Sedley Alley: Case Summary

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The Crime

On the night of July 11, 1985, Lance Corporal Suzanne Collins was abducted while jogging on the naval base in Millington, Tennessee.

At 6:30 a.m. the following morning, her body was found at Edmund Orgill Park in Millington. Ms. Collins had been beaten and sexually assaulted with a stick.

Eyewitnesses to the abduction described the attacker as 5'8" with short, dark hair and a dark complexion, wearing black shorts and driving a wood-paneled station wagon.

Shortly after the abduction, at 12:10 a.m. on July 12, Sedley Alley, whose wife worked on the naval base, was pulled over by the police because he was driving a car that fit the eyewitness description. The police located his wife and brought them both in for questioning.

The police determined that the eyewitnesses had simply observed a domestic dispute, and at approximately 1:00 a.m. Alley and his wife were allowed to leave.

Radio logs in evidence establish that Alley and his wife were seen talking on the front porch of their house at 1:27 a.m.. There is no evidence to suggest that Alley ever left the house after that time.

After Ms. Collins' body was found and the horrific nature of the crime was revealed, there was great pressure on the police to make an arrest. They immediately assumed that Alley was guilty, and by 8:30 a.m., he was in custody.

Alley told the police that they had the wrong man, but the police were persistent in attempting to obtain a confession, and threatened to arrest his wife.

Alley, who was suffering from mental illness, eventually gave in to the pressure and confessed. With Alley's confession, the police ignored all evidence that pointed to other suspects.

Alley was tried for the crime and convicted in March of 1987. He was sentenced to death, and in 1989 his conviction and sentence were upheld on appeal by the Tennessee Supreme Court.

Over the course of the next thirteen years, Alley sought in-state relief, and after being denied habeas relief by the Sixth Circuit Court of Appeals, he took his case to the United States Supreme Court, where he was denied a petition for writ of certiorari on October 6, 2003. Since that time, powerful new evidence previously hidden from the defense has emerged which points to Alley's innocence.

The new evidence also supports the theory that Alley's mental duress caused him to falsely confess to the crime.

Hidden Evidence

The Shelby County Medical Examiner examined Ms. Collins' body at 9:30 a.m., and concluded that Ms. Collins had been dead for approximately 6 to 8 hours. Thus, the time of death was between 1:30 and 3:30 a.m..

The Medical Examiner later modified his assessment, telling a law enforcement officer that Ms. Collins had been dead for closer to six hours, making the time of death 3:30 a.m.. The State's theory had always been that Alley killed Ms. Collins prior to being picked up by the police at 12:10 a.m..

Evidence supporting the theory that the victim had not been killed until 1:30 a.m., at the earliest, precludes Alley (who was accounted for from 12:10 a.m. on) from being the killer. Yet this evidence was never disclosed to Alley or his lawyers at trial.

The police also ignored another possible suspect. Witnesses told the police that Suzanne Collins had been at the base all night, until she went out for a jog close to 10:30 p.m..

They also told the police that Ms. Collins had a local boyfriend, John Borup. The police interviewed Borup, but concluded that he yielded "no information of any value." They did not note Borup's height or weight, or the car that he drove.

In fact, Borup admitted to being with the victim on the night of the homicide. He was 5'8" in height and had short dark hair, fitting the description of eyewitnesses to the abduction.

On the contrary, Alley was 6'4" tall and 200 pounds with long light reddish-brown hair, a beard and mustache.

Additionally, Borup disclosed that he would often drive his aunt's Dodge Aspen, a model of station wagon with wood-grain paneling. None of this information was made available to the defense until almost twenty years later.

In addition to this previously undisclosed exculpatory evidence, fingerprints and shoeprints from the crime scene did not match Alley's, nor did the tire track patterns at the scene, presumably left by the wood-paneled station wagon.

A False Confession

Alley, who suffers from temporal lobe epilepsy, frontal lobe dysfunction, and other mental illnesses, was interrogated for more than four hours before he gave in to police interrogators and confessed to the crime.

The police claim to have audio-taped Alley's formal statement which was said to have lasted nearly two hours. However, the tape itself is only fifty-three minutes long, and contains at least seven instances where it appears the tape-recorder was stopped.

Further, the statement that Alley gave does not comport with the facts of the crime. Social Scientist Richard Leo, a recognized expert in the evaluation of false confessions, reviewed the confession and circumstances surrounding the interrogation, and concluded:

"Mr. Alley's post admission narrative is fraught with two obvious, and seemingly inexplicable, errors. In his confession, Mr. Alley told Officers Belkovitch and Baldwin that he hit the victim with his car and that he stabbed her in the side of the head with a screwdriver yet the victim was not hit by a car and she was not stabbed in the side of the head with a screwdriver. These errors are significant because they defy rational explanation if Mr. Alley did in fact murder the victim

The fact that Mr. Alley makes these two glaring errors suggests that he was either guessing because he did not know how Ms. Collins was killed or that he was simply feeding back the account that the detectives were looking for or suggesting to him."

Ultimately, Dr. Leo found that there was "no solid evidence that validates Mr. Alley's confession and some evidence calling it into question."

Indeed, he found that it is "quite possible that Mr. Alley's confession is either partially or entirely false." As a result, Dr. Leo called for DNA testing - as "the only way we will know for sure whether Mr. Alley's confession is reliable or unreliable is to test the DNA that remains from the crime scene."

Ongoing Fight to Test DNA Evidence

The Attorney General's Office has maintained that DNA testing, even if it shows that Alley is not the contributor of the biological evidence, would not exonerate Alley. The state's own scientist, Paulette Sutton, noted twenty years ago that semen was present on the body of the victim.

At that time, DNA testing was not available. The numerous facts in the case prove that rape was an aggravating factor in the crime, thus supporting Alley's claim that the killer can be identified from the semen.

Although the samples evaluated by Ms. Sutton have apparently been destroyed, physical evidence from which DNA evidence can be obtained, including the stick, still exists.

With an execution date of May 17, 2006 rapidly approaching, Alley recently filed an action under 42 U.S.C. § 1983 asking the Federal District Court to order the release of evidence currently in the custody of the State so he could conduct DNA testing to establish his innocence.

The DNA testing would take only two weeks to complete, and the cost would be covered by the defendant.

Despite the fact that permitting the testing would not necessitate a stay of execution and would pose no cost to the State, this request was denied on April 21. Alley has appealed the decision to the Sixth Circuit Court of Appeals in Cincinnati.

Because of the withheld evidence, possible false confession, and untested DNA evidence, Alley's case bears the hallmarks of many DNA exonerations throughout the country.

Current State of the Case

Alley has attempted to reopen his initial petition for writ of habeas corpus on the basis of the withheld evidence regarding time of death. To do this, he filed a motion under federal rules of civil procedure 60(b) which allows a federal court to reopen a case if it believes that there has been a fraud on the Court.

Recently, the federal district determined that Alley cannot reopen his habeas petition. That ruling is on appeal to the Sixth Circuit Court of Appeals in Cincinnati.

Alley has also been trying to obtain documents from the FBI regarding their investigation into the matter. That lawsuit under the Freedom of Information Act has been pending for two years and is awaiting a ruling on summary judgment motions in the federal district court in Nashville.

If Alley's current attempts at relief fail, executive clemency or reprieve granted by the Governor of Tennessee will be his only recourse to prevent execution on May 17.

State v. Alley, 776 S.W.2d 506 (Tenn. 1989) (Direct Appeal).

Defendant was convicted in Criminal Court, Shelby County, W. Fred Axley, J., of premeditated first-degree murder, kidnapping, and aggravated rape. Jury found two aggravating circumstances and sentenced defendant to death. Defendant appealed.

The Supreme Court, Fones, J., held that: (1) State proved defendant's sanity at the time of the offense beyond a reasonable doubt; (2) admission of evidence of character, and accomplishments of victim and members of her family was harmless; (3) testimony of social worker about characteristics of multiple personality disorder was proper; (4) testimony of social worker that defendant's letters supported malingering was harmless; (5) psychiatric technician could give opinion on defendant's sanity; (6) cross-examination of defendant's expert related to articles which raise question of secondary gain motivation for manifesting multipersonality after criminal charge; (7) videotaped hypnotic and sodium amytal interviews of defendant were properly excluded; (8) evidence of another crime was admissible; (9) jurors were properly excused for cause; (10) death penalty was not cruel and unusual punishment; (11) reference to Bible in cross-examination of defendant's brother was harmless; (12) prosecutorial misconduct in asking defendant's brother if defendant had been in trouble with law previous to murder was harmless; and (13) death sentence was not imposed in arbitrary fashion. Affirmed.

FONES, Justice.

This is a direct appeal of a death penalty case. Defendant was convicted of premeditated first degree murder, kidnapping and aggravated rape.

The jury found two aggravating circumstances, the murder was especially heinous, atrocious or cruel and the murder was committed during kidnapping and rape, and sentenced him to death. He was sentenced to 40 years on each of the other offenses, all sentences consecutive.

The victim was Suzanne Marie Collins, age 19, a lance corporal in the U.S. Marine Corps stationed at the Millington Naval Base, while she was pursuing courses in avionics. She was described by her roommate as a friendly, happy, outgoing person, always ready to help others with their problems.

In the Marines, she was, “on the honor desk”, which required the achievement of high standards, academically and otherwise and that, “you be a real motivated, squared-away Marine.”

At approximately 10:00 p.m. on 11 July 1985 she left her barracks dressed in physical training gear, a red Marine T-shirt, red Marine shorts, white socks and tennis shoes and went jogging on the Base, north of Navy Road.

Her roommate indicated that the victim had been too busy that day to work out at the gym, which was closed at that time of night. Her body was found the next morning in Orgill Park, which adjoins the Naval Base, north of Navy Road.

Defendant was not in the military service but was married to a military person and they lived on the Naval Base. He was employed by a Millington heating and air conditioning company.

He was almost 30 years old, had two children, born of an earlier marriage, living in Kentucky, and had a history of alcohol and substance abuse.

After appropriate Miranda warnings defendant waived the presence of an attorney and gave a lengthy statement of his activities that resulted in the death of Suzanne Collins to officers of the Naval Investigating Service on the morning of 12 July 1985.

The statement was tape recorded with defendant's permission. A narrative account of the relevant events of that evening as he related them to the Naval officers follows.

About 7:00 p.m. on 11 July 1985, his wife left with two women to go to a Tupperware party. Defendant had been drinking beer before they left and by approximately 9:00 p.m. he had consumed an additional six-pack and a fifth of wine.

At that time he drove his 1972 Mercury station wagon, with a Kentucky license tag to the Mini Mart and purchased another six-pack. He was depressed, lonely and unhappy. He had no friends “of his own” here. He missed his two children, his mother and father, all Kentucky residents.

He was torn between going to Kentucky, staying where he was, or driving the car into a wall to kill himself. He drove to the north side of the Base, parked on a lot near the golf course and started running toward Navy Lake.

He ran past a girl jogging and before he got to the lake he stopped, she caught up with him and they had a brief conversation. He did not know her name and had never seen her before.

They turned around and jogged back to his car. He stopped there out of breath, and she continued on toward the gate at Navy Road. He started driving down the road toward that gate in spite of his apparent recognition that he was drunk and weaving from side to side on the roadway.

Parenthetically, the asphalt road in that vicinity has narrow lanes, no curb, the grass covered shoulders and nearby terrain are approximately level with the roadway. He heard a thump and realized he had struck the girl jogger.

Quoting from his statement, “she rolled around and screamed a couple of times and I ran over and grabbed her and told her I was going to take her to the hospital. I helped her into the car and we started towards····”

On the way to the hospital defendant said that she called him names such as a drunken bastard and threatened to get him in trouble and he tried to calm her down, without success.

When he reached the traffic light on Navy Road near the 7/11 store he turned left and again went to the north part of the Base in the vicinity of the lake.

He described in considerable detail the subsequent events, that included hitting her a few times, holding her down on the ground, and sticking a screwdriver in the side of her head,FN1 under circumstances apparently calculated by defendant to appear to be accidental. All of these actions were because she would not listen to his pleas not to turn him in.

FN1. The forensic pathologist testified that she did not have an injury to her head inflicted in the manner or means described by defendant, nor did she have any injuries that could have been caused by being struck by an automobile.

He insisted that he did not have sex with her at any time, nor did he even try at any time. He insisted that he was scared of the trouble she was threatening him with and was drunk and could not think clearly.

After sticking the screwdriver in her head and her collapse, he decided to make it appear that she had been raped. He took off her clothes, and dragged her by the feet over near a tree. There he broke off a tree limb, inserted it in her vagina and “pushed it in.” He then ran to the car and drove away.

The State called numerous witnesses who observed some of the movements of defendant and victim that night.

A Naval officer driving north toward the lake on the Base passed two male Marines jogging north, and later saw a female Marine in red T-shirt and red shorts also jogging north. After passing the lone Marine he saw a white male near an old station wagon with wood paneling that was parked on an empty lot near the buffalo pens.

The two Marines testified that as they jogged north a female Marine was jogging south and shortly thereafter they encountered a station wagon with wood grain paneling also going south that swerved over into the north lane towards them.

The car continued on southward and when they were several hundred yards further north they heard a female voice screaming in distress, “Don't touch me”, “Leave me alone.”

They immediately turned around and ran south in the direction of the scream. It was too dark to see any activity very far ahead and before they reached the scene they saw the station wagon drive off toward the main gate.

At that time they were about 100 yards away and were able to observe that the station wagon was off the road in the grass, near the fence, on the left or wrong side for a vehicle going south. Suspecting a kidnapping they continued on to the gate and gave a full report of what they had witnessed.

They accompanied military security personnel on a tour of the residential areas of the Base looking for the station wagon, without success. However, after they returned to their barracks, they were summoned to the security offices where they identified the station wagon.

Defendant had been stopped and brought in for questioning as had his wife. Their responses had allayed any suspicion that defendant had been connected with a kidnapping and they were allowed to go home.

All of these events occurred before approximately 1:00 a.m., 12 July 1985. The victim's body was found shortly before 6:00 a.m. on that date and defendant was promptly arrested by the military police.

After completing the statement, defendant voluntarily accompanied officers over the route he had taken the night before and to the location of the murder and accurately identified various things, including the tree where he had left the body and where it was found by others and from which the limb he used had been broken.

The pathologist, Dr. James Bell, testified that the cause of death was multiple injuries. He also identified several specific injuries, each of which could have been fatal. The victim had bruises and abrasions over her entire body, front and back.

He testified that the injuries to the skull could have been inflicted by the rounded end of defendant's screwdriver that was found near the scene, but not by the pointed end.

He identified the tree branch that was inserted into the victim's body. It measured 31 inches in length and had been *510 inserted into the body more than once, to a depth of twenty inches, causing severe internal injuries and hemorrhaging.

The pathologist was of the opinion that the victim was alive when the tree limb was inserted into her body. There were also bruises on the victim's neck consistent with strangulation.

The first and most serious issue presented by defendant in this Court is his contention that the evidence was insufficient to establish his sanity beyond a reasonable doubt.

Defendant presented sufficient evidence through the testimony of a psychiatrist, a clinical psychologist and staff persons at Middle Tennessee Mental Health Institute (MTMHI) to raise the issue of his sanity and shift the burden to the State to prove beyond a reasonable doubt that he was able to appreciate the wrongfulness of his conduct and had the capacity to conform his conduct to the requirements of the law. See State v. Clayton, 656 S.W.2d 344 (Tenn.1983).

Dr. Wyatt Nichols, a clinical psychologist, testified that he examined defendant on 7 November 1985 and was unable to form an opinion as to appellant's sanity at the time of the offense because defendant had amnesia and was unable to recall the events of that evening.

He referred defendant to Dr. Allen Battle when he learned that a multiple personality disorder was suspected, as he did not have experience or expertise in that area.

Dr. Willis Marshall and Dr. Battle diagnosed defendant as suffering from a multiple personality disorder. Dr. Marshall testified that he was the only psychiatrist on the evaluation team that examined defendant at MTMHI during the period defendant was at that facility, 21 April to 25 July 1986.

In order to see the patient at a time when another personality had taken over, defendant was interviewed under the influence of sodium amytal and under hypnosis.

Dr. Marshall testified that in his opinion a personality other than “Sedley” was revealed in those sessions. He was of the opinion that defendant had one alternate personality, and possibly two. Defendant's other personalities were referred to as “Power” or “Death”, and “Billie.”

Dr. Marshall testified that if either of those personalities had been in control at the time of the offense, defendant or “Sedley” could neither appreciate the wrongfulness of his conduct nor conform his conduct to the requirements of the law.

However, he was unable to say that a personality other than “Sedley” was in control at the time of the offense. Dr. Marshall admitted on cross-examination that he had no special expertise in the area of multiple personality disorders and had never personally observed an alternate personality.

Dr. Marshall admitted that defendant's detailed confession on the day following the murder was inconsistent with defendant's later claim of loss of memory and multiple personality disorder at the time of the offense.

But, he was of the opinion that there might be communication from one personality to another, one of the several areas of disagreement in the testimony of experts. Dr. Marshall did not believe that defendant had been malingering.

Dr. Allen Battle testified that he had treated more than a dozen cases of multiple personality disorders. He hypnotized defendant on three occasions and diagnosed defendant as suffering from a multiple personality disorder and he was also convinced that defendant was not faking his condition.

While he was of the opinion that he had that condition in July 1985, he had no opinion as to whether an alternate personality was in control at the time of the offense.

Defendant's older sister testified that she received a strange telephone call from him during which his voice changed and “Billie” and “Power” spoke.

A psychiatric social worker at MTMHI confirmed the voice change during the call to his sister and told of an occasion when defendant brought her some poems and drawings that he claimed were the work of another personality.

The State's witness, Dr. Sam Craddock, a clinical psychologist at MTMHI, testified that he administered psychological tests to defendant on 15 May 1986. He interpreted the tests as justifying the opinion that defendant was exaggerating and malingering.

He noted that defendant had no history prior to the murder, of mental health treatment and was of the opinion that it was improbable that a condition of insanity had taken control of his actions on the evening of the murder.

He reviewed the videotaped sessions during which defendant was under hypnosis and continued to be of the opinion that defendant was able to appreciate the wrongfulness of his conduct and conform his conduct to the requirements of the law. His diagnosis was borderline personality disorder with a chronic history of drug and alcohol abuse. He found no evidence of multiple personality disorder or psychosis.

Dr. Zillur Athar, a forensic psychiatrist in private practice, saw defendant at MTMHI as a member of a treatment team, consisting of a psychiatrist, a psychologist, a social worker and a nurse.

He testified that multiple personality disorder is a very rare condition, that usually manifests itself in late adolescence and, according to the literature, 90 percent of the persons diagnosed as having that affliction are females. He had only seen three persons with that condition, all of whom were females.

He described multiple personality disorder as a condition where the physical body belonged to two or more distinct, well-integrated personalities, each with a separate set of memories that the other is completely unaware of, a total amnesia about the other personalities.

He was of the opinion that defendant was a malingerer with a borderline personality disorder. He testified that defendant's actions and descriptions of the personality “Death” or “Power” does not fit the multiple personality definition, nor was he psychotic.

Dr. Athar had studied the tapes of two hypnotic interviews of defendant and testified that he saw nothing to indicate to him that there was a personality separate from “Sedley.”

Two other members of the evaluation and treatment team at MTMHI reached similar conclusions to those of Dr. Craddock and Dr. Athar. Dr. William Brooks, a psychiatrist, and Dr. Lynne Zager, a clinical psychologist, both of whom had examined defendant at the Midtown Mental Health Institute in Memphis, testifying for the State, found no evidence of multiple personality or psychosis or any condition that would support an insanity defense.

Their diagnosis was borderline personality disorder, mixed substance abuse and malingering. Dr. Ray Gentry, a clinical psychologist, gave similar testimony.

There was a great deal of lay testimony of significance on the issue of defendant's sanity. His behavior when he was in custody around midnight on 11 July, was described as normal and his responses to questioning about a possible kidnapping as reported by the two Marines was so coherent and believable he was not detained.

There was testimony that he engaged in bizarre behavior just before he knew he was to meet with the team of mental health professionals to evaluate him.

The expert testimony that defendant was not insane under the standard of Graham v. State, 547 S.W.2d 531 (Tenn.1977), was strong and impressive and this Court is satisfied that the State proved defendant's sanity at the time of the offense, beyond a reasonable doubt and in full compliance with the mandates of Jackson v. Virginia,

* * *

We have carefully reviewed this case in accord with the requirements of T.C.A. § 39-2-205(c) and find that the sentence was not imposed in any arbitrary fashion, that the evidence supports the jury's findings of the aggravating circumstances in T.C.A. § 39-2-203(i)(5) and (i)(7), the absence of any mitigating circumstances and that the sentence of death was not disproportionate to the penalty in similar cases.

The convictions and sentences imposed in the trial court are affirmed. Unless stayed by proper authority, the sentence of death will be carried out as provided by law on the 13th day of November, 1989.

Alley v. State, 882 S.W.2d 810 (Tenn.Cr. App. 1989) (PCR).

Petitioner sought postconviction relief from murder conviction and death sentence, 776 S.W.2d. 506. The Criminal Court, Shelby County, W. Fred Axley, J., dismissed petition. Petitioner appealed as of right.

The Court of Criminal Appeals, White, J., held that: (1) petitioner was entitled to make offer of proof of testimony of expert witnesses who testified at petitioner's murder trial, and (2) trial judge's statements and rulings in postconviction relief proceedings required recusal in order to avoid public appearance of impropriety. Reversed and remanded.

WHITE, Judge.

Appellant, Sedley Alley, appeals as of right from the dismissal of his petition for post-conviction relief by the Shelby County Criminal Court.

On March 18, 1987, appellant was convicted of and sentenced to death for the brutal killing of nineteen year-old Suzanne Marie Collins, a Marine lance corporal stationed at Millington Naval Base.FN1 Appellant also received consecutive forty-year sentences for aggravated kidnapping and aggravated rape.

On August 7, 1989, the Supreme Court of Tennessee affirmed the verdict in State v. Alley, 776 S.W.2d 506 (Tenn.1989) and, on February 21, 1990, ordered that his execution be carried out on May 2, 1990.FN2

On April 25, 1990, appellant filed a pro se petition for post-conviction relief. Counsel was appointed, and, after a series of hearings in which the trial court ruled on various defense motions, evidentiary hearings were held on March 1st and 15th and April 5th, 26th, and 29th, 1991.

On September 23, 1991, the trial court entered findings of fact and law denying the petition for post-conviction relief.

FN1. A complete statement of the facts in this case may be found in the Supreme Court's opinion, State v. Alley, 776 S.W.2d 506 (Tenn.1989). It is unnecessary to recount them here. FN2. Judge Jones of the Court of Criminal Appeals granted an indefinite stay of execution on April 26, 1990.

Appellant raises ten issues on appeal. Five issues are related to the allegations raised in the post-conviction petition: ineffective assistance of counsel, unconstitutional jury instructions, prosecutorial misconduct, unconstitutionality of the death penalty, and other trial errors.FN3 Five issues concern post-conviction hearing procedures FN4 and allege that the trial court erred in:

1. disallowing appellant an opportunity to make an offer of proof regarding the deficiencies in the medical and psychological evaluations at trial; (Issue V)

2. denying appellant an opportunity to introduce evidence regarding the deficiencies in the medical and psychological evaluations at trial; (Issue IV)

3. denying appellant a full and fair hearing on all available grounds for relief; (Issue VI)

4. failing to recuse himself; (Issue I) and,

5. denying appellant funds to retain an expert to review the medical records and conduct an analysis of appellant's medical conditions. (Issue III)

Since our conclusion is that this case must be remanded to a different trial judge for further proceedings, we will not, at this time, address the substantive issues raised by appellant in his post-conviction petition.

Some background information about the trial is necessary, however, to understand the issues that arose during the post-conviction proceedings.

* * *

In light of the disposition of appellant's issue regarding recusal, we need only say that, at a subsequent hearing, the testimony of the medical experts to the extent it is relevant should be admitted. Should the court exclude certain portions, offers of proof shall be allowed in accordance with Rule 103.

II. Recusal

Appellant contends that the trial judge has developed a personal bias against appellant and that the judge decided some of the factual issues and the ultimate result prior to hearing any evidence or argument.

In support of his position that the judge was personally biased because of his views on capital punishment and post-conviction proceedings, appellant points to a number of statements made by the judge.

1. Prior to ruling against the stay of execution scheduled for May 2nd, the judge said, “Just a minute. I'll take it under advisement till May the 3rd.”

2. On the day the petition for relief was filed, the trial court noted, “[A]s I said when I spoke to the Rotary Club some few months ago, the best way to give them bed space-I can give them fifty-seven beds tomorrow, if they'll just execute some of these people that are already in line for it.”

3. After denying the stay, the trial judge stated, “They better hope the governor answers his phone. Or that it's not out of order.”

4. In referring to Sedley Alley, the court said, “That's unusual. He's never been cooperative with anybody.”

The statements quoted in paragraphs one, two, and three occurred on April 25, 1990, the day the petition was filed.

On Thursday, April 26, 1990, after appointing counsel, the trial court set the matter for an evidentiary hearing on Monday, April 30, 1990, over the objections of appellant's counsel. FN12

Since the trial transcript was thirty-four volumes and was filed with the deputy clerk of the Court of Criminal Appeals in Jackson, counsel argued that he would be unable to prepare for an evidentiary hearing in such a short time. Moreover, he would be unable to confer with his client.FN13

FN12. Judge Jones of this court who granted a stay of execution in response to appellant's Rule 9 appeal held that the denial of the stay and the hearing schedule constituted “a palpable abuse of discretion ··· violative of the Law of the Land provision of the Tennessee Constitution.”

FN13. Judge Jones' order granting the stay of execution required the trial court to continue the hearing for a reasonable time to allow counsel to prepare. A piece-meal evidentiary hearing was held on March 1, March 15, April 5, April 26 and April 29, 1991.

Appellant contends that the following statements and facts demonstrate that the trial court had predetermined factual issues in this case prior to hearing any evidence on the matter.

1. Before reading appellant's pro se petition, the trial judge said, “The Court views this petition simply as some way to delay his execution and obviously that's what it is. And that's fine. But I don't-I just don't see the need to set it off for months and months and months.”

2. In discussing the necessity for hearing testimony from the trial experts, the court said, “The court's view of this is, is simply that the number of psychologists and psychiatrists on each side, and some took no position for or against, that this was adequately explored, and I will deny it.”

3. With respect to the preparedness of defense counsel, the trial court stated, “I know how much time they put into this thing. I know exactly what they were doing···· They were as prepared as they needed to be ··· Mr. Jones and Mr. Thompson have never been as prepared as they were on this case.”

4. With respect to allegations of the petition, “But from the Court's own knowledge at trial, many of these are not founded. When you compare it with the transcript, some of the things that these post-convictions say counsel failed to do, they did in fact do.” FN14

5. After the evidentiary hearing began, appellant's counsel wanted to go forward with expert proof. Before any proof was introduced, the Court said, “[T]he totality of the circumstances is that they did exactly, as a group what you're saying that wasn't done···· And, these doctors conferred as a group, together, about Mr. Alley. It was done exactly, what you're saying wasn't done, was done, as a group.”

6. In response to counsel's argument that Dr. Battle should be permitted to testify at the evidentiary hearing, the court responded, “What do you think a man with his ego would say? Listen, I know exactly.”

In addition to alleging bias and prejudice, appellant contends that the trial judge failed to respect and comply with the law as required by Canon 2 of the Code of Judicial Conduct.FN15 Tenn.Sup.Ct.R. 10.

Appellant cites the trial judge's refusal to grant a stay of execution in compliance with Tennessee Code Annotated Section 40-30-109(b) as indicative of this disrespect. Appellant alleges that further disrespect is demonstrated by the trial judge's response to this court's stay and continuance order

* * *

While we could remand this case to enable the trial judge to evaluate the potential appearance of partiality in this case, we deem that procedure inefficient. We have carefully read the record and considered the points raised.

We are mindful of the hindrances encountered by trial judges whose trial dockets often become saturated with post-trial petitions, many of which require days of complicated testimony.

We are not callous to their appropriate efforts to dispense justice more swiftly. Moreover, we do not question in the least the judge's intentions in this cause or his determination, from a subjective, personal viewpoint that recusal was not necessary.

Nonetheless, applying the objective standard required by our Code of Judicial Conduct, we deem recusal appropriate in this case in order to avoid the public appearance of partiality.

We, consequently, remand this case for transfer to another judge who will conduct a new hearing in accordance with the statutes and this opinion.

Alley v. Statey, 958 S.W.2d 138 (Tenn.Crim.App. 1997) (PCR).

Petitioner sought post-conviction relief from murder conviction and death sentence, 776 S.W.2d 506. The Criminal Court, Shelby County, L. Terry Lafferty, J., dismissed petition. Petitioner appealed as of right.

The Court of Criminal Appeals, White, J., 882 S.W.2d 810, reversed and remanded. On remand, the Criminal Court denied relief. Petitioner appealed. The Court of Criminal Appeals, Wade, J., held that: (1) comments by judge during initial post-conviction hearing did not entitle defendant to post-conviction relief; (2) defendant failed to prove trial judge's bias; (3) attorneys did not render ineffective assistance; (4) defendant failed to show need for expenses for experts; (5) prosecutor's closing argument about mercy was not erroneous; (6) trial judge and prosecutor should have provided defendant with copy of letter that judge had received from victim's family; (7) malice instruction did not shift burden of proof; and (8) instruction to judge truth of confession is constitutional. Affirmed.

WADE, Judge.

The petitioner, Sedley Alley, appeals from the trial court's denial of post-conviction relief and presents the following issues for our review:
(1) whether he was denied a fair trial due to the impartiality of the trial judge;
(2) whether a prospective juror was improperly dismissed;
(3) whether he was denied the effective assistance of counsel at trial and on direct appeal;
(4) whether the post-conviction court erroneously denied the petitioner expert services;
(5) whether the post-conviction court erroneously denied the petitioner the opportunity to make an offer of certain mitigating proof;
(6) whether the prosecutor committed reversible error during trial;
(7) whether the trial court committed reversible error during trial;
(8) whether the trial court properly instructed the jury at the guilt and penalty phases of the trial; and
(9) whether the Tennessee death penalty statute is unconstitutional.

We affirm the judgment.

The petitioner attacked the female victim while she was jogging near the Millington Naval Base, raped and killed her. At trial, the petitioner relied upon an insanity defense; through testimony, he attempted to prove that he was under the control of a separate personality at the time of the offense.

The petitioner was convicted of premeditated first degree murder, kidnapping, and aggravated rape; at the conclusion of the penalty phase of the trial, he was sentenced to death on the murder conviction.

The jury found two aggravating circumstances as grounds for this sentence: that the murder was especially heinous, atrocious, or cruel; and that the murder was committed during the kidnapping and rape. The trial court imposed consecutive forty-year terms for the two other offenses.

The supreme court affirmed each of the convictions on direct appeal. State v. Alley, 776 S.W.2d 506 (Tenn.1989). Thereafter, the petitioner filed a petition for post-conviction relief, which was denied by the trial court. On appeal, this court reversed, ordered the recusal of the trial judge, and remanded the case for a new hearing. Alley v. State, 882 S.W.2d 810 (Tenn.Crim.App.1994).

This court ruled that the trial court should have allowed the petitioner to make an offer of proof as to the expert testimony he intended to produce. Id. at 818. At the conclusion of the evidentiary hearing, the replacement judge denied the petitioner post-conviction relief.

The record of the post-conviction proceeding establishes that Deborah Richardson, a Mental Health Program Specialist with Middle Tennessee Mental Health Institute, assisted with the assimilation of the petitioner's records during his four-month evaluation period.*141

The evaluation team included Ms. Richardson, Dr. Marshall, Becky Smith, Julie Maddox, Dr. Samuel Craddock, Dr. Zillur Athar, and two nurses.

Ms. Richardson testified that birth records are not normally obtained for mental health examinations unless there is something about the patient's current functioning which would indicate congenital organic impairment; in her opinion, nothing about the petitioner's condition suggested a review of his birth records before his trial.

When asked by the team of his medical background, the petitioner failed to mention anything of consequence.

At the evidentiary hearing, Ms. Richardson testified that she did review records indicating that the petitioner's mother suffered from edema during pregnancy.

The petitioner's Apgar scores, which measure the infant's responsiveness after birth, declined over time; she also learned that the petitioner was born with a collapsed lung and spina bifida (a hole in the spinal cord). EEGs and CAT scans revealed nothing. Ms. Richardson confirmed that none of these conditions were explored by the evaluation team before the trial.

It was established that the petitioner also suffered from congenital kidney problems and an abnormal external genitalia.

The petitioner had undergone several urethral strictures during his childhood, which entailed inserting a rod-like instrument into the urinary tract. He also had urethral surgery at age fifteen and suffered hemorrhaging of the penis shortly after the operation.

The petitioner also had a history of febrile seizures before his surgery and had one afterwards. One of the reports pertaining to his urinary tract problem mentioned the term “neurosis,” but this was not further investigated by the team.

The petitioner also suffered a head injury during a diving accident; the team took this into account during their evaluation. At the evidentiary hearing, Ms. Richardson acknowledged that the team did not consult a urologist or a geneticist with regard to any of these problems.

She did testify that the team could find no connection between these physical problems and the alleged multiple personality disorder and concluded there was no need to research the problems any further. Ms. Richardson asserted that the team took extraordinary measures with the petitioner because of the nature of the alleged symptoms.

She confirmed that records were also obtained subsequent to the trial indicating the petitioner was admitted to a hospital in Ohio for similar urinary tract problems; that was not investigated further.

* * *

The record fully supports the post-conviction court's findings and conclusions. The petitioner has not met his burden of proof. We conclude that the petition for post-conviction relief was properly denied. Accordingly, the judgment of the post-conviction court is affirmed.

Alley v. Bell, 307 F.3d 380 (6th Cir. 2002) (Habeas).

After his conviction for kidnapping, rape, and first-degree murder and his death sentence were upheld on direct appeal, 776 S.W.2d 506, and he was denied state postconviction relief, 958 S.W.2d 138, petitioner sought federal habeas corpus relief.

The United States District Court for the Western District of Tennessee, Bernice B. Donald, J., 101 F.Supp.2d 588, denied petition. Petitioner appealed. The Court of Appeals, Boggs, Circuit Judge, held that: (1) allegations failed to present viable claim of judicial bias; (2) petitioner was not entitled to evidentiary hearing on claim that alleged ex parte contacts between trial judge and jurors violated his right to personal presence at critical stages of his trial; (3) exclusion of videotaped interviews conducted while petitioner was hypnotized did not violate due process; (4) exclusion of videotaped interviews during sentencing phase of trial did not support habeas relief; and (5) state courts' rejection of ineffective assistance of counsel claim did not support habeas relief. Affirmed.

BOGGS, Circuit Judge.

Petitioner Sedley Alley was convicted of the 1985 kidnapping, rape, and murder of United States Marine Corps Lance Corporal Suzanne Marie Collins and was sentenced to death. His conviction and sentence were affirmed on direct appeal, and Alley was denied relief in state post-conviction proceedings.

Alley's petition for federal habeas relief, filed pursuant to 28 U.S.C. § 2254, was denied by the United States District Court for the Western District of Tennessee in an exhaustive and well-reasoned opinion. For the reasons herein, we affirm the district court's denial of Alley's petition.

Alley, a civilian married to a military person, abducted nineteen-year old Lance Corporal Collins while she was jogging near Millington Naval Base in Millington, Tennessee late in the evening of July 11, 1985.

He attacked and murdered her and left her body in a field. Two marines jogging near where Collins was abducted heard Collins scream and ran toward the sound. However, before they reached the scene, they saw Alley's car drive off.

They reported to base security and accompanied officers on a tour of the base, looking for the car they had seen. Unsuccessful, they returned to their barracks.

Soon after returning to their quarters, however, the marines were called back to the security office, where they identified Alley's car, which had been stopped by officers. Alley and his wife gave statements to the base security personnel accounting for their whereabouts.

The security personnel were satisfied with Alley's story, and Alley and his wife returned to their on-base housing. Collins's body was found a few hours later, and Alley was immediately arrested by military police.

He voluntarily gave a statement to the police, admitting to having killed Collins but giving a substantially false-and considerably more humane-account of the circumstances of the killing. Alley was convicted on March 18, 1987 of murder in the first degree and was sentenced to death.

He was also convicted of aggravated kidnapping and aggravated rape, for which he received consecutive forty-year sentences. The Tennessee Supreme Court affirmed Alley's conviction and sentence on direct appeal. State v. Alley, 776 S.W.2d 506, 508-10, 519 (Tenn.1989).

Alley filed a state petition for post-conviction relief, alleging numerous grounds, including several claims of judicial bias, challenges to the trial court's evidentiary rulings, and claims of ineffective assistance of counsel. The judge who presided over Alley's trial held several hearings on the petition before denying it.

On appeal, the Court of Criminal Appeals vacated the denial and, in response to Alley's claims of judicial bias, remanded the case for an evidentiary hearing before a different trial judge. Alley v. State, 882 S.W.2d 810, 823 (Tenn.Crim.App.1994).

Another trial judge undertook an evidentiary hearing, and then denied Alley's petition. Alley v. State, No. P-8040, slip op. (Shelby County Crim. Ct. Aug. 31, 1995).

This disposition was affirmed by the Tennessee Court of Criminal Appeals, and the Tennessee Supreme Court denied Alley permission to appeal. Alley v. State, 958 S.W.2d 138 (Tenn.Crim.App.1997), permission to appeal denied, (Tenn. Sept. 29, 1997).

Alley filed the present petition for habeas corpus in district court, and the court denied Alley relief. Alley v. Bell, 101 F.Supp.2d 588, 604-06, 666 (W.D.Tenn.2000).

Thereafter, this court granted him a certificate of appealability on the following five issues: (1) whether Alley was denied due process because he was tried by a biased judge; (2) whether ex parte contacts between the judge and jurors in Alley's case violated his constitutional rights; (3) whether, at the guilt phase, Alley was denied his right to present a full defense through the unconstitutional exclusion of proof that he suffers from multiple personality disorder; (4) whether, at the sentencing phase, Alley was denied his right to receive consideration of mitigating evidence when the trial court excluded the same multiple personality disorder evidence; and (5) whether Alley received constitutionally ineffective assistance of counsel.

* * *

Alley next argues that, even if his constitutional rights were not violated by the trial court's exclusion of the videotape evidence at the guilt phase of his trial, they were violated by the court's exclusion of the evidence at the sentencing phase.

At the beginning of his sentencing hearing, Alley moved for admission of the hypnosis and Sodium Amytal videotapes, and the trial court denied his motion.

On direct appeal to the Tennessee Supreme Court, Alley argued that this was error, because the evidence was relevant to two potential mitigating circumstances, tenn.Code Ann. § 39-2-203(j)(2) & (8) (1982) (repealed).FN5 Petitioner's Brief to the Tennessee*397 Supreme Court at 34. He further argued that he had a constitutional right to present all relevant mitigating evidence. Ibid.

* * *

In the present case, the Tennessee courts did not exclude from the jury's consideration at sentencing the alleged fact of Alley's multiple personality disorder. Indeed, Alley had the opportunity to present wide-ranging evidence on this aspect of Alley's character.

Instead, the state court, after viewing the tapes, merely weighed and then precluded introduction of the videotapes allegedly showing manifestations of this disorder, because it held the tapes irrelevant and unreliable.

Further, as explained above, the court did not do so based on a per se rule, or a mechanical, arbitrary, or disproportionate application of a state rule.

The state court may have erred in its weighing; however, Alley has simply not shown that this state evidentiary decision was contrary to clearly established Supreme Court case law.

* * *

For the foregoing reasons, we AFFIRM the district court's denial of Alley's petition for a writ of habeas corpus.

Sedley Alley

The victim

Suzanne Marie Collins