December 3, 1997

MICHAEL WAYNE HOWELL, APPELLANT,
v.
STATE OF TENNESSEE, APPELLEE.

SHELBY COUNTY. HON. L. T. LAFFERTY, JUDGE. (Post-Conviction: Death Penalty).

Joe G. Riley, Judge, Concur: Gary R. Wade, Judge, David G. Hayes, Judge.

The opinion of the court was delivered by: Riley

Petitioner, Michael Wayne Howell, appeals the dismissal of his petition for post-conviction relief. He was previously convicted of grand larceny and felony murder and received a sentence of death by electrocution for the felony murder. On appeal Howell contends the trial court erred in dismissing his petition for post-conviction relief and presents the following issues for our review: (1) whether he received effective assistance of counsel at his original trial; and (2) whether the refusal to allow evidence at his sentencing hearing of his co-defendant's recantation constituted a wrongful denial of his right to present mitigating evidence. We find petitioner has failed to establish his claim of ineffective assistance of counsel and further find the recantation issue has previously been determined; therefore, we AFFIRM the judgment of the trial court.

PROCEDURAL HISTORY

Petitioner was convicted of grand larceny and felony murder in September 1989, and was sentenced by the jury to death for the felony murder. The death sentence was ordered to run consecutively with a death sentence that petitioner received in Oklahoma as well as a 25-year sentence for attempted murder in Florida. Both of these out-of-state convictions arose out of events that occurred shortly after the Tennessee homicide.

The Tennessee Supreme Court affirmed petitioner's conviction and death sentence in November 1993. State v. Howell, 868 S.W.2d 238 (Tenn. 1993). The United States Supreme Court denied certiorari in March 1994. Howell v. Tennessee, 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687 (1994). In February 1995, petitioner timely filed his petition for post-conviction relief. The denial of this petition by the trial court on March 3, 1997, led to this appeal.

I.

FACTS

In order to provide the appropriate background for the issues presented for review, we recite the facts and procedural summary as set forth by the Tennessee Supreme Court on direct appeal:

On Saturday, October 31, 1987, between 10:00 a.m. and 1:00 p.m., the defendant and his girlfriend, Mona Lisa Watson, walked to the house of his brother's girlfriend, Cheri Goff. After arriving, the defendant showed Goff a set of keys to the Lynn Whitsett Corporation property in Memphis where he had previously worked, and announced that "he was going to go get him a truck." The defendant also said "he was going down hard this time, and he was going to take some people with him." After making these statements, Goff said the defendant used her telephone to call someone about getting a gun for him. Goff also testified that she had previously seen the defendant carrying a silver handgun with a white, or bone, handle.

Later that same night, sometime after 8:00 p.m., Terry Lee Ellis drove Howell and Watson to Raines Road and left them at the Ryder Truck Terminal near the Lynn Whitsett property. Earlier, around 7:30 p.m., the defendant and Watson had stopped by the home of Robert Brink, the husband of one of Watson's friends. Brink said Howell asked to borrow some money and used the telephone, but did not stay long.

Around 2:30 a.m. on Sunday, November 1, 1987, the defendant and Watson purchased a candy bar at the Quick-Shop Food Store on Macon in Memphis. Cassandra Henderson, the clerk on duty testified that the defendant was driving a white pickup truck with writing on the door and a workman's rack on the back, which he had parked on the blind side of the store. Henderson also said that as Howell was leaving the store, he bumped into another customer, Rodney Graves, who was entering the store, and a fight broke out between the two men. After the fight, Henderson said she saw the defendant in the store parking lot with a silver pistol. Rodney Graves testified that after the fight, Howell went outside and returned to the front door of the store carrying a silver gun with bone handle, but nothing happened and the defendant left the premises.

Later that day, sometime in the evening of November 1, 1987, the defendant and Watson drove the Whitsett truck to Stanley Johnson's house. Johnson testified that Howell was waving around a nickel-plated .38 caliber pistol with a bone handle, which the defendant referred to as "Jesus Christ." In addition, Johnson said Howell told him that "anybody messes with us, I'll introduce them to Jesus Christ." Thereafter, between 9:00 and 10:00 p.m., Cheri Goff said she was returning home from a movie with some friends when she saw the defendant driving a white truck with a Lynn Whitsett logo on the side and red sideboards on the back.

At 11:05 p.m. on November 1, 1987, Tennessee Highway Patrol Officer Aaron Chism said he stopped by Loeb's 7-Eleven Market on Whitten Road off Interstate 40 in Shelby County, and saw the victim, Alvin Kennedy, working at his job on the midnight shift. Between 12:20 and 12:40 a.m. that same night, Brian Moser said he came into the Loeb's store to purchase a six-pack of beer, but there was no clerk in the store. As a result, after waiting a few minutes, Moser said he decided to go across the street to the Southland 7-Eleven and purchase his beer.

At 12:45 a.m., Charles Allen stopped at Loeb's 7-Eleven to purchase some gasoline. When he went to pay for his gas, Allen found Kennedy's body lying behind the counter in a pool of blood, the cash register drawer open, and all of the paper money missing. As a result, Allen said he ran across the street to the Southland 7-Eleven and asked the clerk to call the police.

Upon investigation, it was discovered that Kennedy had been shot once from close range in the upper right forehead. The wound had immediately rendered him unconscious, and he had died within a short time. It was also discovered that $111.16 was missing from the store. The tape from the cash register indicated that the last transaction had occurred at 12:24 a.m.

Susan Bauer, the clerk at the Southland 7-Eleven across the street from the Loeb's store, testified that she remembered Watson and the defendant purchasing beer and a candy bar at her store around 12:20 a.m., approximately 20 minutes before Allen came in asking her to call the police. She said she remembered when they came in because they parked the Whitsett truck on the blind side of the store, which she thought was suspicious for that time of night.

Later that day, Monday, November 2, 1987, at approximately 9:00 p.m., Charlene Calhoun was shot in the parking lot of her apartment complex near Interstate 40 in Dell City, Oklahoma, and her 1987 Toyota Tercel was stolen. A witness who heard the shooting said he saw a man and a woman get into a light-colored Toyota hatchback and drive away after the shots were fired. The Lynn Whitsett truck was found only 125 feet from the scene of the shooting, with its interior on fire, and the defendant's left palm prints on the truck's fenders.

On the morning of Tuesday, November 3, 1987, Stanley Johnson said he saw Howell and Watson in Memphis, and they were driving a small compact car. The defendant asked Johnson for money and said that "he had a little heat on him [and] had to get out of town." Johnson said he gave Howell $20, and promised to try to raise a couple of hundred dollars more by that evening.

That night, the defendant and Watson came to Johnson's house. After Johnson told the defendant he had not been able to raise any money, Howell asked Johnson to sell his gun for him. When Johnson said he couldn't get $5 for the gun, the defendant decided to keep it. Johnson also told the defendant that the story of the killing was being broadcast, that his picture was being shown on TV, and it was reported that he killed a man for $17. Johnson testified that he asked the defendant "Why $17?," and Howell replied, "Yeah, he wouldn't open the safe, so I told him I'd introduce him to Jesus Christ if he wouldn't open the safe. You know how I am, Stan. If they're old enough to talk, I wasn't going to leave a witness. They're old enough to die." After giving the defendant $30 and promising to try to find $200 for him by the next night, Johnson said Howell and Watson left, and he never saw them again.

Almost a month later, on November 29, 1987, the defendant and Watson were arrested in Panama City, Florida, after a shoot-out with police and a high-speed chase. They were driving the stolen Toyota from Oklahoma, but had replaced the Oklahoma tags with Tennessee plates from another vehicle. Florida police found a nickel-plated Smith & Wesson .38 revolver with a bone handle on the floorboard of the passenger's side where the defendant had been seated. Ballistics tests indicated that the bullet that had killed Alvin Kennedy had been fired from this gun, as had the bullet taken from the body of Charlene Calhoun in Oklahoma.

The last evidence introduced by the State was the redacted testimony of co-defendant Mona Lisa Watson given in April of 1988 at the defendant's Oklahoma preliminary hearing for the murder of Charlene Calhoun. Watson agreed to testify against the defendant in return for a life sentence. Although she later decided not to testify at both the Tennessee trial and the Oklahoma trial, Watson was questioned on direct examination by the prosecutors at the Oklahoma preliminary hearing. She testified that she and the defendant had driven Interstate 40 from Memphis to Oklahoma in the Lynn Whitsett truck on November 1 and 2, 1987. Watson said they drank beer and shot cocaine on the trip, and when they got to Dell City, Oklahoma, she said they got off the interstate and stopped at an apartment complex to walk around. After walking around for a few minutes, Watson said Howell shot Charlene Calhoun, the two of them took her car, and they set fire to the Lynn Whitsett truck by igniting lighter fluid she had thrown on the front seat. Then, Watson said she and the defendant drove back to Memphis in Calhoun's car, and thereafter to Florida on November 3, 1987.

On cross-examination during the Oklahoma preliminary hearing, the Oklahoma public defender representing Howell asked Watson questions about a shooting in Memphis prior to their trip to Oklahoma. Watson testified that before going to Oklahoma she and the defendant had gone into a convenience store in Memphis to purchase a six-pack of beer. After Howell handed her the beer and told her to go to the car, Watson said the defendant pulled a gun and shot the clerk in the head, and that it was the same gun Howell had shown her earlier.

Later, at the Tennessee trial, Howell's defense counsel tried to impeach the preliminary hearing testimony of Watson. He attempted to introduce testimony from Watson's Oklahoma lawyer and the defendant's Oklahoma lawyer that Watson later stated that she had lied during the preliminary hearing in order to escape the death penalty herself. The Memphis trial Judge, however, sustained the State's objection that the evidence was hearsay and self-serving, and ruled the evidence inadmissible. Except for this attempt to impeach Watson's former testimony, the defendant presented no testimony on his behalf at the guilt phase of the trial.

Based upon this evidence, the jury found the defendant guilty of first-degree murder in the perpetration of a felony and grand larceny, but not guilty of premeditated first-degree murder.

In the sentencing phase, the state incorporated the evidence presented at the guilt phase, and introduced proof that the defendant had been convicted of armed robbery in Wyoming in 1980, of first-degree murder in Oklahoma in 1988, and of armed robbery and attempted first-degree murder in Florida in 1988.

In mitigation, the defendant's main theory was that he suffered from brain damage, and therefore his ability to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was impaired. The defendant's mother testified that Howell was a loving son who had come from a very poor family. She also testified that the defendant's father drank heavily, and the defendant grew up witnessing his father beating her. The defendant's mother testified that Howell, the fifth of nine children, had been born prematurely as a result of one such beating. After being diagnosed as a slow learner and being placed in special education classes, the defendant's mother said Howell finally dropped out of school in the eighth grade and went to work on his father's garbage truck.

The other evidence presented by the defendant's sister and mother demonstrated that he had suffered four head injuries during his life. Once, while working on the garbage truck, the defendant was hit in the head by the truck compactor door and his skull was fractured. Another time, during a fight, one of his brothers hit him in the head and knocked him out with a bumper jack. The third injury occurred when a winch cable broke loose and knocked him unconscious while he was working on a river boat. The last injury occurred when he was knocked unconscious after taking several left hooks during a boxing match in the Wyoming prison.

The defendant's other witness, Dr. Phillip Murphy, a clinical psychologist, testified that he administered a battery of psychological tests to Howell in November of 1988. Dr. Murphy said that the test results showed "definite evidence of brain damage," and that the brain abnormalities impaired Howell's ability to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law to the extent that his judgment was substantially affected. Dr. Murphy diagnosed the defendant as suffering from chronic organic brain syndrome and a resultant personality disorder. Extensive medical testing, however, failed to show evidence of brain damage.

Based upon the proof, the jury a found the existence of two aggravating circumstances beyond a reasonable doubt. The jury found that (1) the defendant was previously convicted of one or more felonies which involved the use or threat of violence to the person, Tenn. Code Ann. § 39-2-203(i)(2) (1982), and (2) that the murder was committed while the defendant was engaged in committing a felony, Tenn. Code Ann. § 39-2-203(i)(7) (1982). In addition, the jury found that there were no mitigating circumstances sufficiently substantial to outweigh the two aggravating circumstances. As a result, the jury sentenced the defendant to death.

State v. Howell, 868 S.W.2d at 244-47.

TRIAL COUNSELS' TESTIMONY AT POST-CONVICTION HEARING

The petitioner was represented at his original trial by Assistant Public Defenders Edward G. Thompson and Robert Jones. Mr. Thompson had been associated with the Public Defender's Office since 1964 and, at the time of the trial in this case, was a member of the office's Capital Defense Team. Similarly, Mr. Jones had been with the Public Defender's Office for nineteen (19) years and with the Capital Defense Team for seventeen (17) years. Both had been involved in hundreds of capital cases.

Along with counsel, the petitioner was provided the investigative services of Ralph Naly, Mike Owens, and Christine Glenn. Mr. Naly, who had been assigned to the Capital Defense Team for seventeen (17) years, and Mike Owens were responsible for interviewing witnesses, investigating the facts, and gathering all possible evidence and information regarding the case. Ms. Glenn, who had a background in social work and who had been with the Capital Defense Team for nineteen (19) years, conducted a background check on the petitioner. This included interviewing family members and friends and obtaining medical and prior prison records.

Prior to the trial in this state, the petitioner had been convicted of first degree murder and sentenced to death in Oklahoma. Counsel in this case testified that they were in constant contact with the defense team from Oklahoma and, consequently, had access to all of their trial and investigative files. According to counsel, the attorneys from the Oklahoma case were very cooperative and helpful in counsel's preparation.

In the Oklahoma trial, the petitioner asserted an insanity defense and relied upon the testimony of Drs. Phillip J. Murphy and Jonathan Joseph Lipman. After reviewing the testimony and files from the experts and discussing with the Oklahoma attorneys their trial strategy, counsel in Memphis concluded there was not enough evidence for an insanity defense. Since the state's case was largely circumstantial, counsel decided instead that the best strategy was to rebut the evidence, challenge reasonable doubt, and present as much mitigation as possible.

Counsel utilized the testimony of Dr. Murphy during the sentencing phase of the trial, but did not call Dr. Lipman as a witness. Dr. Murphy, a clinical psychologist, evaluated the petitioner prior to the trial in Oklahoma and concluded that the petitioner suffered from organic brain disorder. On the other hand, Dr. Lipman, a neuropharmacologist, interpreted the petitioner's apparent mental condition in relation to his chronic drug and alcohol abuse. Counsel stated that they did not consider Dr. Lipman to be a credible witness. Counsel reviewed the transcript from the Oklahoma trial and concluded that Dr. Murphy's testimony was much more credible.

Mr. Jones testified that they decided to use the expert testimony for mitigation since diminished capacity was not a viable defense to the indicted charge of felony murder. Moreover, Mr. Jones further testified that, from his experience, there must be at least a tacit admission that the defendant committed the crime for an insanity defense to be successful. In this case, however, the petitioner was not willing to acknowledge anything remotely related to guilt.

Counsel testified that, based upon their experience, juries frequently discount mental defenses associated with drug and alcohol abuse. They believed the jury would more readily accept Dr. Murphy's opinion that several head injuries the petitioner suffered caused his mental disease or defect. Mr. Jones testified that juries are more receptive to involuntary disorders, e.g., those resulting from injuries, rather than voluntarily instigated problems, e.g., those associated with drug abuse. They chose this strategy despite the fact that Dr. Lipman opined in the Oklahoma trial that the petitioner was insane at the time of the offense. Counsel chose a different approach since the insanity defense had failed in Oklahoma.

Counsel was aware that the petitioner's co-defendant recanted her preliminary hearing testimony in Oklahoma regarding the circumstances of the crimes and the petitioner's involvement. Although they did not obtain the transcript of the recantation, counsel did attempt to elicit testimony about this during trial from the Oklahoma attorneys. The trial court, however, sustained the state's objection that the testimony was hearsay. On appeal, the Supreme Court determined that the trial court's exclusion of this testimony was harmless error.

TESTIMONY OF DR. MURPHY AT POST-CONVICTION HEARING

During the hearing on the petition, as well as during the sentencing phase of the trial, the petitioner introduced the testimony of Dr. Phillip J. Murphy, a clinical psychologist. The sum of the neuropsychological tests indicated that the petitioner suffered from some form of brain damage. The projective personality tests showed that the petitioner was not suffering from significant other psychiatric problems other than those related to long-term drug abuse. The petitioner's I.Q., 91 on the full scale, was not significantly below normal.

Dr. Murphy opined that there could have been a viable insanity offense. Dr. Murphy was unaware, however, that the petitioner told an acquaintance immediately after the murder in Memphis that he was going to kill any witnesses who were old enough to talk. Dr. Murphy admitted that this statement might affect his opinion regarding the petitioner's state of mind at the time of the offense. Dr. Murphy testified that the petitioner was competent to stand trial, understood what was happening to him, and was capable of making his own decisions during the trial. Dr. Murphy further testified that he was contacted by the Memphis attorneys solely for use in mitigation.

TESTIMONY OF DR. LIPMAN AT POST-CONVICTION HEARING

Dr. Jonathan Joseph Lipman also testified at the post-conviction hearing on behalf of the petitioner. As a neuropharmacologist, he specialized in the effects of drugs upon the brain. Dr. Lipman conducted a clinical interview of the petitioner about a year after the crimes but just two days before the Oklahoma trial. He testified in support of an insanity defense at the Oklahoma trial. Dr. Lipman was contacted by the Memphis attorneys, but was never actually called as a witness in the Tennessee case. He stated that counsel did not ask him any details about his evaluation or the insanity defense to which he testified in Oklahoma. Dr. Lipman opined the petitioner was insane at the time of the offense in Oklahoma. Dr. Lipman testified the petitioner's mental state was exacerbated by drug use.

Dr. Lipman testified at the post-conviction hearing that the petitioner told him that he believed he was a member of an underground organization that was at war with another underground organization, and he would kill members of the other organization if given the chance. The petitioner said that he kept seeing a red car pass by while he was confronting the victim in Oklahoma. He thought he was being targeted or set up, so he killed the victim. Dr. Lipman testified that this was irrational or delusional behavior, and the petitioner was suffering from a mental disease or defect. However, Dr. Lipman did not give these same facts during the Oklahoma trial. Instead, Dr. Lipman testified that the petitioner told him he was running drugs and killed the victim during a drug deal.

Like Dr. Murphy, Dr. Lipman was not aware that the petitioner stated he would kill any witnesses who were old enough to talk. Dr. Lipman stated this is significant but would have to be examined in the overall context.

INEFFECTIVE ASSISTANCE OF COUNSEL

After what appears to be an exhaustive review of the original trial record, as well as the post-conviction hearing, Honorable L. T. Lafferty filed an excellent written memorandum concluding that trial counsel were not ineffective in their representation of the petitioner. Our review of the post-conviction court's judgment is governed by several well-established principles. In order for the petitioner to be granted relief on grounds of ineffective counsel, he must establish that the advice given or the services rendered were not within the range of competence demanded of attorneys in criminal cases and that, but for counsels' deficient performance, the result of his trial would have likely been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

Furthermore, this Court may not second-guess the tactical and strategic choices made by trial counsel unless those choices were uninformed because of inadequate preparation. Goad v State, 938 S.W.2d 363, 369 (Tenn. 1996); Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Trial counsel may not be deemed ineffective merely because a different procedure or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276 (Tenn. Crim. App. 1980). The reviewing courts must indulge a strong presumption that the conduct of counsel falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 690.

The burden is on the petitioner to prove his allegations by a preponderance of the evidence. McGee v. State, 739 S.W.2d 789 (Tenn. Crim. App. 1987). The findings of fact made by the trial Judge are conclusive on this court unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354 (Tenn. Crim. App. 1995).

A. FAILURE TO UTILIZE INSANITY DEFENSE

First, the petitioner claims trial counsel failed to fully investigate the case. Specifically, the petitioner asserts that his trial attorneys were aware of the expert testimony regarding an insanity defense and neglected to discuss the matter with Drs. Murphy and Lipman.

The petitioner was tried and convicted of first degree murder in Oklahoma before the start of the proceedings in Tennessee. Trial counsel testified that they were provided with all of the investigative files and transcripts from the Oklahoma case. Counsel also stated that they consulted the lawyers in Oklahoma regarding their trial. Moreover, the investigators in Tennessee interviewed witnesses and compiled the personal and medical information on the petitioner. Counsel, who had extensive experience in capital cases, reviewed everything pertaining to this case and made a decision to challenge the state's case rather than assert an insanity defense.

Although both experts testified they could support an insanity defense, the decision as to whether their evaluations could satisfy the legal requirements for the defense and convince a jury rested in the sound discretion of the trial lawyers. Counsel believed, based upon experience, that a tacit acknowledgment of guilt is necessary for an insanity defense to work. In this case, the petitioner did not admit anything. Moreover, the experts were not aware that the petitioner stated shortly after the crime in Memphis that he was willing to kill any witnesses old enough to talk. In fact, they testified that this statement might have influenced their evaluations. These factors, in addition to the fact that the insanity defense did not work in the Oklahoma trial, led counsel to a different strategy. This decision was reasonable under the circumstances.

"'Trial counsel's strategy will vary even among the most skilled lawyers.'" Hellard v. State, 629 S.W.2d at 9 (quoting Robinson v. United States, 448 F.2d 1255, 1256 (8th Cir. 1971)). Counsel fully investigated the possibility of an insanity defense and made an independent, informed, and reasonable decision not to pursue it.

Since they did not believe there was a viable insanity defense, counsel decided expert testimony would be best used during mitigation. However, counsels' experience told them juries tend not to believe defenses associated with alcohol and drug abuse. Dr. Lipman relied upon the petitioner's own account, as well as that of his family, in ascertaining the petitioner's history of substance abuse. Counsel testified they were concerned that some of the witnesses may have been exaggerating the details and extent of the abuse. They felt the jury might have similar concerns. Counsel believed the jury would more readily associate the petitioner's actions with his organic brain damage and decided to call Dr. Murphy as a witness, but not Dr. Lipman.

"In making his [or her] decisions, the trial lawyer should be left free to act on his [or her] own judgment. [Counsel] has the feel of the twelve separate individuals who sit on the jury; [counsel] sees their reactions and strives to form an opinion as to what will impress them favorably and what will not. . . . For the most part, [counsel's] decisions are based on his [or her] assessment of human reactions, including those of the jury, the trial Judge, opposing counsel, and the various witnesses. Again, [counsel] retains at all times as [the] sole objective the convincing of the jury."

Hellard, 629 S.W.2d at 12 (citation omitted).

Furthermore, counsel testified that they were familiar with Dr. Lipman and did not consider him to be a credible witness. The post-conviction court observed that Dr. Lipman's explanation of the petitioner's actions seemed to vary from his testimony in the Oklahoma trial to his account in the hearing below. The evidence before us does not preponderate against the trial court's finding that counsel was well-prepared and acted reasonably and competently in the planning of trial strategy.

In addition, petitioner has failed to establish prejudice. More specifically, he has failed to establish a reasonable probability that the result of the trial would have been different if the insanity defense had been pursued. Goad v. State, 938 S.W.2d at 370. The defense failed in Oklahoma. There is no reason to think it would be successful in Tennessee.

This issue is without merit.

B. FAILURE TO INTRODUCE CO-DEFENDANT'S RECANTATION

Next, the petitioner claims that counsel was ineffective by failing to attempt to introduce the transcript of the co-defendant's recantation of her testimony at the preliminary hearing in Oklahoma. During trial, counsel sought to introduce proof from the Oklahoma attorneys that Watson said she had lied and placed the blame on the petitioner in order to escape the death penalty herself. The state objected to the proposed testimony and the trial Judge agreed, ruling that the evidence was inadmissible hearsay. Counsel did not seek to introduce the actual transcript.

On direct appeal, the Supreme Court held that the trial court erred in ruling that the evidence of the co-defendant's recantation was inadmissible. State v. Howell, 868 S.W.2d at 252. The Court stated that the testimony was proffered to impeach Watson's former testimony and, therefore, was not hearsay. However, the Supreme Court found that there was "ample [circumstantial evidence] to point the finger of guilt unerringly at the defendant alone." Id. at 254. Thus, the Supreme Court held that the trial court's error was harmless beyond a reasonable doubt. Id.

The petitioner contends counsel should have attempted to introduce the certified transcript because, according to the petitioner, the denial of the sworn testimony would not have been found to be harmless error.

In order to succeed on an ineffective assistance of counsel claim, the petitioner must not only show that counsel's performance was deficient, but must also demonstrate that prejudice resulted therefrom. Strickland v. Washington, 466 U.S. at 687; Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994). Even if counsel should have attempted to introduce the transcript into evidence, the petitioner cannot satisfy the prejudice prong of the test. The Supreme Court already considered the substance of this evidence and concluded that its exclusion would not have affected the outcome of the trial. The petitioner's suggestion that the form of the evidence would have produced a different ruling is without merit.

EXCLUSION OF MITIGATING EVIDENCE

During the sentencing phase of the trial, the petitioner again sought to introduce evidence that his co-defendant lied during the Oklahoma preliminary hearing in order to escape the death penalty. The petitioner argued that this went toward establishing the statutory mitigating circumstance that the petitioner's role in the crime was relatively minor. Tenn. Code Ann. § 39-2-203(j)(5) (1982). The trial court sustained the state's objection to this evidence on the grounds of relevance and hearsay, ruling that the recantation did not relate to mitigation, but instead was an attempt by the petitioner to re-litigate his innocence. On appeal, the Supreme Court held it was not error to exclude at the penalty phase the codefendant's statement that she lied when she identified the petitioner as the killer. State v. Howell, 868 S.W.2d at 256. The Court noted that the evidence overwhelmingly proved the petitioner was the person who killed the victim, and there was no proof in the record that the co-defendant pulled the trigger. Id. The Court found that the recantation was irrelevant to the mitigating circumstance, the petitioner's character and the circumstances of the crime. Id.

The petitioner argues that the Supreme Court's decision in State v. Teague, 897 S.W.2d 248 (Tenn. 1995), requires reversal of his sentence. The post-conviction court disagreed, stating that the issue regarding the admissibility of this evidence has been previously determined by the Supreme Court and that Teague is not applicable to the particular facts of this case.

In Teague, our Supreme Court reiterated:

Both the statute and prior case law dictate that the defendant has the right to present at the sentencing hearing, whether by the jury which heard the guilt phase or by a jury on resentencing, evidence relating to the circumstances of the crime or the aggravating or mitigating circumstances, including evidence which may mitigate his culpability. Evidence otherwise admissible under the pleadings and applicable rules of evidence, [sic] is not rendered inadmissible because it may show that the defendant did not kill the victim, so long as it is probative on the issue of the defendant's punishment.

897 S.W.2d at 256. As noted, the Court's holding did not create a new constitutional principle. Instead, the Court relied upon well-established case law, see e.g. State v. Jones, 789 S.W.2d 545, 551 (Tenn.), cert. denied, 498 U.S. 908, 111 S. Ct. 280, 112 L. Ed. 2d 234 (1990); State v. McKay, 680 S.W.2d 447, 451 (Tenn. 1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1412, 84 L. Ed. 2d 795 (1985), as well as the death penalty statute, in holding that a defendant may introduce evidence which may mitigate his culpability by showing that he actually did not kill the victim.

The trial court found that this issue had been previously determined. "A ground for relief is 'previously determined' if a Court of competent jurisdiction has ruled on the merits after a full and fair hearing." Tenn. Code Ann. § 40-30-112(a) (repealed 1995); see also House v. State, 911 S.W.2d 705, 710-11 (Tenn. 1995). We agree.

On direct appeal, the Supreme Court thoroughly reviewed the trial court's exclusion of the recantation at the penalty phase and found it to be proper. As mentioned above, the Court stated that there was more than enough evidence to show that the petitioner, not his co-defendant, actually killed the victim. See State v. Howell, 868 S.W.2d at 244-46. The principle acknowledged in Teague had been announced well before the Supreme Court issued its opinion in the direct appeal of this case. The Court still ruled that this evidence was not relevant to the nature and circumstances of the crime, the mitigating circumstance, nor defendant's character. Since the Supreme Court has already affirmed the trial court's ruling in this instance, this issue has been previously determined under Tenn. Code Ann. § 40-30-112(a)(repealed 1995).

Conclusion

The judgment of the trial court is AFFIRMED.

The petitioner's sentence of death by electrocution shall be carried out on March 16, 1998, unless otherwise stayed by an appropriate order.

JOE G. RILEY, JUDGE

CONCUR:

GARY R. WADE, JUDGE

DAVID G. HAYES, JUDGE