Petition for Writ of Certiorari — Homer B. Teel v. Tennessee

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HOMER B. TEEL,

Petitioner

STATE OF TENNESSEE,

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Respondent

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Homer B. Teel respectfully moves the Court for

leave to proceed herein in forma pauperis, in accordance

with the provisions of Title 28 United States Code, Section

1915, and Rule 39 of the Rules of this Court. The affidavit

of Homer B. Teel in support of this Motion is attached

hereto. Homer B. Teel was declared indigent in the Trial

Court below, and Edwin Z. Kelly, Jr. and L. Thomas -Austin

were appointed to represent Homer B. Teel at the Trial level

and throughout his appeal to the Tennessee Supreme Court.

Presented herewith is a Petition for a Writ of

Certiorari of the moving party.

”

This the Ye day of October, 1990.

tee Oe fl

. —“ San Z. Y, JR.

P. 0.

309 Bet - of Drive

Jasper, TN 37347

(615) 942-6911

~ ORIGINAL

L. THOMAS AUSTIN EIVED

P. 0. Box 666

Dunlap, TN 37327 | OCT ¢ 1990

ie tet Cha | OFFICE OF THE CxE%K

SUPREME

COUR, U3 of

IN THE SUPREME COURT OF THE UNITED STATES

HOMER B. TEEL,

)

Peon, , 90-5887

- No.

STATE OF TENNESSEE,

Respondent

AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED IN FORMA PAUPERIS

I, Homer B. Teel, being first duly sworn, depose and say that I am the Petitioner in the

above-styled c:se; that in support of my Motion to Proceed on a Petition for a Writ of Certiorari

without being required to prepay fees, costs or give security therefore, I state that because of my

poverty I am unable to pay the costs of said proceeding or to give security therefore and that I

believe I am entitled to redress.

I further swear that the responses which I have made below relating to my ability to pay

the cost of my prosecuting the Petition for a Writ of Certiorari are true.

1. I am presently unemployed and incarcerated at the Riverbend Maximum Security

Institution.

2. I have received no income within the past twelve months from a business,

profession or other form of self-employment or from rent payments, interests,

dividends, or from any other source.

3. I own no cash or checking or savings account.

4. I own no real estate, stocks, bonds, notes, automobiles or other valuable property.

RATE nr me

Sworn to and subscribed before me

On this the __24 day of Oct +, 1990.

GULLY

NOTARY PUBLIC AATL

My Commission Expires: UDb-FY

NO.

IN THE SUPREME COURT OF THE UNITED sm} () ase 5887

OCTOBER TERM, 1990

HOMER B. TEEL,

Petitioner,

versus

STATE OF TENNESSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TENNESSEE

ATTORNEYS FOR PETITIONER:

Edwin Z. Kelly, Jr.

Attorney at Law

P. O. Box 869

309 Betsy Pack Drive

Jasper, TN 37347

(615) 942-6911

L. Thomas Austin

Attorney at Law

P. O. Box 666

Dunlap, TN 37347

(615) 949-4159

TIONS D FOR REVIEW

WHETHER S AVAILABLE WHEN A

° IN A FELONY

HETHER THE PETITIONER’S DUE PROCESS RIGHTS HAVE BEEN

VIOLATED BY THE TENNESSEE SUPREME COURT’S FIRMANCE

OF HIS CONVICTION AND INTENCE OF DEATH IN VIEW OF THE

SCOURT’S POST JUDGMENT ORDER THAT HAIR SAMPLES

D_AND COMPARED

WITH THE ITI *S HAiR WHEN SUCH ANALYSIS

AND COMPARISON HAVE NOT BEEN ACCOMPLISHED?

TABLE OF CONTENTS

Questions Presented-----------------------------------

Table of Contents------------- ween - - - - - - -

Table of Authorities--------------------------~--------

Opinion Bel OW--<--<<<- 3 meee ene eee +--+

Jurisdiction

Constitutional Provisions Involved--------------------

Statement of

Issue 2

Conclusion--

Index To The

the Case----<--<------------ ~~ + ee

Appendix---------------------------------

of de

iii

oS Ae ee

TABLE OF AUTHORITIES

CASES

Bell v. Watkins,

692 F.2d 999, 1005-1006 (5th Cir. 1982)

cert. denied 464 U.S. 843,

104 S.Ct. 142, 78 L.Ed.2d 134 (1983)

Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194,

10 L.Ed.2d 215 (1963)

Chapman v. State of California,

386 U.S. 18, 87 S.Ct. 824,

17 L.Ed.2d 705 (1967)

Connecticut v. Johnson,

460 U.S. 73, 95 n. 3,

103 S.Ct. 969, 972 n. 3,

74 L.Ed.2d 823 (1983)

Godfrey v. Georgia,

466 U.S. 420, 100 S.Ct. 1759, at

1764-1765, 64 L.Ed.2d 398 (1980)

Hoover v. Garfield Heights Municipal Court,

802 F.2d 168, 175-178 (6th Cir. 1986)

cert. denied 480 U.S. 949,

107 S.Ct. 1610, 94 L.Ed.2d 796 (1987)

Polsky v. Patton,

890 F.2d 647, 651

(3d Cir. 1989)

Rose v. Clark,

478 U.S. 570, 92 L.Ed.2d 460

106 S.Ct. 3101 (1986)

Tennessee, State of v. Gaddis,

530 S.W.2d 64 (1975)

Williams v. Florida,

399 U.S. 78, 90 S.Ct. 1893,

26 L.EG.2d 446 (1970)

-iii-

10, 11

13, 14

Constitutioris, Statutes and Rules

CONSTITUTION OF THE UNITED STATES OF AMERICA:

Fifth Amendment

Sixth Amendment

Fourteenth Amendment

United States Code

28 U.S.C. Section 1257

28 U.S.C. Section 2101

-iv-

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

HOMER B. TEEL,

Petitioner,

versus

STATE OF TENNESSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TENNESSEE

The Petitioner, Homer B. Teel, respectfully prays that

a writ of certiorari be issued to review the judgment and

opinion of the Supreme Court of Tennessee filed on May 29,

1990, affirming his conviction and sentence of death by

electrocution.

OPINION BELOW

The opinion below of the Supreme Court of Tennessee

appears in the Appendix as A-1 hereto and as of the date of

this writing, the decision has not been reported. A

petition for rehearing on behalf of Petitioner was filed and

a copy is attached in the Appendix as A-2. That Petition

was denied by the Tennessee Supreme Court by its Order filed

on July 9, 1990, which appears in the Appendix as A-3.

JURISDICTION

This Petition for a Writ of Certiorari is filed within

90 days from the date of denial of the Petition for

Rehearing, and is thus timely filed pursuant to Supreme

Court Rule 13. This Court’s jurisdiction is invoked under

28 U.S.C. Section 1257 and 28 U.S.C. Section 2101.

CONSTITUTIONAL PROVISIONS INVOLVED

I. CONSTITUTION OF THE UNITED STATES, Amendment V:

"No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment. or

indictment by a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be awitness against himself; nor be

deprived of life, liberty and property, without due process

of law; nor shall private property be taken for public use,

without just compensation".

It. CONSTITUTION OF THE UNITED STATES, Amendment VI:

"In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the state and district wherein the crime shall have been

committed, which district shall have been ascertained by

law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his

favor, and to have the assistance of counsel for his

defense".

III. CONSTITUTION OF THE UNITED STATES, Amendment XIV:

"....(N)or shall any state deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws".

-5-

STATEMENT OF THE CASE

Petitioner, Homer B. Teel, was indicted by the Grand

Jury of Marion County, Tennessee, on February 2, 1987, for

murder in the first degree of Tara M. Stowe. The State of

Tennessee filed a notice of intent to seek the death penalty

relying upon the statutory aggravating factors that the

murder was especially heinous, atrocious and cruel and that

it involved torture or depravity of mind, and that the

murder was committed while the Petitioner was engaged in the

commission of aggravated rape upon the victim.

Edwin Z. Kelly, Jr. and L. Thomas Austin were appointed

as attorneys for Homer B. Teel by Order of the Trial Court

and have continued to represent him through date.

On August 31, 1987, the trial of Petitioner commenced

in the Circuit Court of Marion County, Tennessee, with the

Honorable Buddy D. Perry, Circuit Judge, presiding. It was

the State’s theory that Homer B. Teel committed first degree

murder upon a fourteen year old girl, Tara M. Stowe, during

the commission of rape, and that the murder occurred in

November of 1986. Homer B. Teel questioned whether a mu~der

had been committed and denied guilt.

On September 4, 1987, the jury returned a verdict

against Petitioner finding him guilty of murder in the first

degree. A separate sentencing hearing immediately followed

thereafter, and the same jury returned its verdict on

September 5, 1987, reporting that punishment should be death

odin

due to the statutory aggravating circumstance that the

murder was especially heinous, atrocious, and that it

involved depravity of mind while the Petitioner was engaged

in committing rape.

The indictment in this case did not charge felony

murder and during a pre-trial hearing, the Assistant

Attorney General for the State made the following comment:

-++++-eI might add also that Mr. Austin

made a mistake in what he told the

Court. All the indictment charges is

murder. The sexual aspect of it is one

of aggravated factors that’s listed in a

notice. He is not charged with any

sexual offense and a jury won’t even

know about a sexual offense possibly

till bifurcated part of the trial,

that’s the reason we did it that way.

We do not have to prove rape, we do not

have to prove any type of sexual offense

at all, until after Mr. Teel has’ been

found to be guilty. That’s an

aggravated factor that was listed. But

basically, there’s no reason to

challenge this at this point. (Motion

Hearing conducted on March 23, 1987, at

pages 34-35)

Counsel for the Petitioner objected during the guilt phase

of the trial to the introduction of proof of rape; however,

such proof was allowed by the Trial Court. Rape thus became

the gravamen of the State’s case. In its charge to the

jury, the Trial Court charged as to common law first degree

murder, and gave a partial definition of felony murder,

failing however to define for the jury the felony of rape.

;

‘

-7-

A Motion for New Trial (See Appendix A-4) was

filed on behalf of the Petitioner setting forth numerous

allegations of error, which was overruled; however, at that

time the Trial Court did order the State to conduct an

analysis of hair that was found in the hand of the victin,

Tara M. Stowe, and to compare said hair samples with hair of

the Petitioner. (See Appendix A-5) The Petitioner agreed to

this analysis as a request had been made by his counsel that

this be done. It was brought out during the course of the

trial that hair was found in the victim’s hand and that no

further analysis had been requested by the State. The Trial

Court ordered that this be done; however, this has never

been accomplished.

Pursuant to Tennessee statute, a direct appeal was made

to the Tennessee Supreme Court, and its Opinion was filed on

May 29, 1990, which is attached hereto as Appendix A-1. In

that Opinion, at pages 26-28, the Honorable Tennessee

Supreme Court, speaking through Justice Drowota, held that

the Trial Court’s failure to define rape during the guilt

phase was error as this was an essential element of the

offense charged. The Tennessee Supreme Court went on to

say that the law is unsettled as to whether harmless error

analysis is available when a Trial Court fails to instruct

on an essential element of an offense and held in the unique

circumstances and total context of the subject case that

said omission was harmless error beyond a reasonable doubt.

The Tennessee Supreme Court held that the evidence was

sufficient to support the conviction and the sentence and

that the jury verdict approved by the Trial Judge accredits

the testimony of the witnesses for the State and resolves

all conflicts in favor of the State’s theory. It failed to

address the Trial Court’s post-conviction order that a hair

analysis and comparison be made.

In his Petition for re-hearing filed with the Supreme

Court of Tennessee, the Petitioner sought further review

relative to the Trial Court’s Order for hair analysis and

comparison and the Trial Court’s failure to define rape to

the jury during the guilt phase of the trial. (See Appendix

A-2) That Petition was dismissed without comment by Order

of the Tennessee Supreme Court filed on July 9, 1990. (See

Appendix A-3)

This Petition for Writ of Certiorari follows.

A review on a Writ of Certiorari is not a matter of

right, but rests within the discretion of the reviewing

Court and will be granted only when there are special and

important reasons therefor. Petitioner respectfully submits

that there are special and important reasons for issuing a

Writ of Certiorari in this case. The Supreme Court of

Tennessee has decided important questions of § Federal

Constitutional Law, which should be settled by this Court.

I. WHETHER HARMLESS ERROR ANALYSIS IS AVAILABLE WHEN

A TRIAL COURT OMITS THE DEFINITION OF RAPE IN A FELONY

MURDER CHARGE PREDICATED UPON RAPE?

Research indicates that the law is unsettled as to

whether harmless error analysis is available whena trial

court fails to instruct onan essential element of an

offense. See, e.g., Polsky v. Patton, 890 F.2d 647, 651 (3d

Cir. 1989); Hoover v. Garfield Heights Municipal Court, 802

F.2d 168, 175-178 (6th Cir. 1986), cert. denied 480 U.S.

949, 107 S.Ct. 1610, 94 L.Ed.2d 796 (1987); Bell v. Watkins,

692 F.2d 999, 1005-1006 (5th Cir. 1982) cert. denied 464

U.S. 843, 104 S.Ct. 142, 78 L. Ed.2d 134 (1983). There is

thus a conflict among the various Federal Courts of Appeal

relative to this issue.

In the case sub judice, the Tennessee Supreme court has

determined that the Trial Court’s failure to define rape in

-10-

its jury instruction during the guilt phase of the trial

constituted an omission of an essential element of the crime

charged and was thus error (A-1 at page 26).

Since this Honorable Court’s decision in the case of

Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824,

17 L.Ed.2d 705 (1967), there has been no absolute directive

given by this Honorable Court as to whether the trial

court’s failure to instruct on an essential element of an

offense can be dubbed “harmless". As this Honorable Court

stated in the Chapman case, supra, “it emphasizes an

intention not to treat as harmless those constitutional

errors that affect substantial rights" of a party.

In the case of Rose v. Clark, 478 U.S. 570, 92 L.Ed.2d

460, 106 S.Ct. 3101 (1986), harmless error analysis was held

to apply to a murder conviction where the jury was

unconstitutionally instructed that homicide was presumed to

be malicious. It is suggested, however, that the decision

in Rose supports the conclusion that application of harmless

error analysis is not appropriate in Petitioner’s case. The

jury in your Petitioner’s case was precluded from weighing

the facts to determine if the Petitioner had in fact

committed rape as defined by Tennessee law. The jury was

totally uninformed as to what constitutes rape.

It is suggested that the Trial Court’s error in the

instant case was similar to that committed by the trial

‘ss

-ll-

court in the case of Hoover v. Garfield Heights Municipal

Court, supra. In that case, the trial court failed to

instruct the jury that it had to find that Hoover’s arrest

was lawful in order to convict him of resisting arrest. The

United States Court of Appeals, Sixth Circuit, reversed the

conviction and held that this error was not harmless as_ it

prevented the jury from considering an essential element

that in fact constituted a directed verdict as to that

element. In that case, the Court, in analyzing the Rose,

supra, decision, commented at page 177 thereof as follows:

However, a closer reading of Rose

supports the conclusion that application

of harmless error analysis is not proper

in the present case. The Court observed

that harmless error analysis would not

apply if a trial court directed a

verdict for the state in a criminal

case. 106 S.Ct. at 3106. The Court

concluded, however, that a Sandstrom

error was not the equivalent of a

directed verdict. Id. at 3107. In

doing so, it importantly distinguished

the cases involving Sandstrom errors,

where the jury is instructed to presume

an eleme t from predicate facts, from

the cases involving instructional errors

which completely prevent the jury from

considering an element. See id. at 3107

n. 8 (" ‘Because a presumption does not

remove the issue of intent from the

jury’s consideration, it is

distinguishable from other instructional

errors that prevent a jury from

considering an _ issue.’") (quoting

Connecticut v. Johnson, 460 U.S. 73, 95

n. 3, 103 8.Ct. 969, 972 n. 3, 74

L.Ed.2dad 823 (1983) (Powell, J.,

dissenting)). The implication of this

statement is that when an instruction

prevents the jury from considering a

-12-

material issue, it is equivalent to a

directed verdict on that issue and

therefore cannot be considered harmless.

In a capital case, the trial court’s failure to

instruct on an essential element of the crime charged should

never be held harmless. To do so sets the stage for the

arbitrary and capricious infliction of the death penalty.

What a State must do in order to constitutionally authorize

capital punishment was prescribed by this Honorable United

States Supreme Court as follows in the case of

Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, at

1764-1765, 64 L.Ed.2d 398 (1980):

This means that if a State wishes

to authorize capital punishment it has a

constitutional responsibility to tailor

and apply its law in a manner that

avoids the arbitrary and capricious

infliction of the death penalty. Part

of a State’s responsibility in this

regard is to define the crimes for which

death may be the sentence in a way that

obviates "standardless [sentencing]

discretion. (citations omitted) It must

channel the sentencer’s discretion by

“clear and objective standards" that

provide "specific and detailed

guidance," and that “make rationally

reviewable the process for imposing a

sentence of death. (citations omitted)

Failure to properly instruct the jury as to the definition

of rape when rape is the underlying felony upon which the

charge of felony murder is based most definitely affected a

substantial right of the Petitioner herein. To deem such

omission "harmless" appears contrary to this Honorable

Court’s requirement that the death penalty not be inflicted

arbitrarily and capriciously.

ae ae ¥8; : : 4k

ANALYSIS COMPARISON HAVE NOT BEEN ACCOMPLISHED?

At the trial of this cause it came out through the

testimony of the State’s pathologist, Dr. King, that the

victim had hair in her hand, indicating that there had been

a struggle and the victim had pulled the hair of her

assailant. At the same time the trial court overruled the

Petitioner’s motion for a new trial, it ordered the State of

Tennessee to cause a qualified person to examine the hair

samples in Dr. King’s possession relative to this case and

that the same be compared to hair samples of the Petitioner.

The results of the analysis were to be reported to the trial

court. (See Appendix A-5) It is the position of the

Petitioner that since there has never been an analysis

conducted by the State of Tennessee as of this date, this

leaves the trial court’s record at less than "final". This

issue was again presented to the Tennessee Supreme Court by

petition for rehearing on behalf of the Petitioner. (See

Appendix A-2).

In the Tennessee case of State v. Gaddis, 530 S.W.2d 64

(1975), the defendant was being tried under a drug - related

offense, and the trial court had denied his pre-trial motion

for a sample or specimen of the alleged drug to be used in

atten

conducting an independent scientific analysis. The

Tennessee Supreme Court in that case attempted to settle the

law and to determine proper procedures and guidelines for

disposition of motions for samples or specimens in drug

cases. The instant case is somewhat different, in that here

the record reveals the hair found in the victim’s hand was

disclosed during cross examination of the State’s

pathologist, however, the trial court found the Petitioner’s

motion well taken and granted same. (See Appendix A-5).

Speaking for the Tennessee Supreme Court in the Gaddis,

supra, case, Justice Henry observed:

We note an emerging trend toward broad

and reciprocal discovery in criminal

cases. The days of trial by ambush are

numbered. Rapidly fading is what Dean

Pound described as the "sporting theory

of justice". In Williams v. Florida,

399 U.S. 78, 90 §&.Ct. 1893, 26 L.Ed.2d

446 (1970), the Supreme Court said:

The adversary system of trial is

hardly an end in itself; it is not yet

a poker game in which players enjoy an

absolute right always to conceal their

cards until played. We find ample

room in that system, at least as far

as ‘due process’ is concerned, for the

instant Florida rule, which is

designed to enhance the search for

truth in the criminal trial by

insuring both the defendant and the

State ample opportunity to investigate

certain facts crucial to the

determination of guilt or innocence.

399 U.S. at 82, 90 S.Ct. at 1896.

-15-

We note the liberal provision of Rule

16 of the Federal Rules of Criminal

Procedure, and the amendments thereto

which became effective August 1, 1975.

Full discovery is consonant with

requirements of Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963) holding that due process requires

that the prosecution disclose evidence

favorable to the accused.

(537 S.W.2d at page 69)

In the case sub judice, it must be assumed from the

ruling of the trial court that he determined that the

evidence that became apparent during the trial of this case

on cross-examination of the State’s pathologist might have

had an impact on the trial of this cause, and he thus

ordered the State of Tennessee to perform the sample

analysis and comparison. It should be noted that a pretrial

motion seeking exculpatory evidence had been filed on behalf

of the Petitioner.

Ignoring the trial court’s order in this regard and not

giving significance to it so as to allow the jury verdict to

be reversed or, alternatively, the Tennessee Supreme Court’s

failure to remand the case for an enforcement of the trial

court order, deprives the Petitioner of his life without due

process of law.

-16-

CONCLUSION

Petitioner respectfully asks this most Honorable

Supreme Court of the United States to grant his Petition for

Writ of Certiorari to the Supreme Court of Tennessee.

Questions of Constitutional law are presented in this

Petition which are of paramount interest and importance.

This the 2nd day of October, 1990.

Respectfully submitted,

COUNSEL EPETLONER> 7 4

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ian CA le | Fis le

q . DWI Zz. 4° ’

CU J

L. THOMAS AUSTIN

-17-

INDEX TO APPENDIX

Opinion of the Supreme Court of Tennessee-------------- A-1

Petition for Rehearing on behalf of Petitioner--------- A-2

Order on Petition to Rehear-<--<-<-<<-<-<-<<-<-<-<------------- A-3

Motion for New Trial and Order-----------------~-------- A-4

Order of Trial Court Overruling Motion to

Examine and Compare Hair Samples------------------ A-5

Charles w. Burson

Attorney General ¢ Reporter

John Knox w

Solicitor Genera

C. Anthony Da

Assistant Pm —onay MO

ashville, Tennessee ral

Dien t ttm Pope, Jr.

District a

Pikeville, _— —~ mae

SPIN rico w

30 AFFIRMED.

——

1 The Defendant, Homer "Butch" Teel, appeals directly

2 to this Court his conviction of first degree murder and the

3 sentence of death imposed by the jury. He raises numerous

4 issues in this appeal, including: the trial court's failure

S to suppress statements made by the Defendant to detectives

6 and to various jailhouse inmates while in custody, the

7 court's failure to exclude testimony of the State serologist,

8 the court's failure to exclude evidence relative to the

9 condition of the decedent's body as found, errors alleging

10 prosecutorial misconduct, errors relating to the denial of

ll continuances and change of venue and the sufficiency of the

12 evidence to support the conviction and the sentence. After a

13 careful review of the entire record and the law, we find

14 these issues to be without merit. We, therefore, affirm the

15 conviction and the sentence.

16 .

17 The events leading up to the murder and disappear-

18 ance of 14-year-old Tara Stowe and the subsequent arrest of

19 the Defendant Teel will be described in detail in order to

20 give meaning to the sixteen issues which we will consider on

21 appeal. The Defendant was convicted of the murder of Tara

22 Stowe in Marion County on the night of November 29, 1986.

23 Tara lived with her grandmother in Tiftonia, Tennessee. Her

24 grandmother had gone to Dallas, Texas, for several days and

25 Tara was staying with her aunt, Betty Davis. On Saturday

26 evening, November 29, at approximately 8:00 p.m., Betty Davis

27 left her mobile home in Tiftonia to pick up her mother,

28 Tara's grandmother, in Chattanooga. Tara and Betty's daugh-

29 ter, Kerry, were left at the mobile home with some of their

30 friends, John Dagnun, David Dagnun and Tony Dagnun. Tara

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spoke on the telephone with the Defendant who was an ac-

quaintance of hers. Later that evening Tara rode with her

friends, John, David and Tony, in the back of a pickup truck

driven by John's father to the Egypt Hollow community of

Marion County, where the Dagnuns lived. She was let out

about 10:00 p.m. near the trailer where “Butch” Teel lived

with his grandmother.

The Defendant, “Butch” Teel, who was raised by his

grandmother, was 20-years-old. He did not know his father,

and his mother had died six years before the events in this

case occurred. He had spent his entire life in the Egypt

Hollow area and attended school up to the ninth grade.

About the time that Tara arrived in Egypt Hollow on November

29, Tim Sexton and the Defendant were driving to Betty

Davis's mobile home. On the way there, Sexton was told by

the Defendant that their friend, James Dagnun, was living in

the woods in a tent in Egypt Hollow, because John Dagnun, Sr.

had taken out a warrant charging James with whipping little

David Dagnun. James Dagnun, cousin of John Dagnun, Jr., and

David Dagnun, was Tara Stowe's boyfriend. Upon arriving at

Betty Davis's, the Defendant asked for Tara and was told that

she had gone with the Dagnuns to Egypt Hollow. The two then

Grove back to Egypt Hollow, where they found Tara sitting on

the steps of a church. When Tara advised them that she was

waiting for her boyfriend, James Dagnun, the Defendant said

that he would take her to the place where James was hiding to

avoid arrest. Sexton drove up Murphy Hollow Road and left

the Defendant and Tara at a large rock beside the road around

10:35 - 10:40 p.m. Central Standard Time. When the Defendant

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sald that he and Tara were going up on the mountainside to

find James Dagnun, Sexton asked if he could go with them.

The Defendant refused and told him that James wanted him to

bring only Tara. Sexton then left.

On the evening of November 29, both Betty Davis and

Tim Sexton saw James Dagnun's high school class ring on

Tara's hand. On the days immediately after Tara's disap-

pearance, “Butch” Teel was seen wearing the ring Dagnun had

given to Tara. On Sunday, November 30, the Defendant told

John Dagnun he had not seen Tara; and on the following

Wednesday, he threatened John because he had seen John

searching for Tara. The Defendant also asked John if he

thought he had “hurt” Tara. On Thursday, Teel told Sexton he

had gotten the ring from Tara the night of November 29 and,

the last time he saw Tara, she was leaving Egypt Hollow

walking toward the interstate. Ronnie Nunley testified that

he was 23-years-old and acquainted with the Defendant and

that, sometime after Tara was reported missing, the Defendant

had told him who she was and had asked him if he wanted a

“bone from Tara."

Detective Bill Schroeder of the Marion County

Sheriff's Department began investigating the disappearance of

Tara Stowe on December 4, 1986. He went to the Teel resi-

dence and while talking with Teel, noticed a class ring on

his hand. The detective asked Teel to go with him to the

Sheriff's office and the Defendant agreed. The Defendant

told Schroeder that Tim Sexton had left him and Tara in the

hollow and he last saw Tara walking towards the interstate.

-4-

The Defendant claimed that Tara had given him the class ring.

When Detective Schroeder arrested the Defendant, he became

irate and said that Schroeder “would never find anything or

prove anything on him." The Defendant made several state-

ments about how to get rid of a human body and suggested

several locations where authorities might search. These

sites were several miles from where Tara's body was eventu-

ally found. On December 6, the Defendant told Detective

Schroeder that on the night she disappeared Tara had left the

hollow with James Dagnun to get beer and that James had given

him the ring.

On December 27, 1986, after an exhaustive search,

the badly decomposed body of Tara Stowe was found lying in a

ravine alongside a creek approximately 65 feet from the guard

rail on Murphy Hollow Road. The body was located 248 feet

from Egypt Hollow Road and approximately 3500 feet from the

point where Sexton last saw Tara alive. Expert testimony

indicated the body had probably been dragged into the ravine

by animals. Some 36 feet away, investigators found a dark,

wet, stained depression where, in the opinion of forensic

anthropologist Dr. William M. Bass, the body had originally

lain. Tree limbs over the depression indicated an attempt

had been made to cover the body. Six to eight feet away,

authorities found Tara's slacks and underpants. Certain

items of her jewelry were lying in the depression.

The body was face down with the jacket, bra and

blouse pulled over her head in a manner inconsistent with

animal activity. Hair was stuck to the fingers of her left

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land. An autopsy by Dr. Frank King, the Marion County

Medical Examiner, and an examination of the bones of the

throat, particularly the hyoid bone, by Dr. Bass indicated

that the victim suffered trauma to her neck at the time of

death. Dr. King testified that the cause of death had been

“neck trauma," consistent with one of the following: manual

strangulation, ligature strangulation, a blow to the neck, or

@ cut to the neck that was not deep enough to reach the

underlying bones. From the condition of the body, Dr. King

could make no conclusion whether the victim had engaged in

sexual intercourse near the time of her death. A forensic

serologist, however, found spermatozoa consistent with human

spermatozoa on a sample taken from the crotch of the victim's

underpants.

When Detective Schroeder informed Teel that the

body had been discovered and photographed, the Defendant

responded, “Good, give me some for my scrapbook.” When the

Defendant was being booked upon the murder charge, he asked

Schroeder about the strength of the case. The Defendant said

that he had an “ace in the hole” and "no one else was in it

with me." Later, Teel called Schroeder to his cell and asked

him about the elements of the degrees of murder and whether

it was first degree murder if you killed a person by acci-

dent. .

The State introduced several inmates from the

Marion County and Franklin County Jails who testified that

the Defendant had either admitted the killing or made in-

criminating statements to them. The first, Pandora Edwards,

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testified that, while she was in a cell next to Defendant's

in the Franklin County Jail, the Defendant told her about

“some fourteen [year-old] that he had raped, beat up, and cut

and buried." Defendant said this had occurred at night and

he was unable to sleep because he kept seeing the victin.

Edwards’ cellmate, Eddie Mae Tate Wilkerson, testified the

Defendant said he had killed and buried the girl because she

was his girlfriend and she was seeing another man. Inmate

Charlie Algood testified that he overheard Defendant tell

another inmate that he committed the crime but that they

didn't have any witnesses. James Graham testified that

Defendant told him that a girl was missing and that he would

be charged with murder if she had been killed. Defendant

said that the authorities had not found anything yet and that

they probably would not. Defendant also admitted the killing

to Stephen Morgan. While watching televised news reports of

the search for Tara with the Defendant, Morgan and another

inmate, George Caldwell, heard the Defendant say, “You're a

long ways away from finding the body," and make other similar

remarks. The Defendant also told Caldwell that the body was

300 feet from the road. As stated earlier, when found, the

body was 248 feet from Egypt Hollow Road.

The most damaging testimony was that of Ernest

Morrison, himself a capital defendant from Georgia who had

temporarily shared a cell with Defendant and Earl David

Crawford at the Marion County jail. Morrison testified that

he and the Defendant talked about the murders with which they

were charged. The Defendant told Morrison that he had met

“the girl" close to a church and had asked her to go

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somewhere with him. The two had ridden with a third person

"so far down the road” when Defendant asked to be let out and

told the driver to go on. After the Defendant and the victim

walked up the hill, Defendant made her perform fellatio on

him. The two then walked through the woods, and the Defen-

Gant removed the victim's pants and panties and had sexual

intercourse with her. All of this time, the victim was

pleading with him not to hurt her. After this, the Defendant

grabbed the victim by her hair and told her, “(W)ell, you

know, it's your time. ... I can't, you know, stand no more

of it." He then walked her down to the creek where he forced

her to kneel and perform fellatio again. After this, he

pushed her to the ground, forced her head into the creek and

drowned her. He then took her ring, dragged her up the hill,

laid her body in the brush, and covered her up, according to

his account, not caring whether she was buried.

The defense presented the testimony of the Defen-~

dant's grandmother and of Shirley and Darrell Williams, who

lived in the grandmother's trailer. They said that on the

night of November 29, Tara Stowe had come to the trailer and

left when she learned that the Defendant was not there. The

Defendant himself had come home later sometime between 11:00

and 11:30 p.m. Eastern Standard Time and had remained there

the rest of the night. Darrell Williams testified that he

had seen James Dagnun in “the hollow" on November 29. He

also had seen Dagnun riding in his father's car “sort of like

he was trying to avoid being seen" during the time of the

search and later, after the body had been found, cleaning

trash and clothes out of his car at his grandmother's house.

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James Lewis, cellmate of inmates Stephen Morgan and

James Graham, testified he heard the two planning to make up

testimony against the Defendant in order to get probation.

Earl David Crawford, Morrison's cellmate, testified that

Morrison and the Defendant did not get along and that he had

never heard any conversation between them in which the

Defendant told Morrison about the murder.

The Defendant testified that he had been with James

Dagnun at Paralee's, a local hangout in Egypt Hollow, on

November 29. Both he and James had talked with Tara on the

telephone at that time. Later, the Defendant and Tim Sexton

went to the Betty Davis residence and asked for Tara. They

later went to Egypt Hollow, where they saw Tara sitting on

the steps of a church. The three then drove up into the

hollow, stopped and got out of the car. The Defendant said

that after Tim left, James arrived. James and Tara began to

argue because James's mother wanted him to get his ring back

from Tara. James took the ring off Tara's hand and gave it

to the Defendant to keep for a couple of days. The Defendant

last saw Tara and James Dagnun arguing as they "left back out

towards the hollow" in the direction of the interstate. The

Defendant then went home.

In rebuttal, the State presented the testimony of

John Dagnun and Tim Sexton that Darrell Williams had told

them that the Defendant had not come home until six o'clock

the morning after November 29. Jan Gifford, a friend of

James Dagnun's mother, testified that James Dagnun had been

at her house at Trenton, Georgia, from 7:00 p.m. November 29,

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until 2:00 p.m. the next day. Gifford's testimony, as well /

as that of several other witnesses, clarified that James

Dagnun did not testify at trial because at that time he was

hospitalized at a burn center in Augusta, Georgia.

Neither the State nor the Defendant presented any

additional proof at the sentencing hearing.

Defendant contends in his first issue that the

trial court erred in overruling his motion to suppress

certain statements made to Detective Schroeder and to fellow

inmates while he was in custody and that the trial court

erred in failing to grant his application for interlocutory

appeal of the court's order overruling his motion to sup-

press. We are of the opinion that the statements made to

Detective Schroeder and to fellow prisoners were properly

admitted.

The Defendant argues that the statements should be

suppressed because they were the result of an illegal arrest

and were made in violation of his rights under the Fourth,

Fifth, and Sixth Amendments. The substance of Defendant's

argument is that his statements should not be admitted

because he was held for almost three weeks under the “pre-

tense” of two other outstanding charges and the other inmates

were acting as agents of the State when they heard his

comments. It was revealed during the suppression hearing

that, after learning that the Defendant was the last person

-10-

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seen with Tara Stowe and that he had also been seen wearing

her ring, Detective Schroeder went to the Defendant's trailer

on the evening of December 4, 1986. Schroeder met with the

Defendant and, after telling him why he was there and ascer-

taining that he was wearing the victim's ring, advised the

Defendant of his Miranda rights. When the Defendant asked if

he was under arrest, Schroeder said no, but that it was

possible that he might be placed under arrest later. The

Defendant then consented to go to the station and remarked

that he had nothing to worry about.

Once at the jail, Schroeder again advised Defendant

of his rights. The Defendant then told Schroeder about how

he and Sexton had picked up Tara and how, after giving him

the ring, she had walked away down the road. Schroeder

testified that the Defendant was free to leave the station at

the time this first statement was made. After speaking with

Sexton and his parents around midnight, however, Schroeder

informed the Defendant that, based upon Defendant's and

Sexton's statements, he was going to charge him with con-

tributing to the delinquency of a minor, a misdemeanor under

T.C.A. $37-1-156. Thereupon, on December 5, 1986, at ap-

proximately 2:00 a.m., the Defendant was arrested on a

juvenile warrant on those charges and held in the Marion

County jail.

Around 9:00 a.m. that same morning, Georgia offi-

cers informed Schroeder that the Defendant had been charged

with aggravated assault in Dade County, Georgia, and that his

bond there had been revoked. The Georgia authorities

=- we N

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sequested a hold be put on the Defendant. At 11:00 a.m.,

after speaking with his family and after again being given

his rights, Defendant gave Detective Schroeder a written

statement. Subsequently, while being held at the jail, the

Defendant made additional statements on December 6, 15, and

18, 1986. Detective Schroeder testified that he had advised

Defendant of his rights each time that he spoke with him

except on those occasions when the Defendant flagged him down

as he walked through the jail and initiated a general con-

versation.

On December 23, 1986, the contributing charge was

dismissed in Juvenile Court at Shroeder's request. On

December 27, 1986, Defendant was charged with first degree

murder, and counsel was appointed on December 29. The

statements given during his booking on December 27 were

extemporaneously initiated by the Defendant as were the

questions he asked about the charges and the case on January

11, 1987. Defendant was indicted on February 2, 1987.

Detective Schroeder also testified that he had

never asked or directed any inmates to question the Defen-

dant; that the other prisoners at the jail would simply tell

him about Defendant's statements. The only other witnesses

at the suppression hearing were the Defendant's grandmother,

who testified about the night he was picked up at the trail-

er, and Assistant District Attorney Mike Caputo, who testi-

fied primarily about the circumstances of a statement that

was not used at trial.

-12-

Regarding the Defendant's first statement on the

evening of December 4, regardless of whether the Defendant

was in custody, the proof is clear that Defendant voluntarily

waived his Fifth Amendment rights after they were given.

Since the case was only under investigation and no adversary

proceedings had begun, his Sixth Amendment right to counsel

was also not violated. See State v. Mitchell, 593 S.W.2d

280, 286 (Tenn. 1980).

As to the written statement given on the morning of

December 5, the Defendant, who was in custody, was once more

given his Miranda rights and waived them. Adversary pro-

ceedings had still not been initiated. That Defendant was

being held on other charges did not require the suppression

of these statements, in this case, on Sixth Amendment

grounds. See Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477,

489, 88 L. Ed.2d 481 (1985).

The Defendant complains that he was interrogated by

his fellow prisoners at the insistence of police officers.

There was no proof at the suppression hearing that any of the

inmates were acting as agents for the State or that the State

deliberately induced, enticed, or prompted these communica-

tions so as to require their suppression. See Kuhlmann v.

Wilson, 477 U.S. 436, 106 S.Ct. 2616, 2630, 91 L. Ed.24 364

(1986); United States v. Henry, 447 U.S. 264, 100 S.ct. 2183,

65 L. Ed.2d 115 (1980).

As the final part of this issue, Defendant argues

that the trial court erred in denying his application for

-13-

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interlocutory appeal of the denial of his motion to suppress.

Defendant claims that he was effectively deprived of his

Fifth Amendment rights under the United States Constitution

because he was left with no choice regarding whether to take

the witness stand. It is clear that the denial of an inter-

locutory appeal did not irreparably injure any of Defendant's

rights and that all issues that could have been raised on

interlocutory appeal have been preserved for review on this

appeal. See State v. Martin, 634 S.W.2d 639, 643 (Tenn.

Crim. App. 1982); State v. Hartsfield, 629 S.W.2d 907 (Tenn.

Crim. App. 1980); State v. Gawlas, 614 S.W.2d 74 (Tenn. Crim.

App. 1980). There is no merit to this argument and Defen-

dant's first issue is denied.

Defendant next insists that the trial court erred

in refusing to grant his motions to continue or to exclude

the testimony of Ernest Morrison or Jan Gifford.

(a)

Defense counsel filed its first motion for contin-

uance on August 12; 1987, on the grounds that the State had

not properly complied with discovery motions and had

furnished the requested information on July 31, 1987, only

one month before trial. The witness list contained the names

of twenty one potential witnesses spread throughout Marion,

Hamilton, Franklin and Knox Counties in Tennessee and one

witness, Ernest Morrison, who was located in Augusta,

Cecrgia. The motion was heard on August 12 and overruled

“subject to you having an adequate opportunity to get in

touch with these people.” On August 31, the first day of

tcial, defense counsel renewed their motion to continue, but

at that time the motion was directed primarily toward the

alleged inability of the defense to learn Ernest Morrison's

complete criminal record and not toward any difficulty in

locating and investigating the other witnesses. This motion

was denied. The Defendant does not allege that counsel never

interviewed the witnesses in advance nor does he state how

many of the witnesses were unknown before disclosure.

We have held that the grant or denial of a request

for continuance rests within the sound discretion of the

trial judge and will not be disturbed uniess the requesting

party makes a clear showing of prejudice. Moorehead v.

State, 219 Tenn. 271, 409 S.W.24 357, 358 (Tenn. 1966); State

¥. Goodman, 643 S.W.24 375, 378 (Tenn. Crim. App. 1982).

Defendant has not made the clear showing of prejudice neces-

sary for reversal under the record in this case.

(b)

During the trial, defense counsel made oral motions

to exclude the testimony of Ernest Morrison and that of Jan

Gifford, a rebuttal witness called by the State at the end of

the trial proceedings. Defense counsel argued during these

oral objections and motions that allowing these witnesses to

testify was prejudicial to the Defendant because it prevented

his adequately preparing his defense regarding these

-15-

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witnesses and rendered his cross-examination of these wit-

nesses essentially worthless.

Defendant avers the defense had little opportunity

to investigate Morrison's background, primarily his criminal

convictions. Morrison was one of the twenty-one witnesses

whose existence the Defendant learned about on July 31, one

month before trial. The record shows that defense counsel

conferred with Morrison before trial and also that a copy of

his convictions was given to Defendant before trial. Mor-

rison admitted to the murder, armed robbery and rape charges

which were pending in a capital case in Georgia. Defendant

fails to explain how Morrison could have been impeached with

greater effect. The Defendant also presented the testimony

of Earl David Crawford to impeach Morrison. No prejudice has

been shown entitling the Defendant to relief. Cf. State v.

Garland, 617 S.W.2d 176, 185 (Tenn. Crim. App. 1981).

The Defendant argues that the “surprise” testimony

of Jan Gifford on the last day of trial, creating an alibi

for James Dagnun was highly prejudicial. The Defendant

attempted to shift the blame to Dagnun by testifying that

Tara was last seen with James. Jan Gifford rebutted this by

establishing that James was at her home in Trenton, Georgia,

at that time. The State submitted at trial that the issue

was raised by the Defendant's testimony. The witness ex-

Plained that she received her subpoena for trial on the day

of her testimony and that no officer discussed the case with

her before that date.

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A request for discovery of names of witnesses does

not include the State's rebuttal witnesses. See Raybin, 9

Tennessee Criminal Practice and Procedure, $13.16 (1984). A

contrary rule would require the State to anticipate every

possible issue the defense might raise. Since the testimony

was proper rebuttal to an issue raised by the Defendant's

testimony, the State had no duty to disclose the witness's

name in advance.

The Defendant makes no showing of how Jan Gifford's

testimony or cross-examination might have been different if

he had known she would testify. In addition, the Defendant

has failed to establish any prejudice requiring reversal.

Ill

Defendant alleges in his third issue that the trial

court erred in failing to grant his motion for a change of

venue. Defendant filed a pre-trial motion for change of

venue and the trial court took the motion under advisement

pending a completion of voir dire. At the beginning of

trial defense counsel supplemented the motion by filing an

affidavit and various newspaper clippings. After completion

of jury selection the Defendant did not renew his motion for

change of venue.

Venue may be changed where it appears to the court

that due to undue excitement against the defendant in the

county where the offense was committed, or for any other

cause, a fair trial could not be-had. Tenn. R. Crim. P.

-17-

Tifa). The matter of change of venue is addressed to the

sound discretion of the trial court, whose decision will not

be ceversed absent an affirmative and clear abuse of discre-

tion. State v. Melson, 638 S.W.2d 342, 360 (Tenn. 1982);

State v. Hoover, 594 S.W.2d 743 (Tenn. Crim. App. 1979). Our

examination of the newspaper articles and a reading of the

voir dire shows no abuse of discretion.

Defendant avers that the jury selection procedures

deprived him of an impartial jury. He contends that the

process of “death qualifying" prospective jurors permitted by

the trial court produced a jury biased in favor of the State

on the issue of guilt or innocence, and one not fairly

representative of the community, in violation of the Sixth

and Fourteenth Amendments of the United States Constitution

and Article I, Sections 6, 8 and 9, of the Tennessee Consti-

tution. This argument has been rejected by both the Tennes-

see and United States Supreme Courts. See State v. Wright,

756 S.W.24 669, (Tenn. 1988); State v. Coker, 746 S.W.24

167, 171 (Tenn. 1987); State v. McKay, 680 S.W.2d 447, 450,

453-55 (Tenn. 1984); State v. Melson, 638 S.w.24d 342, 362

(Tenn. 1982); Houston v. State, 593 S.W.2d 267 (Tenn. 1980);

and Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.

Ed.24 137 (1986).

As a part of this argument Defendant also specifi-

cally challenges the exclusion of prospective jurors Wilkins,

Ivey, Hicks and Cartwright because of their views on the

-18-

—

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death penalty. In Wainwright v. Witt, 469 U.S. 412, 423, 105

S.Ct. 844, 851-852, 83 L. Ed.24 841 (1985), the United States

Supreme Court held that a trial court may constitutionally

exclude from capital sentencing juries those jurors who are

unwilling or unable to obey the law or to follow their oath.

We have examined the record and find that the responses of

the excused prospective jurors supports the trial court's

decision to exclude them.

Defendant contends that the trial court erred

during voir dire in refusing to excuse prospective jurors

Trantham and Soileau for cause and in excusing prospective

jurors Hicks and Cartwright for cause.

We have read the voir dire examination of Trantham

and Soileau and find no error in the court's refusal to

excuse them for cause. Furthermore, even if there had been

error as to one of them, Defendant failed to exhaust his

peremptory challenges, having reserved one of the fifteen.

Since he was not forced to accept an incompetent juror and

did not exhaust his peremptory challenges, he is not entitled

to relief. Ross v. Oklahoma, 487 U.S. —- 108 S.Ct. 2273,

101 L. Ed.2d 80 (1988); State v. Thompson, 768 S.W.24 239,

246 (Tenn. 1989).

Our examination of the voir dire of prospective

jurors Hicks and Cartwright reveals no error under Wainwright

v. Witt, 105 S.Ct. at 852, in their excusal.

-19-

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Defendant avers that the trial court erred in

failing to exclude the testimony of the State's serologist.

He contends her testimony that spermatozoa consistent with

human spermatozoa were found on a sample from the victim's

underpants was irrelevant to the charge of first degree

murder absent an indictment for first degree murder in the

perpetration of rape. Rape, Defendant argues, was not 4

material proposition during the guilt phase of this trial.

Even if relevant, Defendant avers, the prejudicial effect of

the testimony outweighed its probative value.

We find no merit to either argument. First,

although an indictment charges murder in the common law form

and does not specifically mention that the killing was

committed in the perpetration of, or attempt to perpetrate,

one of the felonies named in the first degree murder statute,

the charge may be proven with evidence that the killing was

committed in perpetration of, or attempt to perpetrate, one

of these felonies. State v. Johnson, 661 S.W.2d 854, 860-861

(Tenn. 1983). Evidence tending to show rape was thus rele-

vant. Second, despite the inability of the pathologist to

say that a rape had occurred because of the condition of the

body and the inability of the serologist to determine how ol¢

the spermatozoa were, the probative value of this evidence,

which supported Defendant's admissions he had raped the

victim, was not outweighed by its prejudicial effect. See

State v. Banks, 564 S.W.24 947, 951-953 (Tenn. 1978).

-20-

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Defendant alleges that the trial court erred in

overruling his request for a DNA test. The Defendant sought

#n examination of the spermatozoa found on the victim's

clothing for a DHA comparison with that of the Defendant.

Defendant's request was first made at the hearing on the

motion for a new trial at which time the oral request was

Genied. Defendant has not attempted to explain why this

request was not made before trial or to present any evidence

suggesting that a DNA test would produce admissible evidence.

We find no merit to this issue.

vit!

In Defendant's next issue, he avers the trial court

erred in admitting evidence relative to the condition of the

decedent's body as found and particularly as to anything that

occurred to the body subsequent to death. The Defendant says

that evidence that the body had decomposed and had been

Gisturbed by animals was irrelevant and, if relevant, that

its probative value is outweighed by its prejudicial effect

under State v. Banks, 564 S.W.24 at 951-953.

Testimony on these matters was relevant to explain,

among other things, how the body had been moved from its

original location, why there was no physical evidence of rape

and why the exact cause of death could not be determined. It

also indicated the length of time the victim had been dead.

The testimony regarding these facts was restrained and in no

-21-

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way unnecessarily lurid or gruesome. No photographs of the

body were shown to the jury. The trial judge did not err in

admitting the testimony of Dr. Bass.

Defendant next objects to as irrelevant Detective

Schroeder's testimony at the guilt hearing that Defendant had

told him that one way to get rid of a body was to feed it to

pigs and that he wanted pictures of the body for his scrap-

book. He also objects to admission of his statements about

putting a body in a graveyard and the various places where

authorities should search for bodies on the mountain. All of

these statements are relevant to show malice and those

concerning the location of the body evince a desire to

mislead the authorities and to evade prosecution from which

guilt may be inferred. See Marable v. State, 203 Tenn. 440,

313 S.W.2d 451, 459 (1958). The most questionable statement

is that about the ‘photographs for the Defendant's scrapbook,

but any error here is clearly harmless in light of the proof.

State v. Banks, 564 S.W.2d at 951-953.

Defendant avers that the trial court erred in

failing to suppress statements made by Defendant to various

jailhouse inmates. Defendant ‘argues that the authorities

violated his Sixth Amendment rights by using inmates to

“interrogate” him. This argument has already been discussed

in Issue I. As further grounds for suppression, Defendant,

-22-

oy ——

et a jury out hearing at trial, presented the testimony of

three prisoners - Scholtz, Freeman and Green - who had been

incarcerated with him after his indictment, to the effect

that Detective Schroeder had asked Scholtz to wear a bug in

the cell with Defendant and had inquired if these prisoners

“knew anything on" the Defendant. Schroeder testified that

their testimony about the bug was false but that Scholtz on

his own had volunteered to wear a bug. Schroeder reiterated

that he had never asked any prisoner to elicit information

from the Defendant. The trial court found that there had

been no effort by the Sheriff's Department to solicit the

information and that the Department had simply “availed”

itself of listening to what the inmates had heard the Defen-

dant say; therefore, there was no constitutional violation.

The evidence does not preponderate against the finding of the

trial court. See State v. O'Guinn, 709 S.W.2d 561, 565

(Tenn. 1986).

The Defendant complains of the State's examination

of Pandora Edwards during which the Attorney General unsuc-

cessfully tried to elicit testimony that the Defendant had

said the victim was “a whore" and "deserved it." Despite the

prosecution's questions, Edwards persisted in testifying that

the Defendant had said nothing good or bad about the victim.

Defendant objected to this line of questioning, and after a

jury-out hearing, the trial court sustained the objection and

gave curative instructions to the effect that the prosecu-

tor‘'s questions had been improper and should not be

-23-

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17?

considered. We find the prosecutor's questions improper;

however, we find his actions harmless beyond a reasonable

doubt. State v. Payne, ___ $.W.24 _ (Tenn. 1990).

xII

Defendant next argues that prejudicial prosecuto-

rial misconduct occurred during the State's cross-examination

of the Defendant when the Attorney General attempted to

Gramatize areas of conflict in the testimony of the Defendant

and other witnesses. The trial judge sustained Defendant's

objections and at one point gave the jury a curative and

explanatory instruction on the unfairness of “blanket” type

questions. Defendant requested no mistrial. There was no

reversible error.

Finally, the Defendant complains about the State's

argument at the sentencing hearing that the victim had begged

for her life. In State v. Beasley, 536 S.W.2d 328 (Tenn.

1976), we held that a prosecutor's argument must be supported

by evidence introduced at trial and the reasonable inferences

to be drawn from that evidence. Contrary to Defendant's

assertion that there was no proof that the victim had begged

for her life, the testimony of Ernest Morrison that the

victim pleaded with Defendant fully supports this argument.

Id. at 330, State v. West, 767 S.W.2d 387, 394 (1989).

XIII

-24-

ae ws x a Se Ss lhe le ee Oe oo oe le le

ese @~S&@eeewenwrrevw2weweeneu#eu#kb sd

The Defendant contends that the instructions at the

guilt phase were erroneous. He challenges the instruction on

first degree murder because it included a partial definition

of felony murder, i.e., the instruction tracked the statutory

language of T.C.A. §39-2-202(a), but did not define for the

jury the felony upon which a first degree murder conviction

could be based, here rape. It is clear there was no erroc in

instructing the jury on felony murder under the indictment

although separate counts on that charge would have been

preferable. See State v. Barnes, 703 S.W.2d 611, 615 (Tenn.

1985). It is erroneous, however, for the trial court in such

cases to omit a definition of the felony alleged to support

first degree murder. The words defining the offense of first

degree murder have a technical meaning and it is the trial

court's duty to give such meaning to the jury in the charge

and not merely to use the language of the statute. Poole v.

State, 61 Tenn. 288, 293-294 (1872); see also T.P.I. Crim.

20.02. Rape as a basis for a first degree murder conviction

was a theory presented to the jury in this case.

While the Defendant did object to charging felony

murder under the indictment and raised this as an issue on

his motion for a new trial, he did not specifically object to

the omission of the definition of rape in the charge or

request additional instructions on this point. When told by

the trial judge before the chargé, that the court intended

only to instruct the first degree murder statute, Defendant

made no objection. While there is authority that mere

meagerness of the charge under such circumstances is not

reversible error in the absence for a request for an

-25-

so ow femUmMmelmlCUCOlmlmUCUMGShLUCCNULUCUCU

Te ee ee

additional charge, see Haynes v. State, 720 S.W.2d 76, 85

(Tenn. Crim. App. 1986), a defendant has a constitutional

cight to a correct and complete charge of the law. State v.

Staggs, 554 S.W.24 620, 626 (Tenn. 1977); State v. Lee, 618

S.W.24 320, 323 (Tenn. Crim. App. 1981). The charge here

omitted is one that is fundamental in nature, essential to a

fair trial, so that the failure to request that rape be

Gefined does not preclude a finding of error. See State v.

Martin, 702 S.W.2d 560, 563-564 (Tenn. 1985); Pope v. State,

212 Tenn. 413, 370 S.W.2d 488, 489 (1963). It is the duty of

the trial judge without request to give the jury proper

instructions as to the law governing the issues raised by the

nature of the proceedings and the evidence introduced during

trial, and simply reading a statute to the jury when the

statute contains words requiring clarification does not

satisfy “the demands of justice” or the defendant's consti-

tutional right to trial by jury. State v. McAfee, 737 S.W.2d

304, 308 (Tenn. Crim. App. 1987).

The law is unsettled as to whether harmless error

analysis is available when a trial court fails to instruct on

an essential element of an offense. See, ¢€.g-., Polsky v.-

Patton, 890 F.2d 647, 651 (34 Cir. 1989); Hoover v. Garfield

Heights Municipal Court, 802 F.2d 168, 175-178 (6th Cir.

1986), cert. denied 480 U.S. 949, 107 S.Ct. 1610, 94 L.Ed.24

796 (1987). Harmless error analysis has been applied,

however, where the trial court has failed to define a sepa-

rate felony which is an essential element of the felony with

which a defendant is charged. For example, in State v. Lee,

-26-

_ if,

See ae a oe at ml

618 S.W.24 at 323, the court held that the trial court's

failure to define “murder” in a case involving a charge of

solicitation to commit first degree murder was error harmless

beyond a reasonable doubt. In Bel) v. Watkins, 692 F.2d 999,

1005-1006 (Sth Cir. 1982) cert. denied 464 U.S. 843, 104

S.Ct. 142, 78 L. £4.24 134 (1983), the Fifth Circuit held

that the trial court's failure to define the felonies of

kidnapping and armed robbery underlying a charge of capital

murder was harmless error under Chapman v. California, 386

U.S. 18, 87 S.Ct. 824, 17 L. E4.24 705 (1967). In most cases

where the courts have rejected a harmless error analysis, the

omission from the instruction, unlike that in the present

case, prevented the jury from considering a material issue so

that the trial court's failure to instruct was the equivalent

of a directed verdict. See Hoover _v. Garfield Heights

Municipal Court, 802 F.2d at 177.

In the present case the jury returned a verdict

that the Defendant was “guilty of murder in the first de-

gree." The jury was completely and correctly instructed as

to the elements of first degree, common-law, premeditated

murder, and the evidence is clearly sufficient to support a

conviction on this charge. Also, at the sentencing phase,

without the presentation of any evidence additional to that

presented at the guilt phase, the same jury was fully in-

Structed on the elements of rape in connection with aggra-

vating circumstance (i)(7) and in its sentencing decision,

only a short time after its decision as to guilt, expressly

found beyond a reasonable doubt that the murder had been

committed in the perpetration of rape. Cf. State v. Carter,

-27-

714 S.W.2d 241, 250 (Tenn. 1986). For these reasons, we are

of the opinion that the omission of the definition of rape in

the first degree murder charge, in the unique circumstances

and total context of this case, is harmless error beyond a

reasonable doubt.

Finally, the Defendant complains that a portion of

the malice instructions created a presumption of malice in

violation of Sandstrom _v. Montana, 442 U.S. 10, 99 S.Ct.

2450, 61 L. Bd.2d 39 (1979). The malice instruction in this

case speaks only of an inference of malice. It neither

presumes malice nor requires the inference to be drawn.

There is no Sandstrom error. See State v. Martin, 702 S.W.2d

560; State v. Bolin, 678 S.E.2d 40, 44-45 (Tenn. 1984).

XIV

Defendant's next issue is whether the aggravating

circumstance found by the jury is proper and supported by the

evidence. The jury was instructed as to two statutory

aggravating circumstances, T.C.A. § 39-2-203(1)(5) and (7).

The verdict form used in this case specified that “the jury

must verbatim write and specifically list below ... the

1 T.C.A. $§39-2-203(1)(5) sets forth the aggravating

circumstance that the “murder was especially heinous,

atrocious, or cruel in that it involved torture or depravity

of mind.” Section 39-2-203(1)(7) states the aggravating

circumstance that the murder was committed while the

defendant was “engaged in committing, or was an accomplice in

the commission of, or was attempting to commit, or was

fleeing after committing or attempting to commit" certain

listed felonies, in this case rape.

-28-

particular statutory circumstance or circumstances found by

the jury,” and the charge included the instruction that “the

jury must include and reduce to writing the specific aggra-

vating circumstance or circumstances so found.“ Neverthe-

less, the jury returned as its aggravating circumstance the

following: “The murder was especially heinous, atrocious in

that it involved depravity of mind while the Defendant was

engaged in committing rape." This was a finding not in

strict compliance with the instructions. However, the

statute makes no requirement of a verbatim statement of the

aggravating circumstances. See T.C.A. §39-2-203(g). The

finding of the jury is sufficient to comply wich the statute

in that the aggravating circumstances found are clearly those

allowed by the statute and permit effective appellate review

of the sentence. Cf. State v. Henley, 774 S.W.24 908, 917

(Tenn. 1989).

‘

Defendant argues that the aggravating circumstance

in (1)(7) was not supported by the proof because the jury's

finding of rape was not supported by the evidence. There is

mo merit to this argument. The Defendant's confession of

rape to two fellow prisoners corroborated by the presence of

human spermatozoa on the victim's clothing, the location of

her pants and underpants away from the body, and the posi-

tioning of her jacket and brassiere over her neck and head,

is sufficient to support the finding that the murder occurred

during the commission of a rape.

-29-

The Defendant avers that the evidence was not

sufficient to support the conviction and the sentence. Where

the sufficiency of evidence is challenged, the relevant

question for an appellate court is whether, after viewing the

evidence in the light most favorable to the State, any

rational trier of fact could have found the essential ele-

ments of the crime beyond a reasonable doubt. Findings of

guilt shall be set aside only if the evidence is insufficient

to support this finding. T.R.A.P. 13(e); Jackson v. Virgin-

da, 443 U.S. 370, 99 S.Ct. 2781, 61 L. Ed.24 560 (1979).

A jury verdict approved by the trial judge accred-

its the testimony of the witnesses for the State and resolves

all conflicts in favor of the State's theory. State v.

Williams, 657 S.W.2¢ 405, 410 (Tenn. 1983). On appeal the

State is entitled to the strongest legitimate view of the

evidence and all reasonable or legitimate inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 835

(Tern. 1978).

We are of the opinion that the evidence is suffi-

cient to support a finding that the Defendant was guilty of

first degree murder. The proof established that the Defen-

dant was the last person seen with Tara Stowe on the night

she disappeared and that he was seen shortly thereafter

wearing a class ring which had been in her possession. He

lured her into a secluded area on the pretense that her

boyfriend was waiting there for her. When Tim Sexton drove

the Defendant and Tara up Murphy Hollow Road and asked to go

so own w

with them, the Defendant refused. Tara's boyfriend, James

Dagnun, was actually in Trenton, Georgia, at that time.

Before he was arrested, the Defendant made state-

ments to acquaintances which incriminated him. Four days

after the disappearance, he asked John Dagnun if he thought

the Defendant had hurt Tara. He told Tim Sexton that Tara

had given him the ring which she was wearing the night she

Gisappeared. He asked Ronnie Nunley if he wanted a “bone

from Tara". The Defendant admitted raping Tara to two fellow

prisoners. Several others overheard the Defendant admit to

the murder.

Regarding sentencing, the Defendant challenges the

sufficiency of the evidence to support a finding of depravity

necessary to support aggravating circumstance (i)(5). The

proof here amply supports a finding of Gepravity. Cf. State

v. Cooper, 718 S.W.2d 256, 259-260 (1986) (defendant's

feelings of fright and helplessness supported finding of

torture and depravity); v. » 703 S.W.24 106, 119

(Tenn. 1985) (abduction and vicious rape of victim in remote

wooded area created a jury issue on torture and depravity);

see also State v. House, 743 S.W.24 141 (Tenn. 1987) (evi-

dence supported this circumstance where defendant lured

victim from home at night under pretense that her husband had

been in automobile wreck only to assault, rape and murder

her).

-31-

The Defendant, in his final issue, questions the

constitutionality of the Tennessee death penalty statute.

The Defendant contends that the aggravating circumstance

found in 39-2-203(1)(5) (the murder was especially heinous,

atrocious or cruel in that it involved torture or depravity

of mind) is unconstitutionally vague and overbroad under the

recent United States Supreme Court decision of Maynard v.

Cartwright, 486 U.S. __, 108 &.Ct. 1853, 100 L. Bd.2d 372

(1988). This identical argument was addressed and rejected

in our recent decision of State v. Thompson, 768 S.W.2d 239

(Tenn. 1989). See also Clemons v. Mississippi, __U.S.___,

110 S.Ct. 1441, 1449-1450, 1451, _ L.8d.2d (1990)

(impliedly approving Mississippi Supreme Court's construction

of “especially heinous” as limited to “conscienceless or

pitiless and unnecessarily torturous").

The Defendant also argues that the court's charge

at sentencing informing the jury of all eight statutory

mitigating circumstances was error under State and Federal

law. While this Court has held that only those mitigating

circumstances raised by the evidence should be charged, State

v. Buck, 670 S.W.2d 600, 608 (Tenn. 1984), in the absence of

a showing of prejudice, this errof would generally benefit

the Defendant and does not require reversal. See State v.

Carter, 714 S.W.2d at 251 (Tenn. 1986). Defendant next

argues that the failure of the instructions to limit the

mitigating factors that the jury may consider results in the

sentencer's unchanneled discretion contrary to Godfrey v.

-32-

Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L. Ed.24 398

(1980). Since the rule is clear, however, that a sentencer

at a capital trial may not be precluded from considering any

relevant mitigating evidence, see Skipper v. South Carolina,

476 U.S. 1, 106 S.Ct. 1669, 1670-1671, 90 L. Ed.24 1 (1986),

there is no merit to this argument.

Defendant also asserts that the statute's failure

to require the jury to list the mitigating circumstances it

finds prevents adequate appellate review. The United States

Supreme Court recently rejected this very argument in Clemons

v. Mississippi, 110 S.Ct. at 1449. The Defendant's final

argument is that the Tennessee statute, specifically T.C.A.

$39-2-203 (f), requires the sentencer to unanimously deter-

mine the existence of a mitigating circumstance before the

jury may consider it contrary to the dictates of Mills v.

Maryland, 486 U.S. __, ‘*® %.Ct. 1860, 100 L. Ed.2d 384

(1988). Under the Tennesse spatute, which contains none of

the features found objectionable in Mills, the jury need not

agree upon the existence of any mitigating factors and each

individual juror is free to consider any circumstances he or

she may deem mitigating in reaching a decision. State v.

Thompson, 768 S.W.2d at 250-252.

We have reviewed the sentence of death in accord

with the mandates of T.C.A. §39-2-205 and are satisfied that

the evidence warrants imposition of that penalty. Our

comparative proportionality review convinces us that the

sentence of death is neither excessive nor disproportionate

to the penalty imposed in similar cases, considering both the

-33-

——-:

so eon ew emlmlUMGMhmUCNUCUCU

—

House, 743 S.W.24 141; State v. Hartman, 703 S.W.2d 106.

The sentence of death will be carried out as provided by law

on the 24th day of July , 1990, unless otherwise ordered by

this Court or by other proper authority. Costs are adjudged

against the Defendant.

Chief Justice —

Concur:

Fones, Cooper, Harbison and O'Brien, JJ.

-%4-

ee 4 ae

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE,

Appellee, .

)

|v. ) MARION CRIMINAL

)

) S/C No. 88-57-I

HOMER B. TEEL, )

' )

Defendant -Appellant. )

ORDER ON PETITION TO REHEAR

The Defendant-Appellant, Homer B. Teel, has filed a

Petition to Rehear in the above-captioned case. After

careful consideration, the Court is of the opinion that the

Petition to Rehear is not well taken and the same is denied

at the cost of Appellant.

The Appellant has also filed in this Court a Motion

to Stay Execution, which has been set for July 24, 1990.

Appellant states in his motion that he contemplates filing a

petition for certiorari with the United States Supreme Court.

Upon consideration of the motion, the Court stays the

execution presently set for July 24, 1990, and reschedules

the execution date for September 14, 1990. This 9th day of

July, 1990.

PER CURIAM

a{u/9e

— 7 rr ae ape at >

-” ~~ = ne

a . ’ ~

IN THE CIRCUIT COURT OF MARION COUNTY, TENNESSEE

FEBRUARY TERM, June 1, 1988 ‘

MINUTE BOOK 57 - PAGE 99

BE IT REMEMBERED, That # District Court began and held on this the

lst day of June, 1988, Present and presiding the Honorable BUDDY PERRY

Judge of the 12th Judicial District of the State of Tennessee when the

following proceedings were had and entered of record to-wit:

STATE OF TENNESSEE NO. 1460 -

vs. IN THE CIRCUIT COURT OF

ee ee ee ee

HOMER B. TEEL MARION COUNTY, TENNESSEE

ORDER OVERRULING MOTION FOR NEW TRIAL

This cause came on for hearing on the lst day of

June, 1988, before the Honorable Buddy Perry, Circuit Judge,

upon defendant's motion for a new trial, and after hearing

argument of counsel and considering all of the record in this

cause and especially defendant's motion for a new trial, the

Court was of the opinion that said motion should be in all

things overruled.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED

that defendant's motion for a new trial be and the same is

herein in all things overruled.

This lst day of June, 1988.

Okay

WHEREUPON COURT ADJOURNED UNTIL CIRCUIT JUDGE {

JUNE 2, 1988.

APPROVED: BUDDY PERRY /s

Judge

. a ed ee in tn! ae te ae eee oe eee gata eee a z = ~~ e Pa =

ee @ oe | ’ : j

IN THE CIRCUIT COURT OF MARION COUNTY, TENNESSEE | . It 1s Te 9 TTS that the State of

JUNE TERM - June 9, 1988

Tennessee cause a qualified person to examine the hair

MINUTE BOOK’S7 - PAGE 272 ¥

samples in the possession of Dr. King relative to this case,”

BE IT REMEMBERED, That a District Court began and held on this the which were testified to by Dr. King at the trial of this

9th day of June, 1988. Present and presiding the Honorable Buddy D.

Perry Judge of the 12th Judicial District of the State of Tennessee .

when the following proceedings were had and entered of reocrd to-wit!

case and that said hair samples be compared with hair

samples of the Defendant, Homer Butch Teel. The obligation

STATE OF TENNESSEE

Plaintiff

vs No. 1460

HOMER “BUTCH” TEEL

Defendant -

ORDER

Various motions came on for hearing before the

Honorable Buddy Perry, District Judge, on the list day of

June, 1988. The Defendant's counsel had previously

presented orally to the Court on September 21, 1987, a

motion requesting the Court to compel the State of Tennessee

to have a qualified person examine the hair samples in the

possession of Dr. King relative to this case, which was

testified to by Dr. King at the trial of this case and that

said hair samples be compared with hair samples of the

Defendant, which the Defendant has agreed to be taken.

Additionally, the Defendant's counsel Orally moved

on June 1, 1988, that a DNA test be conducted and that a

comparison be made of his Spermatozoa with that of the

spermatozoa found by the State's Serologist, Julia Merry,

when examining certain clothing that was presented to her by

the State in this case. the Defendant acknowledged that he

would voluntarily submit such a sample for comparison

Purposes.

The Court upon hearihg the argument of counsel and

based upon the entire record in this cause does grant the

Defendant's Motion relative to comparison of hair samples

and does deny his motion relative to a DNA test and

comparison of spermetotos, n|

of the State in this regard is conditioned upon Homer Butch

Teel voluntarily consenting to the appropriate removal of

hair follicles from his head and pubic area for comparison

purposes.

IT IS FURTHER ORDERED that the results of said

analysis be reported to this Court within ea reasonable

period of time.

IT IS FURTHER ORDERED that the Defendant's Motion

relative to a DNA test and a comparison of his spermatozoa

with that testified to by the State Serologist, Julia Merry,

as having been located on che victim's clothing be and the

same is hereby denied.

Upon request of the Defendant, the Court's action

in denying his motion for a DNA test and comparison of

spermatozoa should be considered as an additional complaint

of error in his Motion for New Trial which shall be reviewed

by the appropriate Appellate Court since said new trial

motion has been overruled.

ENTER, this the GF day of June, 1988, to be

effective as of June l, 1988.

rcu ge

AP PROVED:

J. WILLIAM POPE, JR.

Assistant Attorney General

Pikeville, TN 37367

Cs #'h JUNE 10, 1988.

t APPROVED: BUDDY PERRY /s/

ov: ~{vwee pre

L. T AUSTIN

Pp. O. x 666

Dunlap, TN 37327

(615) 949-4159

AND

KELLY & KELLY, P.C.

P. O. Box 869

Jasper, TN 37347

(615) 942-691

WHEREUPON COURT ADJOURNED UNTIL

LAW OFFICE

KELLY & KELLY, P.C.

POST OFFICE BOX 869

308 BETSY PACK DRIVE

JASPER. TENNESSEE 37347 Supreme Court of the United States

Honorable Joseph F. Spaniol, Jr., Clerk

sabe sient ae October 2, 1990

> on eee ie FAK .NO, 942-2940 Page 2

EOWW Z (ZACK) KELLY. JR

WELLIAM . GOUGER. JR October 2, 1990 RECE|

. VED Thank you very much for your assistance and

OCT - 4 1990 cooperation.

OFFICE OF THE CLERK Sincerely yours,

Supreme Court of the United States SUPREME COURT, U.S.

Honorable Joseph F. Spaniol, Jr., Clerk

Office of the Clerk

Washington, D.C. 20543

Re: Homer B. Teel’s Motion

for Leave to Proceed in EZKJr/sf

Forma Pauperis and enclosures

Petition for Writ of cc: Honorable Charles W. Burson

Certiorari Attorney General, State of Tennessee

450 James Robertson Parkway

Dear Mr. Spaniol: Nashville, TN 37243-0485

I am enclosing herewith for filing the following L. Thomas Austin, Esquire

in Forma Pauperis documents relative to Homer B. Teel: P. O. Box 666

Dunlap, TN 37327

1. Motion for Leave to Proceed in Forma

Pauperis, with Homer B. Teel’s attached, Mr. Homer B. Teel -

notarized affidavit of indigency, #117983

Station A. West, Unit I 10/1

2. Separate document as required by new Rule Nashville, TN 37219-5255

29 evidencing proof of service of said Motion

for Leave to Proceed in Forma Pauperis and

Affidavit,

3. Petition for Writ of Certiorari,

4. Separate document as required by new Rule

29 evidencing proof of service of Petition

for Writ of Certiorari.

This is the first occasion that Attorney Austin

and I have had to file any documents with your office, and

in the event anything further is needed from us in this

regard, please advise.

I will certainly appreciate your forwarding to me

your acknowledgment card indicating your receipt of the

enclosed documents.

IN THE SUPREME COURT OF THE UNITED STATES

HOMER B. TEEL,

Petitioner

STATE OF TENNESSEE,

ee ee ee ee ee ee ee ee ee

°o

Respondent

CERTIFICATE OF SERVICE

I, Edwin Z. Kelly, Jr., a member of the Bar of the

Supreme Court of the United States and one of the counsel of

record for Homer B. Teel, Petitioner herein, hereby certify

that on the 2nd day of October, 1990, pursuant to Supreme

Court Rule 29.5, I served a copy of the Petition for Writ of

Certiorari to the Supreme Court of Tennessee on the Attorney

General of Tennessee, Charles W. Burson, by depositing the

same in the United States Post Office, Jasper, Tennessee,

with first-class postage prepaid properly addressed to

Respondent’s counsel at the following address:

Honorable Charles W. Burson

Attorney General, State of Tennessee

450 James Robertson Parkway

Nashville, TN 37243-0485

Phone No. 615-741-4492

All parties required to be served have been

This the 2nd day of October, 1990. GK.

"“ hy

served.

y Pack Driv

Jasper, TN 37347

(615) 942-6911

IN THE SUPREME COURT OF THE UNITED STATES

HOMER B. TEEL,

Petitioner

vs No.

STATE OF TENNESSEE,

Respondent

CERTIFICATE OF SERVICE

I, Edwin Z. Kelly, Jr., a member of the Bar of the

Supreme Court of the United States and one of the counsel of

record for Homer B. Teel, Petitioner herein, hereby certify

that on the 2nd day of October, 1990, pursuant to Supreme

Court Rule 29.5, I served a copy of the Motion for Leave to

Proceed in Forma Pauperis on the Attorney General of

Tennessee, Charles W. Burson, by depositing the same in the

United States Post Office, Jasper, Tennessee, with

first-class postage prepaid properly addressed to

Respondent’s counsel at the following address:

Honorable Charles W. Burson

Attorney General, State of Tennessee

450 James Robertson Parkway

Nashville, TN 37243-0485 -

Phone No. 615-741-4492

All parties required to be served have been

served.

1990.

This the 2nd day 7 ee

_—" “EDWIN 2.

309

(615) 942-6911

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.