’t short either, sort of mod length, I guess. Had sort of a beard.... He had on a mismatched sort of greenish colored — I’ll say outfit, the jacket didn’t match the pants exact *941 ly. And for some reason I remembered that he had on new shoes, new black shoes, which didn’t look like they went with the suit, or whatever, that he had on.
(Id. at 979.) Hayes noticed that the robber had a bandage on one of his fingers. (See id.)
Patterson presented Hayes with three pictures — one of the outside of the Brodnax store and two of the inside of the store. (See id. at 979-80.) Hayes identified the pictures as true and accurate pictures of the store as it appeared on August 8, 1980, and the three pictures were introduced collectively and entered as State’s Exhibit 1 (ECF No. 284-1 to -2). (See ECF No. 231-11 at 979-80.)
Patterson presented Hayes with a picture of an automobile, and Hayes testified that the automobile was similar to the one that he saw the day of the robbery. (See id. at 980-81.) The picture was entered into evidence as State’s Exhibit 2 (ECF No. 284-3). (See ECF No. 231-11 at 981.)
Patterson presented Hayes with three sheets of photographs of watches and rings. (See id. at 982.) Hayes testified that the photographs were of the stolen merchandise and that all the merchandise was returned to the store. (See id.) These three sheets were entered as State’s Exhibit 3 (ECF No. 284-4 to -6). (See ECF No. 231-11 at 982-83.) The total value of the jewelry taken in the robbery was around $112,000. (See id. at 984.)
After the incident, Hayes went to the police station and identified a photograph as someone who “[ljooks similar” to the person who robbed the store. (See id. at 985.) He made a notation on the photograph. (See id.) The beard of the person in the picture looked much heavier than the robber’s beard, and the robber’s hair was a bit thinner. (See id. at 985-86.) The photocopied photographs that Hayes viewed and identified on the day of the robbery were entered as State’s Exhibit 4 (ECF No. 284-7 to -9). (See ECF No. 231-11' at 986.) Hayes also viewed a group of eight photographs, identified one of the photographs as the robber, and marked the back of that photograph. (Id. at 986-88.) Those photographs were entered as State’s Exhibit 5 (ECF No. 284-10 to -13). (See ECF No. 231-11 at 987.) 11 Hayes identified the pants and jacket that the robber wore, and the items were entered into evidence as State’s Exhibit 6 (ECF No. 284-14 to -15). (See ECF No. 231-11 at 990.) He identified the pair of shoes that the robber wore, and they were entered into evidence as State’s Exhibit 7 (ECF No. 284-16 to -17). (See ECF No. 231-11 at 990-91.)
On cross-examination, Dice asked Hayes, “is it fair for me to say that at one time you made a statement that the person, whoever he was, who robbed you was sweating quite a bit” to which Hayes responded, ‘Tes, sir.” (Id. at 995.) On redirect examination, Hayes testified that it was very hot on the day of the robbery. (See id.)
(2) Testimony of Sue Schratz
The second witness called on the first day of trial was Sue Schratz, a Brodnax employee who was working on the day of the robbery. (See id. at 996-97.) She was waiting on two customers when she noticed her manager Aaron (“Ronnie”) Hayes “started showing rings and he was throwing them out on the counter.... He was throwing them out, one at a time, until ... the person told him to put the tray out and lay them on the counter.” (Id. at 997- *942 98.) She stated that one does not show diamond rings that way. (See id. at 997.) The robber “sat down in front of the diamond case” and was putting the rings in his pocket. (Id. at 998.) She described his clothing as “an olive green coat” with a stripe and “solid — kind of khaki colored— not khaki, but that olive drab, slacks.” (Id.) Schratz said he was “short and wirey — around 5'4", 5'5"” with hair that was “rather long and kind of unkept, and maybe light brown, or brown. And stringy.” (Id. at 998-99.) He had “two week’s growth of beard started.” (Id. at 999.) Schratz identified the Defendant as the robber. (See id. at 999-1001, 1003.) She identified the striped coat in State’s Exhibit 6 (ECF No. 284-15) as the coat that the robber wore and stated that “it was awfully hot looking at that day to be dressed like that.” (ECF No. 231-11 at 1004.) The defense did not cross-examine Schratz. (See id.)
(3) Testimony of Songu Mize
The State’s third witness was Songu Mize, a customer at Brodnax during the robbery. (See id. at 1005-06.) Songu Mize and her husband went to Brodnax on August 9, 1980, around noon to pick up their wedding bands. (See id. at 1006.) She described the events as follows:
We walked in — When we walked in, there were not any other customers, I believe, and we were trying out rings and — in a few minutes afterwards, I saw another customer, to my right, talking to the store manager, and he was looking at the diamond rings, and the conversation seemed to be interesting, so I turned around and looked at the person, and after a few minutes I saw the same person asking the store manager to take the trays-ring trays, to put them on top of the counter, and he was grabbing them by the handful and putting them in his pocket. And then he told me not to leave the store....
He said, “Don’t leave the store just right now, just hang around a little bit.” (Id. at 1006-07.) Songu Mize testified, “He was talking softly, though, quietly, but I could hear him because he was right next to me.” (Id. at 1007.) After he told her not to leave,
I guess, under the stress, I decided to leave, and walked toward the west — east entrance of the store where our car was parked, and I came to the door, opened the door, and I wanted to get my husband out of there so I asked him to walk out, too. He ignored me. And I decided to go and sit in the car, and I went to the car and sat in the car where I could see the store, and a few minutes after I went out, [the robber] walked out, walking fast[.]
... At that time I saw him putting a gun in his back pocket. I saw the handle of the gun.
(Id. at 1007-08.)
Songu Mize described the robber: “He was a young person, 30, 35 probably. Not too tall. Not heavy at all, slim, probably, ... [h]ad a beard, a mustache. Was wearing gray/green suit, or jacket and pants, and plaid shirt. He had sandy brown hair.” (Id. at 1007.) She testified that State’s Exhibit 6 (ECF No. 284-15) looked like the suit that the robber was wearing and that he had a bandage on one of his fingers. (See ECF No. 231-11 at 1008-09.) At trial, Songu Mize stood in front of Cone and stated that he looked like the robber, but “he’s a lot heavier.” (Id. at 1009-11.) The defense did not cross-examine Songu Mize. (See id. at 1013.)
(4) Testimony of Richard (“Randy”) Mize
The State’s fourth witness was Richard (“Randy”) Mize, Songu Mize’s husband and a customer at Brodnax during the *943 robbery. (See id. at 1013-14.) Richard Mize testified,
Yes, as I’m sure you all know, the store was robbed. And we were at the counter, fitting the band, and checking out whether they fit the ring — our fingers properly, and we all of a sudden noticed that a robber was collecting, first, Rolex watches, and then diamond rings. And the clerk was scooping up the rings, and the robber was then pocketing them.
My wife, at that point, decided to leave the store and — then turned around and signaled for me to come out, as well, and — I backed away from the counter, because that seemed to make the robber somewhat nervous, and said to him, “Don’t worry, we’re not going to do anything.” And, at that point, the robber said, “Don’t worry, I’m not about to panic.” And shortly thereafter he — I think picked up a few more rings, and then rapidly left the store.
(Id. at 1014.)
Richard Mize was standing three or four feet away on the same side of the counter when he first noticed the robber, and “as the events were transpiring, [the robber] went around to the other side of the counter.” (Id. at 1015.) Richard Mize testified that the robber was
relatively short ... in the neighborhood of 5'8", 5'9". He was also quite — he seemed quite thin. I would guess in the neighborhood of 140, 150 pounds in weight. I recollect him having relatively sandy hair. And I think the two most prominent things that we noticed, were that he had a rather scraggly beard — it wasn’t a full grown beard, it was rather scraggly. He had an overall appearance of being rather mussed, and, finally, he was sweating profusely. I remember— Both my wife and I commented on that, because it seemed, you know, quite striking.
(Id.) Richard Mize testified that it was August in Memphis and “very hot.” (Id. at 1015-16.) Richard Mize could not make a positive identification in the courtroom. (See id. at 1017.)
Richard Mize testified about the robber’s clothing:
He was dressed in — To begin with, his clothes also looked mussed, to us, as though they were wrinkled and crumpled up. And I believe he had on sort of wash pants, that were of a greenish color, and a sport coat I also remember being of a greenish color.
(Id. at 1016.) Mize identified the clothes in State’s Exhibit 6 (ECF No. 284-15) as the robber’s clothing. (See ECF No. 231-11 at 1016.)
Mize saw the robber’s gun while they were in the store. (See id.)
As we went around — or as he went around the counter, so that he was facing us, at the point my wife left the store, he flashed a gun. And by that I mean — if I can show you. He had it sort of back like this [indicating back waist band of trousers], and brought it out, and sort of showed it to us, keeping the barrel pointed towards the floor, but nevertheless so that we were aware of the fact that he was armed.
(Id. at 1016-17.)
On cross-examination, Dice asked Richard Mize if he made the statement, “It’s hot as blazes in Memphis in August.” (Id. at 1018.) Mize responded that he said something like that. (See id. at 1019.) Dice verified that Mize had stated that the robber was sweating profusely. (See id.) Dice addressed whether Richard and Songu Mize were together when the robber showed his weapon. (See id. at 1020.) Richard Mize testified that he did not believe that his wife saw the weapon until after she had left the store. (See id.)
*944 (5) Testimony of C.M. (“Mike”) Stovall After a lunch recess on the first day, the fifth witness, C.M. (“Mike”) Stovall with the MPD’s Criminal Investigation Division, South Precinct, was called to testify. (See id. at 1027-28.) On August 9, 1980, around 1:00 p.m., Stovall heard a broadcast concerning the armed robbery of the Brodnax Jewelry Store. (See id. at 1028.) The broadcast described a “greyish/green Oldsmobile, with a male white responsible.” (Id. at 1029.) The individual was “dressed in a green suit, had a beard and glasses.” (Id.) Stovall heard the broadcast and headed east toward the store in his Chevelle unmarked cruiser. (See id. at 1028-29,1031.)
I was headed — past Parkway, above the viaduct, when I noticed a group of cars coming up the viaduct — up the little hill there, and I looked over and I saw this grey Oldsmobile driving at a normal rate of speed, along with two or three other cars, and a male white with a beard. So I stopped right there on top, and there was no way to turn around except for a U-turn. I waited until he got by me, down the other side, and I made a U-turn, fell in behind him. I caught up with him about Union and Cooper, where he was stopped at a red light, and at this time I advised the dispatcher I was behind a possible robbery suspect, and gave the license number — which was Arkansas plates at that time. I told them we were eastbound — we were westbound on Union at an average rate of speed, about 35-40 miles an hour. And I followed him all the way down Union to past McLean, past Idlewild, to Auburndale, right there at Dunkin’ Donuts. He first stopped right at the stop light at the McLean and Union — we were still going at a normal rate of speed, and he turned — turned right on Auburndale off of Union, headed north towards Madison, and he was still going 35^0 miles an hour. I was trying to hang back a little bit to keep him from noticing me. I got — He got almost to Madison, and that’s when he gunned the car and sped out in front of traffic on Madison. And then I advised the dispatcher that we were at this time in chase....
Well, he sped off in front of traffic right there at Madison, and I knew then that it had to be the robbery suspect. And so I followed behind him. He went one block — he went down Madison, headed east, one block, and took a left on Idlewild, which I was familiar with the area, it deadends, so I figured, well, I’ve got him right here. He goes down Idlewild about halfway, notices it’s a deadend, he turns in the parking lot— This ear I’m in is not as fast as the Oldsmobile he was driving. Of course, I couldn’t keep up with him. He made a U-turn in a parking lot, which used to be a High Rollers Lounge there, and coming back out on the street he tried to hit the cruiser, at that time which I was in, and I had to gun it out of his way. He come back out on Idlewild headed toward Madison again, took a right on Madison which is headed westbound, to one more block, and then he took a right on Auburndale headed northbound towards Poplar.
At this time, by the time I got turned around and got back out on the street to Auburndale and Madison, it’s a pretty long stretch there, and he was almost to the end of the street. He had to be going speeds of 80-85 miles an hour through those streets right there. I caught up with him at — I got to the intersection of Auburndale and Poplar, and I caught the tail end of his car one block further down, which is eastbound, to Hawthorne Street. He had gone in front of traffic and gone in that street, and by the time I could get down *945 there — Poplar was kind of busy. I got to the street — I saw a cloud of dust behind a black van, which he had gone behind, in a hedge of bushes. I saw the dust and I figured he had gone behind the van, and stopped. So I stopped the cruiser out in the street and got out of the car and pulled my weapon. He come around in front of the van — over the bushes, about — about this high, right here to his chest [demonstrating], and at this time he put his hand up, and I couldn’t tell whether he had a gun or not. There was a person standing right behind him. I could not shoot, fear that I might hit the other person. I told him to drop the gun right there, halt. He jumped back around the van and got in his car and took off at a high rate of speed across the front yards. He jumped the curb and went back out in the street, headed northbound on Hawthorne.
I jumped back in the cruiser, and started after him again. And, of course, his car was a lot faster than the one I was in. As I got back in the car and was headed northbound on Hawthorn[e], I looked in the rear view mirror and I saw a motorcycle officer behind me. I got to the first street, which is — I believe it’s Lawrence, and — He took a left, headed back westbound. By the time I got to the intersection I had lost sight completely. But the street was kind of a long stretch so I figured he had to turn off somewhere. The first street I come to, which was Auburndale, it was left, the only way you could go, I took that, and was going up Auburndale Street at a pretty good rate of speed. And I caught him out of the side of my eye getting out of the Oldsmobile. He’d gone up Lawrence and taken the first street, left, which is Auburndale, and had taken the first drive left, up into a house behind a hedge of bushes. As I was driving by I caught him out of the corner of my eye getting out of the car.
I went on past and slammed on the brakes. At that time the motorcycle officer, which was a pretty good distance behind me, saw me stop, and he stopped right behind the car. And the Defendant jumped out of the car and run between the garage and jumped a fence. And the motorcycle officer was right behind him. When I got out of the car I heard a lot of gunshots, and I got to the driveway and I saw the Defendant’s head go by the fence. That’s when I jumped up on the fence, with a gun, to pull the trigger on him when he rounded the corner on me.
{Id. at 1029-34.) Stovall heard gunshots when he jumped out of his car and was running toward Cone’s car; he was behind a garage at the time. {See id. at 1035.) Stovall lost his radio at some point during the chase and went back to the motorcycle and radioed for help. {See id. at 1036.) He stayed by the suspect’s car to protect the scene. {See id. at 1042.) The motorcycle officers were in the area, and the helicopter was above. {See id.) Stovall never fired his weapon. {See id. at 1043.)
Stovall identified the route that was taken during the chase on a large aerial map, which was also enlarged on a screen in the court room. {See id. at 1036-42.) The map was entered into evidence as State’s Exhibit 8 (ECF No. 284-18 to -19). {See ECF No. 231-11 at 1037.) Stovall identified a photograph of the suspect’s vehicle where it was left in a driveway. {See id. at 1043.) The photograph was entered into evidence as State’s Exhibit 9 (ECF No. 284-20). {See ECF No. 231-11 at 1043.)
. Stovall described the suspect as “a male white, he had glasses on, he had a full reddish beard — dark brown reddish beard.” {Id. at 1044.) He identified Cone as the suspect that he chased. {See id.)
*946 On cross-examination, Dice clarified that the motorcycle officer that Stovall spoke of was Bert Allen. (See id. at 1047.) Allen was about thirty feet away from the suspect at the time. (See id. at 1051.) Dice pointed out that in the offense report, Stovall stated, “[a]t this time I yelled for the officer to shoot [the] suspect.” (Id.) Dice then quoted the offense report asking if it was correct that Stovall “heard approximately six shots as I was running toward the fence.” (Id. at 1051-52.) Stovall replied that the report was correct. (Id. at 1052.)
(6) Testimony of Bert Allen
The State’s sixth witness was MPD Motorcycle Squad Officer Bert Allen. (See id. at 1053.) On August 9, 1980, between 1:00 and 1:30 p.m., Allen heard a broadcast concerning a chase in. midtown Memphis, (See id. at 1053-54.) Allen intercepted the chase which was proceeding in his direction down Poplar Avenue. (See id. at 1054.) At Poplar and either Aubumdale or Hawthorne, Allen saw an unmarked police cruiser against the curb. (See id.) He saw a light green Oldsmobile that fit the description of the vehicle being pursued. (See id.) Allen joined in the pursuit which at that time was proceeding at speeds around fifty miles an hour. (See id. at 1054-55.)
When Allen made the last turn, he could not see the Oldsmobile, only the tail lights, and the police cruiser. (See id. at 1055.) He saw the cruiser’s brake lights, and he began to slow down and look for the Oldsmobile. (See id.) Allen passed a driveway and saw movement on his left. (See id.) The Oldsmobile was sitting there, and a “male white” was getting out. (See id.) Allen put down the kickstand on his bike and jumped off to chase the suspect on foot. (See id.) Allen described the foot pursuit as follows:
The suspect was going eastbound straight down the driveway towards a redwood fence, at the rear of the residence at that location. I was directly behind him, following him straight down the same side of the car, down the driver’s side he had gotten out, I was probably 50 or 60 feet behind him.
... He went over this fence[ 12 ] and turned to the right, and I lost sight of him for about two or three seconds, maybe. As I went over the fence, I also proceeded to the right, the direction he had gone. And at that point there was only one direction that he could go because of the way the fence, and another garage was — was around to the left.
At this time I continued on around the garage, and when I got to the corner of the garage was the next time I actually laid eyes on him. Just as I got right at the edge I looked to the left and I observed the same male white that I had seen get out of the automobile, standing there with his arm raised up and a pistol in his hand. And about that time, the gun went off, and he shot me in the left hip.
... At the time he was firing the gun, I tried to dive and get out of the way, and I guess my dive took me, more or less, in a southeasterly direction from the corner — the dive and my momentum, and I fired one shot while I was in midair in his general direction. I don’t know where the bullet landed. And when I hit the ground I kind of rolled, I knew I’d been shot, and he ran back to the same corner of this garage, ... where we had come from. -And he stopped and turned around, and again raised the pistol, at which time I was laying on the ground and had my gun just kind of *947 back behind me, and I began to fire at him and he fired at me — either three or four times. I think it was four shots, and the dirt kicked up in front of me a couple of times, and — I fired the rest of my bullets, five more shots, and he turned and ran when I ran out of bullets.
(Id at 1056-57.) Allen testified that “the only thing that would keep [the suspect] in this small enclosed area there between two garages would be a short picket fence, maybe two and a half feet tall.” (Id at 1058.) Allen said the fence would have been easy to step over, but the suspect, was “just standing there, appeared to be waiting on me.” (Id)
Allen saw the suspect when he was running southbound on either Hawthorne or Idlewild. (See id. at 1064.) That is when Allen heard another single gun shot. (See id.) At this time, Allen was hurting, but he chased the suspect as far as he could. (See id.) Other officers were arriving on the scene, and Allen “just sat down and finally got into the back seat of one of the squad cars” and was transported to the hospital. (Id) Allen was shot in the left hip. (See id.) The bullet ricocheted off his pelvic bone and exited from his left buttock. (See id.)
Allen drew a rough diagram of the car, fences and garage, where the shots were fired, and where he was shot. (See id. at 1058-63.) The diagram was entered as State’s Exhibit 12 (ECF No. 284-24) for demonstrative purposes. (See ECF No. 231-11 at 1070.) Allen also pointed out where the suspect exited his car and ran down the driveway, past a few garbage cans by the garage. (See id. at 1059-60.) Five of Allen’s bullets went into the garage. (See id. at 1062, 1074.)
Allen testified that State’s Exhibit 9 (ECF No. 284-20) was a photograph of the automobile that the suspect was driving which was parked in the driveway where Allen began the foot pursuit. (See ECF No. 231-11 at 1064-65.) His motorcycle was in the background of the photograph. (See id. at 1065)
Allen identified a photograph of the area where the shots were fired including a picture of a picket fence; the photograph was entered into evidence as State’s Exhibit 10 (ECF No. 284-21). (See ECF No. 231-11 at 1065, 1071.) Allen marked the location where he was shot as “O” and the suspect’s location at that time as “S.” (See id. at 1066.)
Allen described the suspect as “a male white, with more or less shoulder length hair.” (Id.) He was wearing a plaid shirt and “looked like he hadn’t shaved in a while.” (Id.) Allen testified that he had previously seen the photographs in State’s Exhibit 5 and picked out a photograph of the suspect. (See id. at 1067.) Allen identified the photograph, initialed it, dated it, and put the time on it. (See id.)
Allen identified a pair of trousers that he was wearing at the time he was shot and the bullet’s entrance and exit holes. (See id. at 1067-71.) The trousers were entered into evidence as State’s Exhibit 11 (ECF No. 284-22 to -23). (See ECF No. 231-11 at 1070.)
On cross-examination, Dice pointed out that Allen was “basically” a traffic enforcement officer. (See id. at 1073.) Dice verified that Allen made a statement that he saw “a male white come staggering out of the driveway where the suspect had run, holding his stomach.” 13 (Id. at 1074.) The statement continued, “He fell in the grass beside the driveway as if he was shot. I did not hear the gunshot.” (Id.) Allen carried a Smith & Wesson .38 with a four-inch barrel, which held six bullets. *948 (See id.) He fired six bullets that day; five shots went into the garage. (See id.) He stated that Stovall was yelling something to him that day, but Allen did not “have any idea what [Stovall] was yelling.” (Id. at 1075-76.) Allen did not have his weapon out when he first got off the motorcycle; he did not pull it out until he was running down the driveway. (See id. at 1076.)
Allen testified that the MPD had a policy that an officer could use deadly force on a fleeing felon. (See id.) He testified that he took his gun from the holster to use it “[i]f need be.” (Id.) Allen testified that the fence in State’s Exhibit 10 (EOF No. 284-21) played no role in the shooting incident. (See ECF No. 231-11 at 1078-80.) He stated that a continuation of the fence in the picture was the fence that he and the suspect went over. (See id. at 1080)
(7) Testimony of Barbara Benbrook
The State’s seventh witness, Barbara Benbrook, lived at 230 Hawthorne, Apartment 4, approximately six houses north of Poplar Avenue in August, 1980. (See id. at 1083.) The address is on Hawthorne, between Poplar and Lawrence. (See id. at 1084.) Auburndale is the next street to the west. (See id.) On August 9, 1980, between 1 and 2 p.m., Benbrook was sunbathing on the terrace on the second level between the two apartment buildings. (See id.) Benbrook described what she saw that afternoon:
Well, the first thing I noticed — of course, I was lying down, sunbathing, and it’s such a quiet neighborhood that I was — you’re very, very conscious of a loud noise, and I heard a car speed by— I mean — I don’t know how fast, it looked like 60 miles an hour, or something, but it went by very quickly, and it was followed by, I believe an unmarked police car and then, I think, a motorcycle was behind that. And I just sort of looked up, and I noticed all that activity, and of course after hearing it. Then it disappeared, and my first thought was — you know, something’s going on and somebody’s trying to get away from someone, or something. But, anyway, the next thing I knew a helicopter went over, and — My neighbor and I were out there and were just sort of playing around, I didn’t know what was going on. And then I heard a gunshot — but I didn’t know that was what it was ... I just heard this loud noise. At first, I thought it came from the helicopter, I didn’t know.
And then within a few minutes, I don’t know exactly how many minutes, I heard quite a few more gunshots — I don’t recall the exact number. And it was as though they happened almost to the — at the hedge out by the street. And when we heard those, it was — natural instinct, we were scared to death, we thought we were going to be hurt, or something, and we ran inside. My neighbor and I did, into my apartment.
(Id. at 1085-86.) Benbrook and her neighbor went to the window and saw someone running from the hedge towards their building. (See id. at 1086.) She described the man as “sort of hippie looking [with] long hair, ... horn rimmed glasses, a full beard, and — not very tall, maybe 5'8"”, unkempt, and running very quickly. (Id.)
After Benbrook and her neighbor saw the suspect come towards the building, they went to Debbie Staggs’s apartment because it was in the front of the building. (See id. at 1087.) They looked out her front window and saw a policeman limp across the sidewalk and fall in the grass. (See id.) Soon thereafter, they saw their neighbor Doug Clark lying in his front yard. (See id. at 1087-88.)
Benbrook looked at two sets of photographs at a MPD station. (See id. at 1088.) One group of photographs depicted *949 men that were more conservative looking with short hair, and the other depicted men with a more unkempt appearance. (See id.) She picked one photograph from each group. (See id.) Strother passed her two sheets of photographs which he identified as the two groups that she looked at that day. (See id. at 1088-89.) She marked the photographs that she picked out, and the State entered these sheets as State’s Exhibit 13 (ECF No. 284-25 to -27). (See ECF No. 231-11 at 1089.) At trial, Benbrook identified Cone in the courtroom. (See id. at 1090.)
On cross-examination, Benbrook explained her comment that Cone was “hippie” looking in his appearance. (Id. at 1092-93.) She stated that she meant he had “extremely long hair as in shoulder length or a little bit longer” and a full beard. (Id. at 1093.) She testified that the trial was the third time that she had seen the pictures, and she did not recall initialing them when she first saw them. (See id. at 1093-94.)
(8) Testimony of Deborah Stanford
The State’s eighth witness was Deborah Stanford (formerly Deborah Staggs), who lived at 230 Hawthorne, between Poplar and Lawrence, in August of 1980. (See id. at 1095-96.) Stanford was the neighbor who was sunbathing with Benbrook on the afternoon of August 9, 1980. (See id. at 1096.) She testified:
When we were sitting there we first noticed a car going across the front of the apartment, going real fast, and we remarked that, you know, something must be up and they’re probably going to get caught, but they were really speeding. And just a few seconds behind that car was another car and a police motorcycle. And within a few seconds after that we heard — what sounded like gunshots, or something, and a police helicopter went [overhead], and we got up and went inside.
Well, we first went into Barbara’s apartment, I think, and looking from her window we saw a white male come across the front lawn, toward us, and go between the two buildings.
(Id. at 1096-97.) She described the man they saw as “mid-twentyish — white, longish hair, medium height — medium build, had on an open shirt, not buttoned, and shorts.” (Id. at 1097.) She stated,
When he disappeared out of our sight, there appeared several policemen in the front yard; one that looked like he’d been shot, was limping, sat down on the front lawn. A couple of other officers, and then several — what I think were officers from the TACT Squad, they were dressed differently and had rifles, I guess. They continued chasing him. Two or three of them stayed with the officer that had been shot.
(Id. at 1098.) As the man went toward the rear of the apartment, Stanford heard “a couple more shots.” (Id.) She saw her neighbor Doug Clark lying in the front yard a little while later. (See id.) Stanford could not identify Cone at trial as the person she saw that day. (See id. at 1099.)
(9) Testimony of John Douglas (“Doug”) Clark
The State’s ninth witness was John Douglas (“Doug”) Clark. (See id. at 1100.) Clark was visiting relatives who lived on Hawthorne on August 9, 1980, around 1 p.m. when he heard a commotion. (See id. at 1100-01.) He testified:
Initially, I heard a car trying to pull up into a driveway, and skidding gravel around, and then I saw the car pull up behind some bushes, and another car pulled up on the street next to it, and a man got out of the car on the street and told the other car to stop. At that point, the first car started driving across some *950 yards, towards me — I was about four houses north. And then the first car drove out into the street and kept going, and the second car chased him, and then a motorcycle officer chased — followed the chase.
{Id. at 1101.) The cars went north on Hawthorne. {See id. at 1101-02.) Clark went back to where the first car pulled into the driveway to see if it had hit a parked car. {See id. at 1102.) Clark stated:
At that point, I started walking back towards my house — my parents’ house, and I saw a man who I suppose was the first man — the man in the first car, I didn’t get a good look at him in the car, running back south, he had gone north and then was running back south, and— wasn’t running very fast, and he ran behind the house next door to my parents, and I realized that he was being pursued and was getting away, so, I ran back down my parent’s driveway to cut him off, and I picked up a vinegar bottle and confronted him about fifteen feet away and asked him where he thought he was going.
I remember hearing something that sounded like firecrackers. I didn’t know what it was. It was muffled.
{Id. at 1102-03.) When Clark went behind the house and picked up the jug, 14 he said, “Hey, buddy, where do you think you’re going[?]” {Id. at 1104.) Clark testified that the man looked at him for a brief second. {See id.) Clark then saw the gun at the man’s hip, and the man “just calmly shot me in the stomach” from about fifteen feet away. {Id.) Clark described the individual that shot him as having “fairly long black hair; looked like he hadn’t shaved for a week or two weeks, or if he was trying to grow a beard he hadn’t trimmed it; sweating a little bit.” {Id. at 1105.) 15 The individual was a white man with an untucked shirt that was unbuttoned and a gray T-shirt. {See id.) He was wearing shorts. {See id.) The individual was running very slowly when Clark first saw him, but when he saw Clark, he stopped. {See id.)
After Clark was shot, he walked back to the front of the yard to try to get away from the man. {See id. at 1105-06.) As a result of the shooting, Clark had a shattered knuckle in the center of his left hand and had to have approximately two feet of small intestine resected. {See id. at 1106.) Additionally, his right external iliac artery had to have a graft. {See id.) The bullet remained in his body, against his pelvic bone. {See id.)
Clark identified three photographs, which were entered as State’s Exhibit 15 (ECF No. 285-1): (1) his brother’s house at 224 Hawthorne; (2) a grape juice jug that Clark picked up; and (3) the front yard of the house north of his brother’s house, with the mat on which Clark was placed after he was shot. {See ECF No. 231-11 at 1106-07.) Clark identified two photographs as the back yard of the house north of his brother’s house “probably from the view that the man that shot me had” and the same backyard from the spot where Clark was standing. {Id. at 1107.) These photographs were entered into evidence as State’s Exhibit 16 (ECF No. 285-2 to -3). {See ECF No. 231-11 at 1107.) Clark marked an “X” on the photo where *951 he was standing, and a “Y” where the shooter was standing. (See id. at 1108.)
Clark identified an aerial photograph of Hawthorne, Auburndale, and another street, which was entered as State’s Exhibit 17 (ECF No. 285-4 to -6). (See ECF No. 231-11 at 1108-09.) On this picture, Clark noted the location of the shrubbery, where the car pulled up, and the driveway he went down prior to being shot. (See id.)
Clark identified gym shorts, socks, tennis shoes, and the T-shirt that he was wearing that day. (See id. at 1110-11.) The gym shorts were entered as State’s Exhibit 18 (ECF No. 285-7 to -8). (See ECF No. 231-11 at 1111.) Clark pointed out the blood on the shorts and the hole that resulted from the bullet going through them. (See id.)
On cross-examination, Dice clarified that Clark witnessed the chase on two different occasions on the same day. (See id. at 1113.) Clark explained that the jug was in the yard, and that he picked it up about halfway through his run. (See id. at 1114.) When Clark saw the man, Clark said something to him, and “that was the confrontation.” (Id.) Clark had the jug in his hand at that time. (See id. at 1115.) He was face to face with the man “a couple of seconds” before being shot; the man “seemed to be in control.” (Id. at 1115-16.)
(10) Testimony of Charles Slaughter
The State’s tenth witness was Charles Slaughter, who lived in a townhouse at 143 North Auburndale, between Poplar and Madison. (See id. at 1117, 1119.) He was at his house on August 9, 1980, between 1 and 2 p.m., working on his daughter’s car. (See id. at 1117-18.) He saw a white male come down the driveway “dressed in shorts, with no shirt, and he had a — some type of garment draped across his right hand.” (Id. at 1118.) The man was walking briskly. (See id.) Slaughter testified that the man “wore glasses, and that kind of struck me that the glasses were clear lens and — I don’t know, I picked up on the glasses for some reason.” (Id. at 1122.)
Patterson showed Slaughter a group of seven photographs. (See id. at 1118-19.) Slaughter testified that he had previously been shown these photographs, that he identified one photograph as depicting the man that came through the alley or driveway, and that he signed his initials on the back. (See id. at 1119-20.) The photographs were entered into evidence as State’s Exhibit 19 (ECF No. 285-9 to -11). (See ECF No. 231-11 at 1120.)
Patterson presented Slaughter with an aerial photograph of the area south of Poplar near St. Peter’s Home for the Elderly. (See id.) Slaughter identified his driveway on the aerial photograph. (See id.) The photograph was entered into evidence as State’s Exhibit 20 (ECF No. 285-12 to -15). (See ECF No. 231-11 at 1121.) Slaughter marked the path that the man took. (See id. at 1121-22.)
On cross-examination, Slaughter described the man he saw that day as follows:
The only thing I saw, I turned around and this particular person somewhat startled me. He seemed to be coming toward me. I remember him wearing glasses, gold-rimmed glasses. His hair was about shoulder length. He had no shirt on, and he had a shirt — piece of cloth, or something, I assumed it was a shirt, over his right hand and arm. I couldn’t see his right hand. He had a beard. He grinned a funny kind of a grin and muttered something and then walked on by. I turned to see which way the man went, and he proceeded west and turned back south in the alley, *952 and I couldn’t see where he went after that.
(Id. at 1123-24.)
(11) Testimony of Debbie Howell
The eleventh witness presented was Debbie Howell (formerly Debbie Slaughter and now Debbie Slaughter-Crawford), Charles Slaughter’s daughter. (See id. at 1127.) She was visiting her father between 1 and 2 p.m. on August 9, 1980. (See id.) She testified that she saw a white man wearing “cut-offs” and “something draped over his right hand” come through the complex. (Id. at 1127-28.) The man was not wearing a shirt. (See id. at 1128.) She stated that later that day, the police came, and she had the opportunity to view a paper and make an identification of the man who came through the alley. (See id.) The paper with Debbie Howell’s identification of the man in the alley was entered into evidence as State’s Exhibit 21 (ECF No. 285-16 to -17). (See ECF No. 231-11 at 1128-29.) The defense did not cross-examine Debbie Howell. (See id. at 1129.)
(12) Testimony of Richard K. Wilson
The State’s twelfth and final witness on the first day of trial was Richard K. Wilson, a twenty-four year employee of the MPD with fifteen years experience as a homicide investigator. (See ECF No. 232-1 at 1130, 1138.) Wilson identified a .38 caliber spent slug and a lead, large caliber slug that were found inside the garage at 242 North Auburndale and entered into evidence as State’s Exhibits 22 and 23 (ECF No. 285-18 to -19; ECF No. 285-20), respectively. (See ECF No. 232-1 at 1130-32.) Patterson’s intention was for Wilson to testify solely for the purpose of identifying the bullets in evidence, however Dice’s cross-examination was more in-depth. (See id. at 1152.) The court recessed at 6:25 p.m. and Wilson’s testimony continued on the following day, Saturday, April 17,1982. (See id. at 1135.)
2. Trial Day Two: Saturday, April 17, 1982, 9:00 a.m. to 5:05 p.m.
a. State’s Proof, continued
(1) Testimony of Richard K. Wilson, continued
The second day of trial began at 9:00 a.m. on April 17, 1982. (See id.) On cross-examination, Wilson testified that he was assigned to the Security Squad, which consisted of five detectives that investigated police shootings. (See id.) Wilson testified that he filled out a supplementary offense report in Cone’s case. (See id. at 1136.) He agreed with defense counsel that these reports included the notes of officers on the scene, that they were dictated, and that the officer reviewed the report and signed it to indicate that the document had been read and reviewed. (See id. at 1136-37.) Wilson testified that he reviewed an offense report in Cone’s case, and to the best of his knowledge, it was true and correct. (See id. at 1137.) Wilson identified the report that he compiled on August 9 and 10, 1980. (See id.) Wilson admitted that he did not interview Benbrook, but that the report included a statement allegedly made by her. (See id. at 1144-45.) Wilson testified that the report included a statement from Allen about the chase and shooting and that Wilson interviewed the Slaughters at 8:45 p.m. (See id. at 1147-48.) Wilson testified that the supplementary offense report was put in the attorney general’s file at a certain stage of the case and that the report would have been in their files for many months. (See id. at 1149.)
On re-direct, Wilson testified that the first page of the six-page report was taken right after Allen was shot and was in the hospital. (See id. at 1149-50.) Wilson took a statement from Allen on Wednesday, August 13, 1980. (See id. at 1150.) Wilson stated that the shoes in State’s *953 Exhibit 7 (ECF No. 284-17) were taken from the suspect’s Oldsmobile at the city lot on Sunday, August 10, 1980. (See ECF No. 232-1 at 1151-52, 1154.) Wilson testified that Allen’s trousers, State’s Exhibit 11 (ECF No. 284-23), appeared to have one hole — an exit wound. (See ECF No. 232-1 at 1154.) Wilson then stated that there was another hole inside the left pocket. (See id. at 1155.)
On re-cross, Dice verified that the report stated that “[tjhere was an entrance hole on the left side of the pants, with no exit hole in the pants.” (Id. at 1156.) Wilson admitted that the second statement taken by Allen was part of the offense report. (See id. at 1167.) 16
(2) Testimony of Herschel Dalton
The State next called Herschel Dalton, who lived at 143 North Evergreen, to testify. (See id. at 1187.) Dalton described the events on the afternoon of August 9, 1980, as follows:
I went out into my back yard to get in my car and run over to the grocery store. And to get out into the street, I have to maneuver my car out of the garage into — aim it into the driveway, and I was in the process of doing this when this man ran around from the other side — the other half of the duplex — into the back yard, and ran up to me as I was backing out, and he said, ‘Wait a minute”, so I did. I stopped moving the car and asked him what he wanted. So he held up a gun and said, “I want your car.” And immediately I stopped my motor running, pulled the key out of the ignition, and started opening the door. And started talking to him, to stall for time. At first, I believe he wanted me to just move over, and let him get in the car. But I was already getting out before he had — hardly had a chance to say this.
So, I got out of the car completely, and he wanted — he held out his hand for the key, as I recall, and wanted them, of course, and I refused to give them to him. I could see — I could see a look of desperation in his eyes, and I looked around for some possible escape route— because I really needed to hang on to that car, and my life. I felt like it was damned if I do, damned if I don’t, as far as my life was concerned, because I felt like he was desperate enough to kill me whether he got — whether I immediately gave him the car or not.
And — -The car was just newly purchased by my mother, it was her car and she was dying of cancer, and I needed the car badly. And — I wasn’t going to give my life up for the car, but I looked for a way to escape, and I was very close to some bushes that ran — that were all the way down the side of my short driveway to the street, and I backed toward this, very slowly, as I argued with him.
*954 And then I just — freaked him out. I just — He said, “Give me those keys or I’ll shoot you,” as I recall him saying, almost a year and a half ago now. He— And I said, “Well, I’m not going to give you the keys.” I yelled at him as loud as I could, and, “You can just shoot me,” I said, “Godammit!” and it freaked him out, he just didn’t know what to do. And I started bursting into a run by then, right as close into these bushes as I could, and I made it to the street. Well, as I was very near the street, I started hearing a clicking sound, and I knew what that must be, and I looked back and there he was, aiming the gun at the sky and just clicking away, and I could see a very frustrated look on his face that the gun had been empty, after all.
And so I ran out into the street, and I saw a helicopter very low and close overhead, and I put two and two together— obviously, they must be looking for him. And I jumped up and down and waved— It was broad, bright, daylight day. I figured surely they could see me. If they were looking for some guy that would be, maybe, skulking around the bushes, maybe they could see me. And they didn’t, they didn’t see me.
And so, I looked back toward my house to see if he was — Well, I went over into the neighbor’s yard, to the immediate north of my house, to see if I could peer in the back yard and see if he was back there. And I couldn’t see him. I still waited a little bit before I went back to my house, because my girlfriend was in there and I certainly wanted to protect her. I finally decided maybe he wasn’t going to come around in front of the house with a reloaded gun, so I ran for my front door as fast as I could, banged on the door, she unchained it, I went in and called the police, and that was — That’s all there is to it, really.
{Id. at 1187-90.)
Dalton was presented with five photographs of his residence, automobile, and driveway as they existed on August 9, 1980, which were identified and entered into evidence as State’s Exhibit 24 (ECF No. 285-21 to -23). {See ECF No. 232-1 at 1190-93.) Dalton identified a photograph, which was entered as State’s Exhibit 25 (ECF No. 286-1 to -3), that showed Evergreen Street and the back yard of the houses on Belvedere including his house. {See ECF No. 232-1 at 1193— 94.) Dalton marked “HD” on State’s Exhibits 20 and 25 (ECF No. 285-13 to -14; ECF No. 286-2 to -3) to show his house. {See ECF No. 232-1 at 1194-95.)
Looking at State’s Exhibit 19 (ECF No. 285-10), Dalton testified that he could not narrow his identification beyond two photographs, Numbers 3 and 6. {See ECF No. 232-1 at 1196.) He wrote on the back of both of those photographs (ECF No. 285-11). {See ECF No. 232-1 at 1197.) Dalton identified Cone in the courtroom as the person who approached him on August 9, 1980. {See id. at 1197-98.) On cross-examination, Dalton testified that the Number 6 photograph stood out from the others because of its color. (ECF No. 285-10; see ECF No. 232-1 at 1203.)
(3) Testimony of Lucille Tuech
Next, the State called Lucille Tuech, who on August 10, 1980, lived in a twelve-unit dwelling on Belvedere. {See ECF No. 232-1 at 1205.) Tuech described what happened about 8:30 a.m. {See id.)
Well, I was eating my breakfast out on my little screened-in porch, and I walked into my kitchen and walked over to the sink, and — at about that time, a man appeared at my back door.
*955 He had shorts — raggedy shorts, and they were bluish/grey color.
He carried a paper cup — a flat paper cup in his right hand. And his left hand was always behind him.
He was not too tall, I’d say he was about 5'6", and he could have weighed 160 pounds.
[H]e had long, scraggly brown hair, and a two-week — about a two-week growth of beard.
The first thing he asked me was, “Do the Manleys live in this building?” and I said, “No, nobody by that name in this building.” And he said, “Now, that’s strange,” and then he — I said, “Well, maybe they live on the street back of me, Evergreen,” and he said, “Well, maybe so.” And he didn’t leave, he just stood there. And I thought that was strange. Then he said, “May I use your phone?” And I said, “No, you may not.”
Then he stood there, and finally he said to me, “Is there a pay phone close by?” and I said, “Yes, right across the street.” And about that time, I knew something was wrong there, and I was going to get my door shut. Just as I put my hand on the door, he brought his right — his left hand right — pointing his gun at me.
It was a short gun, a short gun, not one of the long ones.
(Id. at 1205-07.) There was a hooked screen door between Tuech and the man. (See id. at 1207.) When he pulled the gun, he pointed it at her stomach. (See id.) Tuech stated, “He didn’t say a word; he just stared at me and I just stared at him for a couple seconds and I just banged the door shut — as quick as I could.” (Id.) She ran into the other part of the house and collapsed on the floor. (See id. at 1208.) After about a minute, she called the police. (See id.)
Tuech marked State’s Exhibit 25 with “LT” for her apartment building (ECF No. 286-2 to -3). (See ECF No. 232-1 at 1208.) Her apartment could not be seen in the picture, but she drew an arrow on the exhibit in the general direction of the back door where the man was standing. (See id. at 1208-09.) The next day Tuech saw a photograph of the individual in The Commercial Appeal. (See id. at 1209, 1230.) She identified the photograph that she saw in the newspaper, and it was entered into evidence as State’s Exhibit 28 (ECF No. 286-7). (See ECF No. 232-1 at 1232-33, 1271-72.)
On cross-examination, Tuech stated that she described the man as very dirty with filthy clothes. (See id. at 1236-37.) She said that the person who accosted her kept looking around and appeared nervous. (See id. at 1237-38.) She said, “I just figured he was nervous because he kept watching the entranceway like he didn’t know who was going to come in there.” (Id. at 1238.)
(4) Testimony of Velora Hargett
The State’s next witness was seventy-five-year-old Velora Hargett. (See id. at 1239.) Hargett and Cleopatra Todd belonged to the same church and same Sunday school class; Hargett took Cleopatra Todd to and from church every Sunday morning. (See id.) Hargett identified a photograph of Cleopatra and Shipley Todd, which was entered into evidence as State’s Exhibit 26 (ECF No. 286-4). (See ECF No. 232-1 at 1240.) Hargett testified that Shipley Todd was over ninety years old, and Cleopatra Todd was “somewhere in her 70s.” (Id.) Hargett picked up Cleopatra Todd at around 8:45 a.m. and took her to church at Madison Heights *956 United Methodist Church on August 10, 1980. (See id. at 1241.) The church was about two miles from the Todds’ house. (See id. at 1241-42.) They returned to the house about 12:20 or 12:30 p.m. (See id. at 1242.) Hargett drove in front of the house and stopped, and Cleopatra Todd got out. (See id.) Hargett did not wait for Cleopatra Todd to get in the house. (See id. at 1242-43.) Hargett testified that Cleopatra Todd was “alive and well ... so well that in the winter time when my car wouldn’t start, I’d walk from my home to her home, and she’d be dressed and ready, we’d walk from there onto the church and back.” (Id. at 1243.)
(5) Testimony of Gregory W. Moore
The State then presented the testimony of Gregory W. Moore, the Todds’ grandson 17 who lived in Union City, Tennessee. (See id. at 1246.) The Todds had been married for forty years. (See id.) Moore testified that the photograph at State’s Exhibit 26 (ECF No. 286-4) truly and accurately portrayed the Todds. (See ECF No. 232-1 at 1247.) They lived at 121 North Evergreen. (See id.) On August 10, 1980, Moore’s mother had tried to contact the Todds, but she could not reach them. (See id. at 1247-48.) That Wednesday, Moore called Mr. Adams, a friend that lived across the street from the Todds. (See id. at 1248.) Later that afternoon, the police informed Moore that the Todds had been killed. (See id.) The police explained that they were going to investigate and that it would be best to wait and go to the police station the following morning. (See id.) They went to the police station the next morning. (See id.)
Moore last saw the Todds in July in Union City. (See id. at 1249.) Shipley Todd, who was ninety-three years old, was “alive and well” and in good health. (See id.) Cleopatra Todd was seventy-nine years old. (See id.) Moore was the executor of his grandparents’ will, and as a result, he received the long-distance telephone bill. (See id. at 1249-50.) The phone bill had a four-minute call to Chicago, Illinois, on August 10, 1980, at 3:24 p.m. (See id. at 1250.) Moore identified the phone bill, and it was entered into evidence as State’s Exhibit 27 (ECF No. 286-5 to -6). (See ECF No. 232-1 at 1250-51.) Moore did not know Gary Bradford Cone or Sue Cone, and to the best of his knowledge, the Todds did not know them either. (See id. at 1251.) Moore testified that the Todds would not have any reason to call anyone in Chicago. (See id.)
(6) Testimony of Paul Adams
The State called Paul Adams, who lived at 100 North Evergreen, about three lots “[diagonally north” of the Todds’ home. (Id. at 1255.) Adams knew Mrs. Todd well; Mr. Todd did not “mix much with people.” (See id.) Adams identified the individuals in the photograph at State’s Exhibit 26 (ECF No. 286-4) as the Todds. (See ECF No. 232-1 at 1256.) In August 1980, Greg Moore called and spoke with Adams’s wife. (See id. at 1257.) Moore told her that they had not been able to contact the Todds, and he wanted the Adamses to go check on them. (See id.) Adams’s wife called Mary Maguire, a neighbor who lived about three houses north, and Maguire and her son walked across the street and talked to the Todds’ next door neighbor. (See id.) Maguire reported back, and Adams called the police. (See id. at 1257-58.) Adams told the police “that there was something bad wrong at this house, where the Todds lived. And that we felt like they ought to investigate.” (Id. at 1258.) The police came to Adams’s house, and he told them where the Todds’ house was. (See id.) *957 The defense did not cross-examine Adams. (See id.)
(7) Testimony of Mary Maguire
The State then called Mary Maguire, who lived at 116 North Evergreen, located across the street and one house over from the Todds. (See id. at 1259.) On August 13, 1980, Mrs. Adams called Maguire and asked if she had seen the Todds in the last few days. (See id. at 1260.) Maguire said that she could not recall. (See id.) Mrs. Adams then said that the Todds’ grandson had called and said that the Adamses had called the Todds and had not received an answer. (See id.) Mrs. Adams wanted to know if Maguire would go across the street and check on the Todds. (See id.) First, Maguire sent her son to ask the girl next door if she had seen the Todds. (See id.) The girl said that she “really [didn’t] know when [she had] seen them last.” (See id. at 1261.) Maguire glanced on the Todds’ porch and saw two or three newspapers and mail overflowing the mailbox. (See id.) Maguire testified:
And, immediately, I thought this was bad, because usually Mr. Todd would be out on the porch in the afternoon, reading the paper or getting the mail — he would be waiting for the mail. And I thought this was a bad sign. And we both agreed to this. So we went down the driveway between her house and the Todd[s’] house, and we noticed flies swarming all over that side door. Then we went around to the back door, calling to them — and, of course, we didn’t get any answer.
Well, we had a very uneasy feeling about it....
(Id.) Maguire went down to the Adams’ house and told them what they had found; Adams tried to call the Todds but got no answer. (See id. at 1261.) Adams called the police, and Maguire went back to the Todds’ driveway to wait for the police to arrive. (See id. at 1262.) The police went in briefly, came out, and waited for the other emergency personnel. (See id.)
(8) Testimony of Steven R. Cole
The State then called Steven R. Cole, uniform patrol officer for the MPD’s west precinct, as the next witness. (See id. at 1264.) Cole was working from 4:00 p.m. to midnight on August 13, 1980. (See id.) He received a complaint call from Adams. (See id. at 1265.) When he arrived at 121 North Evergreen, he spoke with complainants Mary Maguire and a Ms. Rasp. (See id.) Cole parked in the driveway of 121 North Evergreen and went to the front door and noticed several newspapers on the front porch and mail protruding from the mailbox. (See id.) Cole knocked on the door and did not get a reply. (See id.) There was a door open on the north side of the house, but the storm door was locked and covered with flies. (See id. at 1265-66.) Cole went to the west side or rear of the house, and found a screen door covered with flies. (See id. at 1266.) Cole and his partner called inside but did not get a response. (See id.) The back door was not locked; the screen door was closed, and the wooden door was open. (See id.) When Cole and his partner first went in the house, there was a “real foul odor.” (Id.) Cole went to the left through the kitchen, where he found a dead woman. (See id.)
She was on her left side with her head facing east, which is the front part of the house, and she had on some type of a white top that was pulled up to — about her breast, had on a girdle and pantyhose, and her body was real swollen and it’d started to burst, it appeared. And she had newspapers laid over the top of her head.
(Id.)
Cole went into the living room and found a dead man lying on his back in front of the couch. (See id. at 1267.)
*958 He was dead, on his back, and he had some type of a towel — looked like sort of a turban the way the towel was wrapped around his head and it came down to— just past the bridge of his nose, and he had dried up blood coming down both of his arms — Just like the lady, she was in a large puddle of blood, and it was mostly dried up, like they’d been there for a period of time.
(Id.)
Cole and his partner back-tracked out of the house, the way they had come in, and tried not to disturb the crime scene. (See id.) They called for a lieutenant. (See id.) Once the lieutenant arrived, they re-entered the house and checked for other victims and a suspect. (See id. at 1267-68.) They did not let anyone in the house except for the investigators. (See id. at 1268.) The defense did not cross-examine Cole. (See id. at 1270.)
(9) Testimony of Marjorie Todd Moore
Marjorie Todd Moore of Union City, Tennessee, was the next person to testify for the State. (See id. at 1273.) Shipley Todd was her father, and Cleopatra Todd was her stepmother. (See id.) Moore testified that the last time she saw them was around June 30, 1980. (See id. at 1273-74) The last time she spoke with them was Friday, August 8, 1980. (See id. at 1274.) She was very close to both of them. (See id.) Moore testified that they did not know Gary Bradford Cone, Sue Cone, or anyone in Chicago that the Todds would have called long distance. (See id.) Moore had tried to call the Todds “all day long Monday, Tuesday and Wednesday, constantly, at different times of the day, ... and I tried all times during the day.” (Id.) She testified that they were both hard of hearing and thought that their phone may not have been ringing or was out of order. (See id.) Moore was not successful at reaching the Todds on any of those days. (See id. at 1275.) She asked her son what to do, and he said he would call Adams to see if there was anything wrong with the phone or with the Todds. (See id.) Prior to that, Moore had contacted the telephone company in Union City, who contacted the Memphis telephone company. (See id.)
Moore testified that her father was ninety-three years old, and her stepmother was seventy-nine years old. (See id. at 1276.) Shipley Todd was very hard of hearing, and he had gout. (See id.) He was about five feet six inches or five feet seven inches tall and weighed approximately 145 pounds. (See id. at 1278.) Cleopatra Todd weighed approximately 150 to 160 pounds. (See id.) Moore identified the picture at State’s Exhibit 26 (ECF No. 286-4) as her parents. (See ECF No. 232-1 at 1278.)
Moore testified about the couple’s normal routine on Sunday:
Well, my stepmother went to Sunday School and church every Sunday, barring illness. And — My [D]ad did not go, because he was so hard of hearing that even with a hearing aid he could not hear. And then when she would get home from church, she would prepare their meal, and they would eat. And in a short while, Dad would go to bed on the couch in the living room for a nap, somewhere, I would say, in the neighborhood of 1:00 to 2:00. And then in the afternoons, maybe read the paper, or sit on the porch, as their house was not air-conditioned. And that about covers what they did on Sunday.
(Id. at 1276-77.)
Moore testified about how she learned of the Todds’ death:
My son came to the restaurant where I was eating, and called me outside, and told me that the Union City police had called and said that Dad and Clee had been killed, and we immediately went to *959 our place of business where we have two phones and started calling the relatives, and that’s about it.
{Id. at 1277.) 18
(10) Testimony of Wayne A. Todd
The State called Wayne A. Todd as the next witness. {See id. at 1282.) Wayne Todd identified the persons in the photograph at State’s Exhibit 26 (ECF No. 286-4) as his grandparents Shipley and Cleopatra Todd. {See ECF No. 232-1 at 1282.) Wayne Todd identified their bodies at the county morgue. {See id. at 1283.) The defense did not cross-examine Wayne Todd. {See id.)
(11) Testimony of James Spencer Bell, M.D.
The next witness called by the State was James Spencer Bell, M.D., who was employed as an associate professor of pathology at the University of Tennessee Center for the Health Sciences and as the Chief Deputy Shelby County Medical Examiner and Deputy Chief State of Tennessee Medical Examiner. {See ECF No. 232-2 at 1284.) Bell was qualified as an expert in forensic pathology. {See id. at 1286.) On August 13, 1980, at 6:22 p.m., Bell received a call from the MPD about the homicide at 121 North Evergreen. {See id. at 1286-88.) Shortly thereafter, Bell arrived on the scene, identified the first individual that was dead in the living room, and proceeded into the hallway area where a second individual was dead on the floor. {See id. at 1287.) Bell then described the cursory examination that he made and his findings:
I also, in examining them, noticed that they were dead and had been dead for some amount of time; noticed that there were wounds about the head of both of them; that the one in the living room area — the male individual on the floor, appeared to have insect larvae apparently around his head area. There were numerous insects, flies, and insect larvae, maggot-like items, on the — and about the premises. There was a strong, foul odor in the room, as well as in the hallway. I noticed that blood had run down the right arm of the female [decedent] lying in the hall. This had run down the arm for several inches— eight or ten inches worth of run, and then had changed directions on the arm to a 90° change of directions; it had run downward and then forward on the arm. I notice that she also had head wounds present[.]
It means that the individual was upright when the bleeding occurred to allow it to run down the arm, and then the individual has moved from that initial position, suqh that now the arm is turned so the blood ean ehange directions and run more toward the ground forward. So, the arm has been in two positions with bleeding occurring. With blood drainage occurring.
I also noticed that there was blood on the floor and smear of blood and material on the floor, sort of a greasy material, which is the material that when deceased individuals decompose — sort of the fatty material seeps out and becomes greasy on the floor. This was observed on the floor.
There was apparently some — sort of linen, or sheet-like material, as well as newspapers, sort of under as well as *960 slightly on the remains that were lying on the floor in the hallway.
(Id. at 1288-89.)
Bell stated that they “had been dead longer than a few minutes, or longer than a few hours, because they had started to undergo decomposition, or autolysis, and the insects were starting to be attracted to them, as well as the odors in the area.” (Id. at 1290.) Bell testified that the decomposition “suggests to me that the death of these individuals was a period of days, like a day or two or three.” (Id. at 1292.) Bell noted that the smear of blood on the floor between Cleopatra Todd and the front door indicated that the body had been moved. (See id. at 1305-06.)
Bell performed an autopsy on Cleopatra Todd, and the external examination revealed the following:
As I’ve mentioned before, [an] individual undergoing decomposition who had multiple lacerations and bruises around the head area. These lacerations or skin tears, as well as bruises of the skin, occurred around the face-forehead area, on the back right side of the head, a few on the left side of the head, and numerous ones in the right side of the head. There were also pools of fluid, as well as bruising of the extremities, present.
(Id. at 1293.) Bell testified that Cleopatra Todd was five feet four-and-a-half inches tall and 119 pounds. (See id. at 1294.) There were numerous lacerations, contusions or bruises to the hands, arms, and fingers. (See id.) The right middle finger at the last knuckle joint and the right ring finger were bruised. (See id.) There was bruising and pooling of fluid on the back side of the right hand. (See id.) These injuries occurred close to the time of death and were consistent with a defensive wound or “someone trying to ward off somebody who is attacking them, or beating upon them, and they attempt to place their hand to protect — either their body, or their head.” (Id. at 1294-95.) There was “bruising of the left hand also, in the region of the index finger and knuckle” and “an abrasion and a bruise of the right elbow.” (Id. at 1295.) The left hand injuries were defensive wounds. (See id.)
There were twenty-two wounds, including scalp lacerations and tears, to the head, and also other bruising. (See id. at 1295-96.) These wounds “represented] an attempt to subdue the individual, or produce more than subduction, possibly death in the individual.” (Id. at 1296.) Each wound represented a separate blow. (See id.) The wounds were located at the “left forehead, the right forehead, above the right eye, in the back of the head, a few on the left side, and then numerous ones on the right side of the head.” (Id.)
Bell’s internal examination revealed the following:
There was a massive comminuted, multi-fragmented, fracture of the skull on the right side, extending from just behind the right eye, going back to behind the ear to the back side of the head, where the bone was crushed like an eggshell, and had been driven [into] the brain, tearing the covering of the brain, and the brain.
(Id.) Bell testified that this injury was the result of multiple blows, “at least 10 in that area.” (Id. at 1297.) Based on Cleopatra Todd’s gastric contents, Bell determined she had been dead “more than a day and less than a month, and less than a week.” (Id. at 1297-98.)
Bell then testified about his external examination of Shipley Todd:
He was 68-1/2" tall, and weighed 116 pounds. He also had multiple lacerations to the head, and bruises of the head. He had some lacerations and bruises of the right posterior neck. His head lacerations and bruises consisted of only one laceration of the right side of *961 the head, about five on the left side of the head, but all the rest of them were in the back of the head, totaling a total of 16, in total, which means that 9 were in the back of the head.
He had lacerations of the hands, and fingers, also.
... The hand wounds — specifically, the right hand included a laceration on the dorsal aspect to these lacerations; the left hand included a laceration of the left middle finger, and sort of turning of the little fingers of both hands.
(Id. at 1298-99.) These wounds were consistent with defensive wounds. (See id. at 1299.)
Bell’s internal examination revealed, a depressed skull fracture — that means the skull had been shoved in, again, as I’ve mentioned before, against the brain covering and against the brain, on both the left side and on the right side and on the right back side. This fracturing and breaking of this skull allowed the skull to move into and tear the covering of the brain and produce [hemorrhage] in the brain.
(Id. at 1299.) Sixteen blows struck Shipley Todd crushing his skull and driving it into his brain. (See id. at 1299-1300.)
The cause of death for both of the Todds was “[m]ultiple blunt trauma to the head.” (Id. at 1300.) The blunt instruments that were used would be consistent with “something approximately an inch, or so, in diameter, possibly a hammer or possibly the heel of a knife, or a weapon, a gun.” (Id.)
Bell identified containers where he placed hair from the Todds’ heads, and they were admitted into evidence as State’s Exhibit 30 (ECF No. 286-13 to - 18). (See ECF No. 232-2 at 1304.) Bell was excused without cross-examination. (See id. at 1306.)
(12) Testimony of Ruth Shreve
The next witness called by the State was Ruth Shreve. (See ECF No. 232-2 at 1350.) She testified that in August of 1980, she drove her car to work at Warren Radio Company on 180 South Cooper and parked on the side of the building. (See id. at 1350, 1352.) A customer came in on the afternoon of Friday, August 8, 1980, and asked about the missing license plate on Shreve’s car. (See id. at 1351.) Shreve identified her license plate, and it was admitted into evidence as State’s Exhibit 31 (ECF No. 286-19 to -20). (See ECF No. 232-2 at 1350-51.) The second day of trial concluded at 5:05 p.m. on April 17, 1982. (See id. at 1356.)
3. Trial Day Three: Monday, April 19, 1982, 10:45 a.m. to 6:45 p.m.
a. State’s Proof, continued
(1) Testimony of Jimmy Hammers The third day of trial began at 10:45 a.m. on Monday, April 19, 1982, with the State’s presentation of MPD officer Jimmy Hammers of the Violent Crimes Bureau. (See id. at 1392.) On August 13, 1980, Hammers received a call to go to 121 North Evergreen. (See id. at 1393.) Captain Tommy Smith briefed Hammers and Sergeant B.O. Wheeler on their arrival, and they entered the house through the rear door “as it was open and the front door was locked.” (See id. at 1393, 1415.) As they started in the back door, Hammers noticed on the north panel “what appeared to [be] a bare footprint.” (Id. at 1394.) Hammers noticed the broken “eye of a screen hook ... the little round piece where the screen door hook fastens into and keeps the screen door closed” had been broken from the screen door and was lying on the second step from the top. (Id.) Hammers described the scene as he entered the house:
As you entered the back door you enter a small hallway, take — after taking *962 approximately three or four steps, immediately on your left would be a small bathroom. After looking into the bathroom, observed a sink, commode, a green and white towel on the floor underneath the sink. Observed that there was hair in the sink, hair around on the floor around the commode, also hair on the toilet seat itself, and in the toilet, and also hair in the bathroom sink. Also, there was a bottle of aftershave lotion sitting on the sink, and the top of this — aftershave—was off, which made me think that possibly someone had shaved in this bathroom.
After coming out of the bathroom, come back in the hall, walked a few steps where you come to a T-intersection, and on your right was a downstairs — which would have been south, to my right would have been the south side of the house — was a small bedroom, and on the other — the left of that T-intersection, would have been the kitchen.
As we entered the bedroom, there was a bed immediately to your left. A dresser. On this bed, we observed a ladies’ purse, which the contents had been poured out — or lying on the bed beside the purse. There was a newspaper. There was a ladies’ blue dress, and a slip, hanging on the end of the bed. We noticed that in this room — the bedroom, the drawers to the dressers were open. The room gave the appearance that it had been ransacked. There were clothes that had been tossed around, in different places.
There was a knife by the purse on the bed____
(Id. at 1394-96.)
Hammers described the scene in the kitchen:
After you come out of the bedroom, you’d [have] been immediately facing the kitchen, walk down the hall. As you entered the kitchen, noticed there was a body of an elderly female white lying in the floor, with her head in an eastern direction, her feet [were] pointed in the western direction. She was dressed in a beige and brown dress, which was pulled up around her waist, a white panty girdle, and brown hose. One white strap shoe was on her, and there was one white strap shoe by the refrigerator just before you reach the victim. The victim’s face was covered with a newspaper, which we later determined was a Commercial Appeal dated August 8, 1980. The victim was lying in a large pool of blood. There was also flies on the body, around the body. There was a large puddle of body fluid, which had seeped from the body and made the floors very slippery, around the body, and a very strong odor.
There was a pantry there, it appeared it had been ransacked. Drawers had been pulled out. Blood on the door leading from the kitchen to the living room was splattered. Also, on the walls of the kitchen, the refrigerator, and a small table.
(Id. at 1396-97.)
Hammers described the living room area of the Todds’ home:
We left the kitchen, walked through a small entry-way, which would have been in an east direction, into the living room. After entering the living room we noticed on the left — which would have been the north wall — a set of stairs that appeared to be leading up to the second floor. In the center of this room was a couch, with the back of the couch facing north, the front of the couch facing south. And just south of the couch was a coffee table, which had a glass top.
*963 Lying between the coffee table and the couch was a body of an elderly male white. His head was facing a western direction, his feet in the eastern direction. His arms were straight beside him. He was lying on his back. He was dressed in a white undershirt, brown pants, had a pair of brown suspenders on. He was barefooted. He had a white towel wrapped around his face, covering his eyes, which was soaked in blood. There was a large puddle of blood around his head.
The couch was covered with a bedspread, and on the east end — the far east end of the couch was a pillow — bed pillow, and on this bed pillow was a considerable amount of blood, and quite a considerable amount of blood on the east end of the couch.
(Id. at 1397-98.) Blood had either been smeared or wiped just west of the front door. (See id. at 1398-99.) The bodies were not visible from either the front or the back door. (See id. at 1399.) Hammers saw blood splatters on the walls and on the curtains to the right and left of the front door and on the north wall where the stairs lead up. (See id. at 1399-1400.) There were blood splatters on the wall south of the door, and blood spots on a large mirror. (See id. at 1400.) The victim’s billfold was lying on a small, black night stand under the mirror; his identification had been pulled out. (See id.) A cup and saucer with blood spots on them were on the night stand. (See id.)
Hammers and the other officers unlocked the front door and noticed blood on the screen, inside the screen door, and outside the front door, which was wooden and glass. (See id.) Newspapers from August 11-13 were on the porch. (See id.)
The upstairs of the house appeared to be normal. (See id. at 1401.) In the basement, Hammers noticed a cot that someone had slept on or been laying on, and boxes with personal papers and items. (See id.) There was also $1070 in cash in a bank envelope in the basement. (See id. at 1420.)
Hammers identified a set of thirty-nine photographs which he stated truly and accurately portrayed the scene on August 13, 1980; the photographs were entered into evidence as State’s Exhibit 33 (ECF No. 287-1 to -40). (See ECF No. 232-2 at 1401-03.) Hammers went through each photograph describing what each photograph depicted as follows:
1. The front view of the two-story white house at 121 North Evergreen;
2. Three newspapers lying on the front porch at the front door of the house;
3. A photo taken from the front door looking into the living room, in a western direction, showing the lawn chair and the ledger book and pad just west of the front door;
4. The back view of the house showing the back door;
5. Another view of the back door and the five steps leading up to the door;
6. What appeared to be a bare footprint just left of the back door;
7. Photograph taken from standing outside on the back steps, or in the backyard, looking into the back door of the house;
8. The ledger book where someone was listing the items that they had purchased at the store, the date they purchased them, and the amount, and part of the lawn chair in the living room at the front door;
9. The front door showing the porch and the living room;
*964 10. The living room showing the couch where the victim (Shipley Todd) was lying or had been sitting, the pillow, and the newspaper;
11. The couch;
12. The back of the couch;
13. The living room taken from the north showing the direction south;
14. The living room showing the male victim, the coffee table, and couch;
15. Part of the male victim’s feet and the coffee table;
16. Photograph showing where the male victim was between the couch and the coffee table;
17. Photograph taken from the hallway showing the entrance to the kitchen as one enters from the back;
18. Photograph taken in the living room, in a western direction, showing the entrance from the kitchen to the living room;
19. A portion of the kitchen, along with the female victim’s body;
20. Photograph taken from the living room showing the hall entrance into the kitchen where the victim was found;
21. The small bathroom at the rear of the house;
22. The small bathroom showing the location of the sink;
23. The sink showing the hair inside;
24. The commode, showing hair on the floor and around the commode;
25. Photograph showing the commode and the hair;
26. A photograph taken from the hallway looking into the small bathroom, showing the sink and the towel that was on the floor underneath the sink;
27. A photograph taken at the rear of the house as one enters the back door, looking down the hallway, showing a cabinet which had doors open and the drawers pulled out;
28. The bed in the back bedroom, downstairs on the south side of the house, showing a white purse with its contents;
29. The back bedroom showing the bed, the purse, the newspaper, and the blue dress with the white slip hanging on the end of the bed;
30. The back bedroom showing the bed, purse, and a small night table;
31. The back bedroom showing the open chest of drawers;
32. The back bedroom showing the Sunday newspaper, a white purse, a white lacy ladies garment with blood spots on it;
33. The back bedroom showing the television and dresser;
34. The back bedroom showing the night stand on the west side of the bed;
35. The back bedroom showing the television, dresser, and cedarrobe with the doors hanging open;
36. The blood spots on the ceiling in the living room above the mirror and the east wall;
37. The east wall in the living room and the molding with blood spots;
38. The front door taken from inside the house, showing the curtain with blood spots on it; and
39. The living room with a blood smear that had been wiped.
(Id. at 1403-08.) 19
Hammers returned to the Todds’ home the following day on August 14, 1980, at *965 approximately 10:45 a.m., with Sergeant Holder to meet the crime scene investigators. (See id. at 1408, 1415-16.) The following day, he found a closet in the small bathroom that housed the electric meters to the house and several pieces of paper where someone had logged the meter reading each day. (See id. at 1408-09.) The last entry was “829” on August 9. (Id. at 1409.) Hammers identified two pieces of paper with the meter readings as those he found in the house, and they were entered into evidence as State’s Exhibit 34 (ECF No. 287-41 to -45). (See ECF No. 232-2 at 1409.)
Hammers testified that there was a set of rubber gloves that looked like they had been used for yard work in one of the drawers of a cabinet in the hallway. (See id. at 1410.) Hammers and Holder found a butcher knife in the kitchen sink with blood on it which may have been the murder weapon. (See id.) Hammers found more than a dollar in change in Shipley Todd’s pocket. (See id. at 1420.)
(2)Testimony of C.J. Harrell
The State called MPD Sergeant C.J. Harrell of the Crime Scene Squad to describe the evidence that was collected at the Todds’ house. (See ECF No. 232-3 at 1422-23.) Harrell identified a green and white towel collected from the bathroom floor, which was entered as State’s Exhibit 35 (ECF No. 287-46 to -48). (See ECF No. 232-3 at 1423-24.) He identified a broken screen door hook, which was found at the rear door of the house on the steps. (See id. at 1427-28.) The hook was entered into evidence as State’s Exhibit 36 (ECF No. 287-49). (See id. at 1428.) Harrell identified three newspapers, dated Monday, August 11, 1980; Tuesday, August 12, 1980; and Wednesday, August 13, 1980, and seven pieces of mail from the Todds’ mailbox. (See id.) Harrell identified a Norelco electric razor as an item collected from the Todds’ bathroom; it was entered into evidence as State’s Exhibit 37 (ECF No. 287-50 to -52). (See ECF No. 232-3 at 1430.)
Harrell testified that the investigators attempted to process fingerprints that night, but the lighting conditions were very poor. (See id. at 1429.) The crime scene investigation was terminated that night due to the lighting conditions. (See id.)
On cross-examination, Dice pointed out that Harrell reported that Shipley Todd had personal property including “a brown leather coin purse; one gold Timex man’s wristwatch; one key ring, with three keys; one small pocket knife; one white handkerchief; one $2 bill; and $1.53 in change.” (Id. at 1431-32.)
(3)Testimony of John Birdsong
The State called John Birdsong of the MPD’s Tactical Unit. (See id. at 1433.) Birdsong was called to secure the Todds’ house and keep anyone from going into the house on August 13, 1980. (See id. at 1433-34.) He was there until 11:00 p.m., and then Officer Thomas Dwight Smith of the MPD Tactical Squad came on duty. (See id. at 1434, 1437-38.) No one entered after the crime-scene and violent-crimes officers. (See id. at 1434-35.) The defense did not cross-examine Birdsong. (See id. at 1436.)
(4)Testimony of Thomas Dwight Smith
The State called Officer Thomas Dwight Smith. (See id. at 1437.) Smith testified that he took over the security of the house from Birdsong and stayed until the following day. (See id. at 1438.) No one was permitted into the home during that period. (See id.) On the morning of August *966 14, 1980, Smith turned the home over to the crime-scene officers. {See id.)
(5) Testimony of Joe Sanders
The State called Joe Sanders of the MPD’s Crime-Scene Squad. {See id. at 1441.) On August 14, 1980, he went to 121 North Evergreen to collect physical evidence, take photographs, and process the scene for fingerprints. {See id. at 1442.) Strother presented Sanders with forty-two index cards which Sanders identified as “latent lifts” or fingerprints from the home at 121 North Evergreen. {Id. at 1445.) The cards were entered into evidence as State’s Exhibit 38 (ECF No. 288-1 to -85). {See ECF No. 232-3 at 1445.) Sanders’s job was to take the cards and write information on the back. {See id. at 1446.) At the end of the investigation, he turned them over to the Latent Fingerprint Section, which then determined whether the prints had any value. {See id.)
Sanders identified a group of four photographs, which were entered into evidence as State’s Exhibit 39 (ECF No. 289-1 to - 4), that portrayed true and accurate conditions in the Todds’ home on the morning of August 14, 1980. {See ECF No. 232-3 at 1446.) These photographs included a photograph taken in the basement showing an old, metal, military ammunition box. {See id. at 1447.) Sanders testified that there was money found in the smaller box inside the ammunition box, and the money was taken out, put on the kitchen table upstairs, and photographed. (ECF No. 289-1 to -3; see ECF No. 232-3 at 1447.) There were bank books, statement books, and many papers. {See ECF No. 232-3 at 1447-48.) The other photograph was taken in the kitchen depicting potatoes lying on the sink and deteriorating, with a knife beside the potatoes (ECF No. 289-4). {See ECF No. 232-3 at 1448.)
Sanders identified a laminated plywood clipboard, two pieces of cardboard with writing on them, one sheet of notebook paper, and one ledger book containing several pieces of paper and a decal that were found lying on the floor in the living room just inside the front door. {See id. at 1450-52.) The ledger and clipboard were entered into evidence as State’s Exhibit 40 (ECF No. 289-5 to -13). {See ECF No. 232-3 at 1451-52.)
A “Camp King” brand pocketknife with its blade open was found lying on the bed in the downstairs bedroom. {See id. at 1452.) Another knife with the inscription “Dole Bananas” was found on a small table in the same bedroom against the west wall. {See id.) These knives were entered into evidence as State’s Exhibit 41 (ECF No. 289-14 to -15). {See ECF No. 232-3 at 1452.)
Sanders identified the end of a leather belt, which had been cut from the belt in the back bedroom, lying on the floor in front of the table with the “Dole Banana” knife. {See id. at 1453.) The end of the belt was entered into evidence as State’s Exhibit 42 (ECF No. 289-16 to -17). {See ECF No. 232-3 at 1453.)
Sanders identified a safety razor that was collected from the downstairs bathroom in the medicine cabinet, which was entered into evidence as State’s Exhibit 43 (ECF No. 289-18 to -19). {See ECF No. 232-3 at 1454.) He identified the kitchen knife from the sink, and it was entered into evidence as State’s Exhibit 44 (ECF No. 289-20 to -22). {See ECF No. 232-3 at 1455.) He identified a stained sweat-guard that was collected from the downstairs bedroom. {See id.) The sweat-guard was entered into evidence as State’s Exhibit 45 (ECF No. 289-23 to -25). {See ECF No. 232-3 at 1455.) He identified a white face cloth that was given to him on the scene by Ann Fowler from the toxicology lab. {See id. at 1456.) The cloth was entered into evidence as State’s Exhibit 46 *967 (ECF No. 290-1 to -8). (See ECF No. 232-3 at 1456.)
A section of the rear door from the outer wall of the entrance into the kitchen was presented to Sanders. (See id.) He testified that he did not collect or tag the item, but he was familiar with it. (See id.) The door section was entered into evidence as State’s Exhibit 47 (ECF No. 290-4 to - 6). (See ECF No. 232-3 at 1456.) The defense did not cross-examine Sanders. (See id. at 1457.)
(6) Testimony of Paulette Sutton
The State called Paulette Sutton, an employee of the University of Tennessee Toxicology Laboratory, Forensic Serology Section, to testify as an expert in the field of Forensic Serology, concerning the classification and identification of body fluids. (See id. at 1458-60.) On August 31, 1980, Sutton was asked to go to 121 North Evergreen and examine the premises for trace evidence and body fluids. (See id. at 1460.) She arrived at the house around 7 p.m., entered from the back door, and proceeded down a hallway turning to the left into the kitchen and dining room area. (See id.) The house was very hot and dimly lit with quite a few flies around. (See id. at 1460-61.) She looked “primarily for blood stains [and] any sort of trace evidence which might include hair, or fibers, that looked out of place to us.” (Id. at 1461.) Sutton testified,
The first stains that came to our attention were on the front porch outside of the screen door, actually on the porch area. There were multiple, very small— about the size of a pencil lead — red/ brown stains on the porch that appeared at the time to be blood stains. These stains were lifted and taken back to our laboratory for further processing. There was also an amount of red/brown staining on the door jamb from the front door leading onto the porch. These stains were also lifted onto threads and taken back to our laboratory for analysis.
(Id.)
Sutton identified a vial with hair taken from the bathroom sink and the area immediately surrounding the sink in the back bathroom that was collected on August 13. (See id. at 1462.) The vial was entered into evidence as State’s Exhibit 48 (ECF No. 290-7 to -9). (See ECF No. 232-3 at 1462.)
Sutton identified a second vial of hair that was removed from a green and white floral designed towel (State’s Exhibit 35 (ECF No. 287-46 to -48)) that was found that night under the bathroom sink. (See ECF No. 232-3 at 1462-63.) The vial was entered into evidence as State’s Exhibit 49 (ECF No. 290-10 to -13). (See ECF No. 232-3 at 1463.)
Sutton testified that darkness prevented them from completing their examination of the house. (See id. at 1464.) She testified that they asked the police officers to tag some items from their property room that had blood stains on them and bring them to Sutton’s lab. (See id.) Sutton returned to the house the next day around 1 p.m. to get another look at the house under better lighting conditions. 20 (See id.) They observed a kitchen knife lying on the sink which tested positive for human blood, and they asked that it be tagged and brought to the lab for examination. (See id. at 1464-65.) 21 They saw nothing else that day. (See id. at 1464.)
*968 Sutton returned to the house again on August 15 around 1:00 p.m. to try to obtain dry specimens of blood from the victims. {See id. at 1465.) The blood specimens taken by Dr. Bell at the morgue were in such decomposition that they could not determine the Todds’ original blood type. {See id.) A dry specimen was obtained from the couch in the living room for Shipley Todd and from the base of the kitchen steps and the door facing the living room into the kitchen for Cleopatra Todd. {See id. at 1466.)
Sutton observed what appeared to be human tissue on the seat of the gray recliner in the living room. {See id.) She observed splattered red-brown staining th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8706221. Public record. Not legal advice.