Cone v. Colson (925 F. Supp. 2d 927, 2013)

ORDER GRANTING RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND ORDER DENYING PETITIONER’S MOTION FOR RELIEF ON BRADY CLAIMS

JON P. MeCALLA, Chief Judge.

I. SUPREME COURT REMAND AND MANDATE 933

II. PROCEDURAL HISTORY 933

III. FACTUAL BACKGROUND 933

IV. CONE’S PETITION FOR HABEAS CORPUS — THE BRADY CLAIM 935

V. THE WITHHELD INFORMATION 935

VI.THE TRIAL FOR THE MURDERS OF CLEOPATRA AND SHIPLEY TODD — FRIDAY, APRIL 16, 1982, THROUGH FRIDAY, APRIL 23, 1982 937

A. The Guilt Phase — April 16,1982 through April 20,1982 938

1. Trial Day One: Friday, April 16,1982, 8:30 a.m. to 6:25 p.m. 938

a. Opening Statements 938

b. State’s Proof 939

(1) Aaron Hayes, Jr. Manager, Brodnax Jewelry 939

(2) Sue Schratz Employee, Brodnax Jewelry 941

(3) Songu Mize Customer, Brodnax Jewelry 942

(4) Richard “Randy” Mize Customer, Brodnax Jewelry 942

(5) C.M. “Mike” Stovall Memphis Police Department (“MPD”) Criminal Investigation Division 944

(6) Bert Allen MPD Motorcycle Squad Officer shooting victim ■ 946

(7) Barbara Benbrook neighborhood resident, eyewitness 948

(8) Deborah Stanford neighborhood resident, eyewitness 949

(9) John Douglas (“Doug”) Clark eyewitness, shooting victim 949

(10) Charles Slaughter neighborhood resident, eyewitness 951

(11) Debbie Howell Slaughter’s daughter, eyewitness 952

(12) Richard K. Wilson MPD Homicide Investigator 952

2. Trial Day Two: Saturday, April 17, 1982, 9:00 a.m. to 5:05 p.m. 952

a. State’s Proof, continued 952

(1) Richard K. Wilson, continued 952

(2) Hersehel Dalton neighborhood resident; victim, attempted-carjacking 953

(3) Lucille Tuech neighborhood resident; victim, attempted-home invasion 954

(4) Velora Hargett friend of Cleopatra Todd 955

(5) Gregory W. Moore Todds’ grandson 956

(6) Paul Adams Todds’ neighbor, called police to Todds’ house 956

(7) Mary Maguire Todds’ neighbor 957

(8) Steven R. Cole MPD Officer, first on scene at Todds’ house 957

(9) Marjorie Todd Moore daughter of Shipley Todd, stepdaughter of Cleopatra Todd 958

(10) Wayne A. Todd Todds’ grandson 959

(11) James Spencer Bell, M.D. Chief Deputy Shelby County Medical Examiner; Deputy Chief State of Tennessee Medical Examiner; expert in pathology 959

(12) Ruth Shreve victim, license plate theft 961

3. Trial Day Three: Monday, April 19, 1982, 10:45 a.m. to 6:45 p.m. 961

a. State’s Proof, continued 961

(1) Jimmy Hammers MPD Officer, Violent Crimes Bureau 961

(2) C.J. Harrell MPD Crime Scene Squad 965

(3) John Birdsong MPD Tactical Unit 965

(4) Thomas Dwight Smith MPD Officer 965

(5) Joe Sanders MPD Crime Scene Squad 966

(6) Paulette Sutton Employee, Univ. of Tenn. Toxicology Laboratory; Forensic Serology Expert 967

(7) R.L. Hannah MPD Crime Scene Squad 969

(8) Sgt. Ralph L. Roby MPD Violent Crimes Bureau 970

4. Trial Day Four: Tuesday, April 20, 1982, 10:50 a.m. t o 6:00 p.m. 974

a. State’s Proof, continued 974

(1) Merny Miller Keeper of Records, Illinois Bell 974

(2) Michael P. Malone FBI, Microscopic Analysis Unit (hair and fiber) 975

(3) Jerry McElrath MPD Latent Fingerprint Squad 976

(4) James L. Holder MPD latent fingerprint examiner; fingerprint identification expert 976

b. Defense Proof 976

(1) Valeree Cone Cone’s mother 976

(2) Dr. Matthew Jaremko expert in clinical psychology 978

5. Trial Day Five: Wednesday, April 21,1982,10:35 a.m. to 9:00 p.m. 978

a. Defense Proof, continued 978

(1) Jonathan J. Lipman, Ph.D. neuropharmacologist; expert on effects of drugs on the human body 978

b. State’s Rebuttal 981

(1) llene Blankman Cone’s friend, former drug-user 981

6. Trial Day Six: Thursday, April 22, 1982, 8:35 a.m. to 7:55 p.m. 982

a. State’s Rebuttal, continued 982

(1) Eugene Flynn FBI Agent 982

(2) Ralph L. Roby MPD 983

(3) Ben Bursten forensic psychiatrist, Midtown Mental Health Center 984

(4) John Robert Hutson clinical psychologist; clinical director, Midtown Mental Health Center 984

b. Guil1>-Phase Closing Arguments 985

c. Jury Instructions 992

7. Trial Day Seven: Friday, April 23, 1982, 8:40 a.m. to 4:15 p.m. 994

a. Jury Instructions, continued 994

b. Jury Verdict 994

B.The Penalty Phase — April 23,1982 995

1. Opening Arguments 995

2. State’s Proof 995

a. J.A. Blackwell Criminal Court Clerk for Shelby County 995

b. MPD Officers James L. Holder, C.M. Stovall, Bert Allen, and Jimmy Hammers 996

3. Defense Proof 996

4. Penalty-Phase Closing Arguments 996

5. Jury Instructions 996

6. Jury Verdict 996

VII. LEGAL ANALYSIS 997

A. The Brady Standard 997

B. Consideration of the Withheld Information 998

C. Cone’s Drug Use and Mental State 999

1. Roby, LETS teletypes, Sue Cone, and the MPD Supplemental Offense Report 1000

2. Eyewitness Evidence of Cone’s Demeanor 1003

a. Statements of Charles and Debbie Slaughter 1003

b. Statement of Robert McKinney; Stepherson’s Big Star Robbery 1006

c. Pompano Beach Police Department Supplement 1008

3. Flynn and the FBI Records 1009

4. llene Blankman 1011

5. Source of Money 1013

D. Cumulative Effect 1015

VIII. CONCLUSION 1019

APPENDIX OF EXHIBITS A-l

I. SUPREME COURT REMAND AND MANDATE

This cause is presently before the Court on remand from the United States Supreme Court to address Petitioner Gary Bradford Cone’s Brady claim in his habeas corpus petition. See Cone v. Bell, 556 U.S. 449, 476, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). (Electronic Case Filing (“ECF”) No. 221; see ECF No. 71 at 12-17.) The parties briefed the issue of the scope of the mandate. (ECF No. 234; ECF No. 235; ECF No. 239; ECF No. 240.) On June 3, 2010, the Court held “that the mandate is to determine whether there is a ‘reasonable probability’ that, had the evidence identified in paragraph 39 of Cone’s habeas petition been disclosed, ‘the result of the [sentencing] proceeding would have been different.’ ” (ECF No. 242 at 8.) See Cone v. Bell, No. 2:97-CV-2312-JPM, 2010 WL 2270191, at *4 (W.D.Tenn. June 3, 2010). The question for consideration, as articulated by Justice Stevens for the majority, is “whether the suppressed evidence might have persuaded one or more jurors that Cone’s drug addiction — especially if attributable to honorable service of his country in Vietnam — was sufficiently serious to justify a decision to imprison him for life rather than sentence him to death.” Cone, 556 U.S. at 475, 129 S.Ct. 1769.

II. PROCEDURAL HISTORY

The procedural background of Cone’s case prior to the Supreme Court’s remand is outlined in the Supreme Court’s opinion. See Cone, 556 U.S. at 457-64, 129 S.Ct. 1769. After the remand, a status conference was held on January 5, 2010. (ECF No. 228.) On January 28, 2010, Cone filed a notice of withheld exculpatory information. (ECF No. 230.) Respondent filed the state court record on January 28, 2010. (ECF No. 231; ECF No. 232; ECF No. 233.) On June 3, 2011, Respondent Roland Colson filed a Motion for Summary Judgment and supporting memorandum. (ECF No. 264; ECF No. 265.) Also on June 3, 2011, Cone filed a Motion for Relief on Brady Claims and supporting memorandum. (ECF No. 266; ECF No. 266-1.) On August 2, 2011, Cone filed his Response to Respondent’s Motion for Summary Judgment (ECF No. 268), and Respondent filed his Response to Cone’s Motion for Relief on Brady Claims (ECF No. 269). On September 2, 2011, Cone filed a Reply to further support his Motion for Relief. (ECF No. 271.)

On January 4, 2012, the Court ordered Respondent to supplement the state court record by manually filing the original trial exhibits and electronically filing an index clearly identifying each trial exhibit accompanied by a good quality digital photograph. (ECF No. 275 at 2.) On March 26, 28, and 29, 2012, Respondent filed the available original exhibits and corresponding digital photographs. (ECF No. 279; ECF No. 283-ECF No. 291.) Respondent filed a second supplemental notice of filing on September 19, 2012, with a copy of the trial court’s jury instructions. (ECF No. 319.)

III.FACTUAL BACKGROUND

The United States Court of Appeals for the Sixth Circuit summarized the relevant facts as follows:

The crime spree that culminated in Cone’s conviction and sentence to death began on August 9, 1980, when he robbed a jewelry store in Memphis, Tennessee, of approximately $112,000 worth of goods. The police were alerted and they promptly spotted Cone driving a car. A high speed chase ensued, following which Cone abandoned the car in a residential neighborhood, shot pursuing police officer B.C. Allen and citizen John Douglas Clark, and unsuccessfully tried to shoot a third citizen, Herschel Dalton when Dalton refused to surrender his car to Cone. Cone temporarily eluded the police, but they seized his car and in it found a large amount of cash, drugs, and the stolen jewelry.

The next day, Cone appeared in the same residential neighborhood at the home of Lucille Tuech. He drew a gun on Tuech when she refused to let him in to make a phone call. Later the same day, Cone broke into the home of an elderly couple, Shipley and Cleopatra Todd, who were 93 and 79 years old, respectively. Cone tried to convince the couple to help him, but when they refused to cooperate, he brutally killed them. Three days later, the Todds’ severely beaten and mutilated bodies were found in their home. Cone’s fingerprints and hair samples were also found in the home. In due course, Cone was arrested in Florida and returned to Tennessee.

Cone v. Bell, 243 F.3d 961, 965 (6th Cir. 2001), rev’d, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Cone was tried in the Shelby County Criminal Court and found guilty on two counts of first-degree murder and murder in the perpetration of a burglary; assault with intent to commit murder in the first degree for the attacks on Allen, Clark, and Dalton; and robbery with a deadly weapon for the jewelry store robbery. Id. at 965-66.

The Tennessee Supreme Court summarized the mitigating evidence presented at trial as follows:

Appellant was thirty-three years of age. He was an honor graduate of the University of Arkansas and shortly before the events in question here had been accepted for admission into law school, scoring in the ninety-sixth percentile on a law school admission test. He had served in the armed forces from 1966 through 1969,- and had one year’s service in Viet Nam as a supply sergeant. He had received a bronze star for his service there and had been honorably discharged from the army. He went to college after his discharge. In 1972, however, after graduating from college, he was convicted of three separate armed robberies in Oklahoma, these covering a period from December 1971 through May 1972. He had been imprisoned in Oklahoma until the latter part of 1979. He had then returned briefly to his home in Arkansas and had gone to Hawaii for a time. The vehicle which he was driving on August 9, 1980 had originally been registered in his name, but was registered in the name of his mother on that date.

Appellant offered the testimony of two witnesses in support of his defense of lack of mental competence. The first of these was Dr. Matthew Jaremko, a clinical psychologist at the University of Mississippi. He had interviewed appellant on two occasions for a total of about six hours, beginning in February 1982, less than two months prior to the trial. It was the opinion of Dr. Jaremko that appellant was suffering from post-traumatic stress disorder as a result of his experiences in Viet Nam, and that upon this was superimposed a serious drug-abuse disorder. Dr. Jonathan Lipman, a neuro-pharmacologist, testified that appellant, in his opinion, suffered from “chronic amphetamine psychosis” as a result of serious drug abuse. As previously stated, neither of these witnesses had ever known or treated appellant prior to the early part of 1982, and both of them based their testimony entirely upon what he told them as to the extent of his ingestion or injection of drugs. Not only was the weight of their testimony a question for the jury, but appellant’s known pattern of conduct immediately before and immediately after the events in question here raised serious doubts as to the accuracy of their opinions, because he did not appear to be seriously under the influence of or experiencing withdrawal from drugs according to the testimony of several witnesses who saw him during August 1980. In addition, as previously pointed out, the State offered two witnesses whose qualifications equalled or exceeded those of appellant’s experts, and neither of the State’s expert witnesses found any basis for an insanity defense.

State v. Cone, 665 S.W.2d 87, 91-92 (Tenn. 1984) (footnote omitted). Cone was sentenced to ten to twenty-five years imprisonment for the assaults, life imprisonment for the robbery, and death for the murder charges. Cone, 243 F.3d at 966.

IV. CONE’S PETITION FOR HABEAS CORPUS — THE BRADY CLAIM

On July 1, 1997, Cone filed a habeas petition challenging his convictions. (ECF No. 71.) In paragraph 39 of Cone’s habeas petition, he alleged a Brady claim:

the prosecution withheld exculpatory evidence, including evidence demonstrating, for example, that petitioner did in fact suffer drug problems and/or drug withdrawal or psychosis both at the time of the offense, and which also calls into question the veracity of the prosecution’s rebuttal witnesses. Such evidence was highly exculpatory to both the jury’s determination of petitioner’s guilt and its consideration of the proper sentence. There is a reasonable probability that, had the evidence not been withheld, the jurors would not have convicted petitioner and would not have sentenced him to death.

(Id. ¶ 39, at 12.) Cone alleged that documents in the district attorney’s (“DA”) and Federal Bureau of Investigation’s (“FBI”) files show that he was a drug user and on drugs at the time of the murders. (Id. ¶ 39(a)-(h), ECF No. 71-5 to -17.) He alleged that the DA and FBI files contained exculpatory evidence relevant to the veracity of rebuttal witness llene Blank-man. (ECF No. 71 ¶39®.) He also alleged that there was evidence that the money in his car, which the prosecution claims was from selling drugs, was related to the robbery of Stepherson’s Big Star. (Id. ¶ 39(j); ECF No. 266-1 at 16.)

V. THE WITHHELD INFORMATION

Cone filed the following documents as the withheld exculpatory evidence relevant to his Brady claim:

1. August 10, 1980, Law Enforcement Teletype System (“LETS”) teletype authorized by Memphis Police Sergeant R.L. Roby (“Roby”): “SUSPECT IS HEAVY DRUG USER, ARMED AND DANGEROUS.” (ECF No. 230-1);

2. August 11,1980, LETS teletype authorized by Sergeant Roby: “ARMED AND EXTREMELY DANGEROUS, DRUG USER.” (ECF No. 230-2);

3. August 11,1980, LETS teletype authorized by Sergeant Roby: “ARMED AND EXTREMELY DANGEROUS, DRUG USER.” (ECF No. 230-3);

4. Memphis Police Department Offense Report, statement of Charles and Debbie Slaughter: “They said he looked wild eyed and might not have been wearing shoes.” (ECF No. 230-4; ECF No. 274-1);

5. August 27, 1980, statement of Robert H. McKinney about August 8, 1980, robbery of Stepherson’s Big Star, including: “Q. The person you saw responsible for the robbery, did he appear to be drunk or high on anything? A: Well he did, he acted real weird that is the reason I watched him.” (ECF No. 230-5 at 1809);

6. August 23, 1980, telephone interview of Sue Cone conducted by Sergeant Roby regarding Gary Cone’s psychological and drug problems (ECF No. 230-6);

7. Pompano Beach Police Department Supplement describing Gary Cone: “Subject was observed to be looking about in a frenzied manner and also appeared to be looking for a place to run” and when officers approached “the subject was still walking in his agitated manner.” (ECF No. 230-7);

8. August 11, 1980, Memphis Police Department Supplementary Offense Report, written by J.L. Collier: James Daniels, Chief of Police of Lake Village, Arkansas, “did state he found out Cone was a heavy drug user, but had never been arrested in the Lake Village area.” (ECF No. 230-8).

9.August 12, 1980, FBI teletype: “SUBJECT BELIEVED HEAVY DRUG USER.” (ECF No. 230-9 at 526);

10. August 12, 1980, FBI Airtel: “ARMED AND EXTREMELY DANGEROUS; DRUG USER.” (ECF No. 230-10);

11. August 14, 1980, FBI teletype: “ARMED AND DANGEROUS. DRUG USER. ESCAPE RISK.” (ECF No. 230-11 at 530);

12. August 14, 1980, FBI Airtel: “ARMED AND DANGEROUS DRUG USER; ESCAPE RISK” (ECF No. 230-12);

13. August 16, 1980, FBI Airtel, Alice Jane Schmidt Pelley interview: “ARMED AND DANGEROUS. DRUG USER. ESCAPE RISK.” (ECF No. 230-13);

14. August 18, 1980, FBI Statistics Letter: “ARMED AND DANGEROUS; DRUG USER.” (ECF No. 230-14);

15. 5 separate copies of FBI photographs and description of Gary Cone: “ARMED AND DANGEROUS, DRUG USER, ESCAPE RISK ” (ECF No. 230-15);

16. August 13, 1980, 2:53 p.m., FBI teletype: “Drug User” (ECF No. 230-16);

17. August 15, 1980, 10:49 a.m., FBI teletype: “Drug User” (ECF No. 230-17);

18. FBI report, “Re[:] Memphis teletype”: “While in prison, Cone was caught in possession 750 amphetamine pills....” (ECF No. 230-18 at 549);

19. FBI report: “Subject believed heavy drug user.” (ECF No. 230-19 at 554);

20. February 9, 1982, cover letter from Joseph L. Patterson to llene Blankman: “Enclosed please find a copy of your statement, which you requested.” (ECF No. 230-20);

21. March 22, 1982, letter from Joseph L. Patterson to llene Blankman regarding compliance with trial subpoena (ECF No. 230-21);

22. FBI report of Special Agents Robert W. Kelly and Eugene Flynn regarding an event during trial at 9:45 p.m. on April 21, 1982, statement of “Gloria” to llene Blankman that she was a “turncoat” and “trying to burn” Cone. Blankman did not respond. (ECF No. 230-22 at 1946);

23. Copy of Jonathan Lipman’s report from the FBI file (ECF No. 230-23);

24. Handwritten notes of DA’s interview of llene Blankman, stating Cone “[n]ever used drugs around me.” (ECF No. 230-24 at 1942);

25. April 27, 1982, post-trial letter from Joseph Patterson and Don Strother to llene Blankman: “We certainly appreciate your cooperation.... ” (ECF No. 230-25);

26. Don Strother’s handwritten notes regarding indictment of Gary Cone for robbery of $1893.72 from Stepherson’s Big Star (ECF No. 230-26); and

27.September 11, 1980, letter from Insurance Company of North America to MPD informing of $2013.72 insurance payment to Stepherson’s Big Star for robbery loss. (ECF No. 230-27).

VI. THE TRIAL FOR THE MURDERS OF CLEOPATRA AND SHIPLEY TODD — FRIDAY, APRIL 16, 1982, THROUGH FRIDAY, APRIL 23, 1982

The State was represented by Assistant Attorney Generals Don Strother and Joseph L. Patterson. Cone (also known as Gerald Mason Harmon) was represented by John Dice and April Ferguson. The Honorable James C. Beasley was the presiding trial judge.

Voir dire was conducted on April 12-15, 1982, and the jury was sworn at 3:00 p.m. on April 15, 1982. (See ECF No. 231-4 at 3-18; ECF No. 231-10 at 852.) The trial began on Friday, April 16, 1982, at 8:30 a.m. (See ECF No. 231-10 at 940.) The day began with the reading of the indictments: Indictment No. 74702 charging “murder first degree ... during the perpetration of a burglary and murder first degree of Cleopatra Todd (see ECF No. 231-1 at 2-5); Indictment No. 74703 charging murder first degree during the perpetration of a burglary and murder first degree” of Shipley Todd (see id. at 2, 6-8); Indictment No. 74898 charging assault with intent to commit murder in the first degree on Herschel Dalton (see id. at 11-13); Indictment No. 74899 charging assault with intent to commit murder in the first degree on C.B. Allen (see id. at 11, 14-15); Indictment No. 74900 charging assault with intent to commit murder in the first degree on Douglas Clark (see id. at 11, 16-17); and Indictment No. 74902 charging robbery with a deadly weapon on the person of Aaron Hayes, Jr., for the robbery of the Brodnax Jewelry Store, located in Poplar Plaza in Memphis, Tennessee (see id. at 17, 18-19). (See ECF No. 231-10 at 942-43.) Cone pleaded not guilty by reason of insanity on all charges. (See id. at 943.)

The State presented thirty-five witnesses during the guilt phase of trial from April 16-20, 1982. (See ECF No. 231-4 at xviiii-vxx.) The defense case began on April 20, 1982, and included the presentation of three witnesses. (See id. at xxv-xxvii.) From April 21 to 22, 1982, the State presented five rebuttal witnesses. (See id. at xxvii-ixxx.) Final arguments were heard in the guilt phase on April 22, 1982. (See id. at ixxx.) On April 23, 1982, at 8:50 a.m., the jury retired for deliberations, and less than two hours later at 10:32 a.m., the jury advised that they had reached a verdict. (See id. at xxx; see also ECF No. 232-8 at 2101-03.)

The sentencing phase began after the guilty verdict on April 23, 1982, with both sides making opening statements. (See ECF No. 232-9 at kk, 2112-19.) The State presented five witnesses. (See id. at kk.) Cone’s attorneys presented no evidence at the sentencing phase of trial and relied on mitigating circumstances presented in the guilt phase. (See id. at 2115-19, 2144.) The jury retired for deliberations at 3:05 p.m., and forty-five minutes later at 3:50 p.m., advised the court that a sentencing verdict had been reached. (See ECF No. 231-4 at xxxii; ECF No. 232-9 at 2150.)

A. The Guilt Phase — April 16, 1982, through April 20, 1982

1. Trial Day One: Friday, April 16, 1982, 8:30 a.m. to 6:25 p.m.

a. Opening Statements

The first day of trial began at 8:30 a.m. on Friday, April 16, 1982. (See ECF No. 231-10 at 940.) Strother presented the State’s opening statement in which he outlined a series of events occurring slightly after noon on August 9, 1980, and continuing until August 10, 1980, including: the robbery of the Brodnax Jewelry Store, the police chase, the shooting of police officer Bert Allen, the shooting of bystander Doug Clark, the assault on Herschel Dalton, the encounter with Lucille Tuech at her apartment door, and the murders of Cleopatra and Shipley Todd. (See id. at 944-50.)

In Cone’s defense, Dice presented the opening statement and outlined the evidence he would present about Cone’s background including the fact that he came from a military family, served in Vietnam, graduated with high honors from the University of Arkansas, and that he was a “changed person,” “a junkie, a drug addict” when he returned from Vietnam. (Id. at 950-53, 958-60.) Dice asserted that Cone “suffers from a disease known as amphetamine psychosis” and that he was “a drug addict and a junkie of such unbelievable proportions that it would have been impossible for him to form any intent, much less the cool and clear and deliberated [intent] that he is charged with in the commissions of these crimes.” (Id. at 957.) Dice asserted that Cone suffered from “a syndrome called Vietnam Veterans Syndrome.” (Id. at 957-58.) Dice posed the question: “Is Mr. Gary Bradford Cone a person who was capable of forming the intent called for in the commissions of the crimes with which he is charged!?]” (Id. at 960-61.)

Dice acknowledged that some of the prosecutor’s facts were “true and correct”: “My client, Gary Cone, entered a store known as Brodnax in Poplar Plaza. My client robbed that store. My client was pursued by an officer in an unmarked police car. At that point, certainly an exchange of gunfire took place between Officer Allen and between my client.” (Id. at 961.) Dice acknowledged that “gunfire was exchanged” in Cone’s encounter with Clark. (Id) Dice stated that the next morning Cone, after hiding all night in a burned-out house, left the house looking for water and had a “confrontation with [a] lady.” (Id. at 962.) Dice stated that Cone returned to the burned-out house, and the Memphis Police Department (“MPD”) “tear-gassed that house in an attempt to arrest” Cone. (Id.)

Dice acknowledged that,

On August 10, 1980, in the late afternoon hours, Gary Cone went to the home of the Todds. No question about that.... [W]hen he got inside he and Mrs. Todd and Mr. Todd got into a confrontation, and blows were exchanged. Okay. I don’t know the exact nature of everything that happened in that home. If I did, I’ll tell you about it.

But I admit to you that my client, Gary Cone, killed the Todds. I deny to you, under our law, that he murdered them.

(Id. at 963.)

Dice posed the question of whether Cone was “the clever criminal” that Strother had described or “whether a person [like Cone] with a known record” would have left a “clear trail” by leaving fingerprints .and calling his sister from the Todds’ home. (Id. at 964.) Dice stated, “Again, I must respectfully say to you that we admit that we killed the Todds. We deny, under our law, that we murdered them. That’s the position of the Defense.” (Id.) Dice argued that Cone “had to be out of his mind to have done the things he did.” (Id. at 965.) Dice posed the question, “whether deterrence, whether capital punishment stops the action of the man with one drink too many, much less the junkie, much less the aleoholic[?]” (Id. at 966.) He finished his opening statement by asking the jury “to look at the whole man in this case, and all of the proof.” (Id.)

b. State’s Proof

(1) Testimony of Aaron Hayes, Jr.

The State began its proof on the first day of trial, April 16, 1982, with the testimony of Aaron Hayes, Jr., the manager of the Brodnax Jewelry Store. (See ECF No. 231-11 at u, 973.) Hayes testified that he was working at approximately 12:45 p.m. on Saturday, August 9, 1980. (See id. at 973-74.) Hayes testified about what happened:

A. A gentleman walked in, walked around the store briefly. We approached him, as is our policy, immediately. He said he was just looking. He looked for just a minute, went around to the diamond counter, and I approached him again, and he started discussing rings, so — He wanted to look at a particular—

Q. What type of ring did he want to look at?

A. A marquise engagement ring.

Q. Any particular size?

A. He wanted about a carat. And, at the time, I didn’t have anything of that size in the store. I had something a little smaller which I told him I’d show him, or I could get him the size that he wanted. And he said that he would look at the one that I had. And as he looked at it — He couldn’t see it because he had on dark glasses, so—

Q. Was there a conversation about that?

A. Yes, he said he needed to go out and change his glasses in his car.

Q. Did he re-appear?

A. Yes.

Q. What happened after that?

A. He looked at the diamonds. He liked, supposedly, the diamond that I had. He even discussed remounting the diamond and, frankly seemed to show quite a bit of knowledge of diamonds just by his conversation. And he said that there was something else that he wanted to see in the store.

Q. Did he tell you what he wanted to see?

A. Yes, he wanted to see a watch. And we walked around the counter — He walked around the counter, I just had to turn around — and he pointed at a particular watch, which was a very expensive watch, it was around $8,000.00. And at that point ... he pulled a gun from his waist.

Q. Did he say anything when he pulled the gun?

A. He told me not to make — set off any alarms, in essence and to back up. And I assumed that he thought I had an alarm under the counter. And he also wanted the watches.

{Id. at 974-76.) Hayes gave Cone the watches, and he put them in his jacket pocket. {See id. at 976.) Hayes continued,

He said he wanted the ring that he’d looked at, so we went back around the counter and I gave him that ring, and he said he wanted the rest of them, so — It’s just a policy that we have. We do not take merchandise out. So — It’s very offensive to us to take a lot of merchandise out at one time. But, anyway, I just took one at a time, and he kept telling me to hurry up. And then — [o]ur rings are kept on these ring bars, so you can take several out at a time, and then he insisted that I take out the ring bars so he could help me. And he just put those in his pocket, also.

Basically, after he got what he wanted, he left the store.

{Id.) Hayes recalled Cone saying “something to the effect that it was either nice shopping on Saturday, or nice shopping at Brodnax on Saturday.” {Id. at 989.)

Hayes followed Cone and saw him get into an older, faded, gray/green color, Oldsmobile Cutlass and drive off towards Highland Avenue and Walnut Grove. {See id. at 977-78.) Cone had parked about half a city block away from the store, in a manner so he could just pull out. {See id. at 978, 988.) Hayes enlisted two men coming from the nearby David’s Home Fashions store to follow Cone’s car. {See id. at 977-78.) They proceeded down Highland toward Summer Avenue, but they did not see the car. {See id. at 978.)

Before Hayes left the store, he alerted the store personnel to call the police, and, when he returned to the store, Hayes gave the police a description of the car. {See id.) He described the robber as

about — I would say about 5'7", slight build, probably 140 pounds, and had sort of brownish hair, a little — it wasn’t extremely long, but it wasn’t short either, sort of mod length, I guess. Had sort of a beard.... He had on a mismatched sort of greenish colored — I’ll say outfit, the jacket didn’t match the pants exactly. And for some reason I remembered that he had on new shoes, new black shoes, which didn’t look like they went with the suit, or whatever, that he had on.

(Id. at 979.) Hayes noticed that the robber had a bandage on one of his fingers. (See id.)

Patterson presented Hayes with three pictures — one of the outside of the Brodnax store and two of the inside of the store. (See id. at 979-80.) Hayes identified the pictures as true and accurate pictures of the store as it appeared on August 8, 1980, and the three pictures were introduced collectively and entered as State’s Exhibit 1 (ECF No. 284-1 to -2). (See ECF No. 231-11 at 979-80.)

Patterson presented Hayes with a picture of an automobile, and Hayes testified that the automobile was similar to the one that he saw the day of the robbery. (See id. at 980-81.) The picture was entered into evidence as State’s Exhibit 2 (ECF No. 284-3). (See ECF No. 231-11 at 981.)

Patterson presented Hayes with three sheets of photographs of watches and rings. (See id. at 982.) Hayes testified that the photographs were of the stolen merchandise and that all the merchandise was returned to the store. (See id.) These three sheets were entered as State’s Exhibit 3 (ECF No. 284-4 to -6). (See ECF No. 231-11 at 982-83.) The total value of the jewelry taken in the robbery was around $112,000. (See id. at 984.)

After the incident, Hayes went to the police station and identified a photograph as someone who “[ljooks similar” to the person who robbed the store. (See id. at 985.) He made a notation on the photograph. (See id.) The beard of the person in the picture looked much heavier than the robber’s beard, and the robber’s hair was a bit thinner. (See id. at 985-86.) The photocopied photographs that Hayes viewed and identified on the day of the robbery were entered as State’s Exhibit 4 (ECF No. 284-7 to -9). (See ECF No. 231-11' at 986.) Hayes also viewed a group of eight photographs, identified one of the photographs as the robber, and marked the back of that photograph. (Id. at 986-88.) Those photographs were entered as State’s Exhibit 5 (ECF No. 284-10 to -13). (See ECF No. 231-11 at 987.) Hayes identified the pants and jacket that the robber wore, and the items were entered into evidence as State’s Exhibit 6 (ECF No. 284-14 to -15). (See ECF No. 231-11 at 990.) He identified the pair of shoes that the robber wore, and they were entered into evidence as State’s Exhibit 7 (ECF No. 284-16 to -17). (See ECF No. 231-11 at 990-91.)

On cross-examination, Dice asked Hayes, “is it fair for me to say that at one time you made a statement that the person, whoever he was, who robbed you was sweating quite a bit” to which Hayes responded, ‘Tes, sir.” (Id. at 995.) On redirect examination, Hayes testified that it was very hot on the day of the robbery. (See id.)

(2) Testimony of Sue Schratz

The second witness called on the first day of trial was Sue Schratz, a Brodnax employee who was working on the day of the robbery. (See id. at 996-97.) She was waiting on two customers when she noticed her manager Aaron (“Ronnie”) Hayes “started showing rings and he was throwing them out on the counter.... He was throwing them out, one at a time, until ... the person told him to put the tray out and lay them on the counter.” (Id. at 997-98.) She stated that one does not show diamond rings that way. (See id. at 997.) The robber “sat down in front of the diamond case” and was putting the rings in his pocket. (Id. at 998.) She described his clothing as “an olive green coat” with a stripe and “solid — kind of khaki colored— not khaki, but that olive drab, slacks.” (Id.) Schratz said he was “short and wirey — around 5'4", 5'5"” with hair that was “rather long and kind of unkept, and maybe light brown, or brown. And stringy.” (Id. at 998-99.) He had “two week’s growth of beard started.” (Id. at 999.) Schratz identified the Defendant as the robber. (See id. at 999-1001, 1003.) She identified the striped coat in State’s Exhibit 6 (ECF No. 284-15) as the coat that the robber wore and stated that “it was awfully hot looking at that day to be dressed like that.” (ECF No. 231-11 at 1004.) The defense did not cross-examine Schratz. (See id.)

(3) Testimony of Songu Mize

The State’s third witness was Songu Mize, a customer at Brodnax during the robbery. (See id. at 1005-06.) Songu Mize and her husband went to Brodnax on August 9, 1980, around noon to pick up their wedding bands. (See id. at 1006.) She described the events as follows:

We walked in — When we walked in, there were not any other customers, I believe, and we were trying out rings and — in a few minutes afterwards, I saw another customer, to my right, talking to the store manager, and he was looking at the diamond rings, and the conversation seemed to be interesting, so I turned around and looked at the person, and after a few minutes I saw the same person asking the store manager to take the trays-ring trays, to put them on top of the counter, and he was grabbing them by the handful and putting them in his pocket. And then he told me not to leave the store....

He said, “Don’t leave the store just right now, just hang around a little bit.” (Id. at 1006-07.) Songu Mize testified, “He was talking softly, though, quietly, but I could hear him because he was right next to me.” (Id. at 1007.) After he told her not to leave,

I guess, under the stress, I decided to leave, and walked toward the west — east entrance of the store where our car was parked, and I came to the door, opened the door, and I wanted to get my husband out of there so I asked him to walk out, too. He ignored me. And I decided to go and sit in the car, and I went to the car and sat in the car where I could see the store, and a few minutes after I went out, [the robber] walked out, walking fast[.]

... At that time I saw him putting a gun in his back pocket. I saw the handle of the gun.

(Id. at 1007-08.)

Songu Mize described the robber: “He was a young person, 30, 35 probably. Not too tall. Not heavy at all, slim, probably, ... [h]ad a beard, a mustache. Was wearing gray/green suit, or jacket and pants, and plaid shirt. He had sandy brown hair.” (Id. at 1007.) She testified that State’s Exhibit 6 (ECF No. 284-15) looked like the suit that the robber was wearing and that he had a bandage on one of his fingers. (See ECF No. 231-11 at 1008-09.) At trial, Songu Mize stood in front of Cone and stated that he looked like the robber, but “he’s a lot heavier.” (Id. at 1009-11.) The defense did not cross-examine Songu Mize. (See id. at 1013.)

(4) Testimony of Richard (“Randy”) Mize

The State’s fourth witness was Richard (“Randy”) Mize, Songu Mize’s husband and a customer at Brodnax during the robbery. (See id. at 1013-14.) Richard Mize testified,

Yes, as I’m sure you all know, the store was robbed. And we were at the counter, fitting the band, and checking out whether they fit the ring — our fingers properly, and we all of a sudden noticed that a robber was collecting, first, Rolex watches, and then diamond rings. And the clerk was scooping up the rings, and the robber was then pocketing them.

My wife, at that point, decided to leave the store and — then turned around and signaled for me to come out, as well, and — I backed away from the counter, because that seemed to make the robber somewhat nervous, and said to him, “Don’t worry, we’re not going to do anything.” And, at that point, the robber said, “Don’t worry, I’m not about to panic.” And shortly thereafter he — I think picked up a few more rings, and then rapidly left the store.

(Id. at 1014.)

Richard Mize was standing three or four feet away on the same side of the counter when he first noticed the robber, and “as the events were transpiring, [the robber] went around to the other side of the counter.” (Id. at 1015.) Richard Mize testified that the robber was

relatively short ... in the neighborhood of 5'8", 5'9". He was also quite — he seemed quite thin. I would guess in the neighborhood of 140, 150 pounds in weight. I recollect him having relatively sandy hair. And I think the two most prominent things that we noticed, were that he had a rather scraggly beard — it wasn’t a full grown beard, it was rather scraggly. He had an overall appearance of being rather mussed, and, finally, he was sweating profusely. I remember— Both my wife and I commented on that, because it seemed, you know, quite striking.

(Id.) Richard Mize testified that it was August in Memphis and “very hot.” (Id. at 1015-16.) Richard Mize could not make a positive identification in the courtroom. (See id. at 1017.)

Richard Mize testified about the robber’s clothing:

He was dressed in — To begin with, his clothes also looked mussed, to us, as though they were wrinkled and crumpled up. And I believe he had on sort of wash pants, that were of a greenish color, and a sport coat I also remember being of a greenish color.

(Id. at 1016.) Mize identified the clothes in State’s Exhibit 6 (ECF No. 284-15) as the robber’s clothing. (See ECF No. 231-11 at 1016.)

Mize saw the robber’s gun while they were in the store. (See id.)

As we went around — or as he went around the counter, so that he was facing us, at the point my wife left the store, he flashed a gun. And by that I mean — if I can show you. He had it sort of back like this [indicating back waist band of trousers], and brought it out, and sort of showed it to us, keeping the barrel pointed towards the floor, but nevertheless so that we were aware of the fact that he was armed.

(Id. at 1016-17.)

On cross-examination, Dice asked Richard Mize if he made the statement, “It’s hot as blazes in Memphis in August.” (Id. at 1018.) Mize responded that he said something like that. (See id. at 1019.) Dice verified that Mize had stated that the robber was sweating profusely. (See id.) Dice addressed whether Richard and Songu Mize were together when the robber showed his weapon. (See id. at 1020.) Richard Mize testified that he did not believe that his wife saw the weapon until after she had left the store. (See id.)

(5) Testimony of C.M. (“Mike”) Stovall After a lunch recess on the first day, the fifth witness, C.M. (“Mike”) Stovall with the MPD’s Criminal Investigation Division, South Precinct, was called to testify. (See id. at 1027-28.) On August 9, 1980, around 1:00 p.m., Stovall heard a broadcast concerning the armed robbery of the Brodnax Jewelry Store. (See id. at 1028.) The broadcast described a “greyish/green Oldsmobile, with a male white responsible.” (Id. at 1029.) The individual was “dressed in a green suit, had a beard and glasses.” (Id.) Stovall heard the broadcast and headed east toward the store in his Chevelle unmarked cruiser. (See id. at 1028-29,1031.)

I was headed — past Parkway, above the viaduct, when I noticed a group of cars coming up the viaduct — up the little hill there, and I looked over and I saw this grey Oldsmobile driving at a normal rate of speed, along with two or three other cars, and a male white with a beard. So I stopped right there on top, and there was no way to turn around except for a U-turn. I waited until he got by me, down the other side, and I made a U-turn, fell in behind him. I caught up with him about Union and Cooper, where he was stopped at a red light, and at this time I advised the dispatcher I was behind a possible robbery suspect, and gave the license number — which was Arkansas plates at that time. I told them we were eastbound — we were westbound on Union at an average rate of speed, about 35-40 miles an hour. And I followed him all the way down Union to past McLean, past Idlewild, to Auburndale, right there at Dunkin’ Donuts. He first stopped right at the stop light at the McLean and Union — we were still going at a normal rate of speed, and he turned — turned right on Auburndale off of Union, headed north towards Madison, and he was still going 35^0 miles an hour. I was trying to hang back a little bit to keep him from noticing me. I got — He got almost to Madison, and that’s when he gunned the car and sped out in front of traffic on Madison. And then I advised the dispatcher that we were at this time in chase....

Well, he sped off in front of traffic right there at Madison, and I knew then that it had to be the robbery suspect. And so I followed behind him. He went one block — he went down Madison, headed east, one block, and took a left on Idlewild, which I was familiar with the area, it deadends, so I figured, well, I’ve got him right here. He goes down Idlewild about halfway, notices it’s a deadend, he turns in the parking lot— This ear I’m in is not as fast as the Oldsmobile he was driving. Of course, I couldn’t keep up with him. He made a U-turn in a parking lot, which used to be a High Rollers Lounge there, and coming back out on the street he tried to hit the cruiser, at that time which I was in, and I had to gun it out of his way. He come back out on Idlewild headed toward Madison again, took a right on Madison which is headed westbound, to one more block, and then he took a right on Auburndale headed northbound towards Poplar.

At this time, by the time I got turned around and got back out on the street to Auburndale and Madison, it’s a pretty long stretch there, and he was almost to the end of the street. He had to be going speeds of 80-85 miles an hour through those streets right there. I caught up with him at — I got to the intersection of Auburndale and Poplar, and I caught the tail end of his car one block further down, which is eastbound, to Hawthorne Street. He had gone in front of traffic and gone in that street, and by the time I could get down there — Poplar was kind of busy. I got to the street — I saw a cloud of dust behind a black van, which he had gone behind, in a hedge of bushes. I saw the dust and I figured he had gone behind the van, and stopped. So I stopped the cruiser out in the street and got out of the car and pulled my weapon. He come around in front of the van — over the bushes, about — about this high, right here to his chest [demonstrating], and at this time he put his hand up, and I couldn’t tell whether he had a gun or not. There was a person standing right behind him. I could not shoot, fear that I might hit the other person. I told him to drop the gun right there, halt. He jumped back around the van and got in his car and took off at a high rate of speed across the front yards. He jumped the curb and went back out in the street, headed northbound on Hawthorne.

I jumped back in the cruiser, and started after him again. And, of course, his car was a lot faster than the one I was in. As I got back in the car and was headed northbound on Hawthorn[e], I looked in the rear view mirror and I saw a motorcycle officer behind me. I got to the first street, which is — I believe it’s Lawrence, and — He took a left, headed back westbound. By the time I got to the intersection I had lost sight completely. But the street was kind of a long stretch so I figured he had to turn off somewhere. The first street I come to, which was Auburndale, it was left, the only way you could go, I took that, and was going up Auburndale Street at a pretty good rate of speed. And I caught him out of the side of my eye getting out of the Oldsmobile. He’d gone up Lawrence and taken the first street, left, which is Auburndale, and had taken the first drive left, up into a house behind a hedge of bushes. As I was driving by I caught him out of the corner of my eye getting out of the car.

I went on past and slammed on the brakes. At that time the motorcycle officer, which was a pretty good distance behind me, saw me stop, and he stopped right behind the car. And the Defendant jumped out of the car and run between the garage and jumped a fence. And the motorcycle officer was right behind him. When I got out of the car I heard a lot of gunshots, and I got to the driveway and I saw the Defendant’s head go by the fence. That’s when I jumped up on the fence, with a gun, to pull the trigger on him when he rounded the corner on me.

{Id. at 1029-34.) Stovall heard gunshots when he jumped out of his car and was running toward Cone’s car; he was behind a garage at the time. {See id. at 1035.) Stovall lost his radio at some point during the chase and went back to the motorcycle and radioed for help. {See id. at 1036.) He stayed by the suspect’s car to protect the scene. {See id. at 1042.) The motorcycle officers were in the area, and the helicopter was above. {See id.) Stovall never fired his weapon. {See id. at 1043.)

Stovall identified the route that was taken during the chase on a large aerial map, which was also enlarged on a screen in the court room. {See id. at 1036-42.) The map was entered into evidence as State’s Exhibit 8 (ECF No. 284-18 to -19). {See ECF No. 231-11 at 1037.) Stovall identified a photograph of the suspect’s vehicle where it was left in a driveway. {See id. at 1043.) The photograph was entered into evidence as State’s Exhibit 9 (ECF No. 284-20). {See ECF No. 231-11 at 1043.)

. Stovall described the suspect as “a male white, he had glasses on, he had a full reddish beard — dark brown reddish beard.” {Id. at 1044.) He identified Cone as the suspect that he chased. {See id.)

On cross-examination, Dice clarified that the motorcycle officer that Stovall spoke of was Bert Allen. (See id. at 1047.) Allen was about thirty feet away from the suspect at the time. (See id. at 1051.) Dice pointed out that in the offense report, Stovall stated, “[a]t this time I yelled for the officer to shoot [the] suspect.” (Id.) Dice then quoted the offense report asking if it was correct that Stovall “heard approximately six shots as I was running toward the fence.” (Id. at 1051-52.) Stovall replied that the report was correct. (Id. at 1052.)

(6) Testimony of Bert Allen

The State’s sixth witness was MPD Motorcycle Squad Officer Bert Allen. (See id. at 1053.) On August 9, 1980, between 1:00 and 1:30 p.m., Allen heard a broadcast concerning a chase in. midtown Memphis, (See id. at 1053-54.) Allen intercepted the chase which was proceeding in his direction down Poplar Avenue. (See id. at 1054.) At Poplar and either Aubumdale or Hawthorne, Allen saw an unmarked police cruiser against the curb. (See id.) He saw a light green Oldsmobile that fit the description of the vehicle being pursued. (See id.) Allen joined in the pursuit which at that time was proceeding at speeds around fifty miles an hour. (See id. at 1054-55.)

When Allen made the last turn, he could not see the Oldsmobile, only the tail lights, and the police cruiser. (See id. at 1055.) He saw the cruiser’s brake lights, and he began to slow down and look for the Oldsmobile. (See id.) Allen passed a driveway and saw movement on his left. (See id.) The Oldsmobile was sitting there, and a “male white” was getting out. (See id.) Allen put down the kickstand on his bike and jumped off to chase the suspect on foot. (See id.) Allen described the foot pursuit as follows:

The suspect was going eastbound straight down the driveway towards a redwood fence, at the rear of the residence at that location. I was directly behind him, following him straight down the same side of the car, down the driver’s side he had gotten out, I was probably 50 or 60 feet behind him.

... He went over this fence[] and turned to the right, and I lost sight of him for about two or three seconds, maybe. As I went over the fence, I also proceeded to the right, the direction he had gone. And at that point there was only one direction that he could go because of the way the fence, and another garage was — was around to the left.

At this time I continued on around the garage, and when I got to the corner of the garage was the next time I actually laid eyes on him. Just as I got right at the edge I looked to the left and I observed the same male white that I had seen get out of the automobile, standing there with his arm raised up and a pistol in his hand. And about that time, the gun went off, and he shot me in the left hip.

... At the time he was firing the gun, I tried to dive and get out of the way, and I guess my dive took me, more or less, in a southeasterly direction from the corner — the dive and my momentum, and I fired one shot while I was in midair in his general direction. I don’t know where the bullet landed. And when I hit the ground I kind of rolled, I knew I’d been shot, and he ran back to the same corner of this garage, ... where we had come from. -And he stopped and turned around, and again raised the pistol, at which time I was laying on the ground and had my gun just kind of back behind me, and I began to fire at him and he fired at me — either three or four times. I think it was four shots, and the dirt kicked up in front of me a couple of times, and — I fired the rest of my bullets, five more shots, and he turned and ran when I ran out of bullets.

(Id at 1056-57.) Allen testified that “the only thing that would keep [the suspect] in this small enclosed area there between two garages would be a short picket fence, maybe two and a half feet tall.” (Id at 1058.) Allen said the fence would have been easy to step over, but the suspect, was “just standing there, appeared to be waiting on me.” (Id)

Allen saw the suspect when he was running southbound on either Hawthorne or Idlewild. (See id. at 1064.) That is when Allen heard another single gun shot. (See id.) At this time, Allen was hurting, but he chased the suspect as far as he could. (See id.) Other officers were arriving on the scene, and Allen “just sat down and finally got into the back seat of one of the squad cars” and was transported to the hospital. (Id) Allen was shot in the left hip. (See id.) The bullet ricocheted off his pelvic bone and exited from his left buttock. (See id.)

Allen drew a rough diagram of the car, fences and garage, where the shots were fired, and where he was shot. (See id. at 1058-63.) The diagram was entered as State’s Exhibit 12 (ECF No. 284-24) for demonstrative purposes. (See ECF No. 231-11 at 1070.) Allen also pointed out where the suspect exited his car and ran down the driveway, past a few garbage cans by the garage. (See id. at 1059-60.) Five of Allen’s bullets went into the garage. (See id. at 1062, 1074.)

Allen testified that State’s Exhibit 9 (ECF No. 284-20) was a photograph of the automobile that the suspect was driving which was parked in the driveway where Allen began the foot pursuit. (See ECF No. 231-11 at 1064-65.) His motorcycle was in the background of the photograph. (See id. at 1065)

Allen identified a photograph of the area where the shots were fired including a picture of a picket fence; the photograph was entered into evidence as State’s Exhibit 10 (ECF No. 284-21). (See ECF No. 231-11 at 1065, 1071.) Allen marked the location where he was shot as “O” and the suspect’s location at that time as “S.” (See id. at 1066.)

Allen described the suspect as “a male white, with more or less shoulder length hair.” (Id.) He was wearing a plaid shirt and “looked like he hadn’t shaved in a while.” (Id.) Allen testified that he had previously seen the photographs in State’s Exhibit 5 and picked out a photograph of the suspect. (See id. at 1067.) Allen identified the photograph, initialed it, dated it, and put the time on it. (See id.)

Allen identified a pair of trousers that he was wearing at the time he was shot and the bullet’s entrance and exit holes. (See id. at 1067-71.) The trousers were entered into evidence as State’s Exhibit 11 (ECF No. 284-22 to -23). (See ECF No. 231-11 at 1070.)

On cross-examination, Dice pointed out that Allen was “basically” a traffic enforcement officer. (See id. at 1073.) Dice verified that Allen made a statement that he saw “a male white come staggering out of the driveway where the suspect had run, holding his stomach.” (Id. at 1074.) The statement continued, “He fell in the grass beside the driveway as if he was shot. I did not hear the gunshot.” (Id.) Allen carried a Smith & Wesson .38 with a four-inch barrel, which held six bullets. (See id.) He fired six bullets that day; five shots went into the garage. (See id.) He stated that Stovall was yelling something to him that day, but Allen did not “have any idea what [Stovall] was yelling.” (Id. at 1075-76.) Allen did not have his weapon out when he first got off the motorcycle; he did not pull it out until he was running down the driveway. (See id. at 1076.)

Allen testified that the MPD had a policy that an officer could use deadly force on a fleeing felon. (See id.) He testified that he took his gun from the holster to use it “[i]f need be.” (Id.) Allen testified that the fence in State’s Exhibit 10 (EOF No. 284-21) played no role in the shooting incident. (See ECF No. 231-11 at 1078-80.) He stated that a continuation of the fence in the picture was the fence that he and the suspect went over. (See id. at 1080)

(7) Testimony of Barbara Benbrook

The State’s seventh witness, Barbara Benbrook, lived at 230 Hawthorne, Apartment 4, approximately six houses north of Poplar Avenue in August, 1980. (See id. at 1083.) The address is on Hawthorne, between Poplar and Lawrence. (See id. at 1084.) Auburndale is the next street to the west. (See id.) On August 9, 1980, between 1 and 2 p.m., Benbrook was sunbathing on the terrace on the second level between the two apartment buildings. (See id.) Benbrook described what she saw that afternoon:

Well, the first thing I noticed — of course, I was lying down, sunbathing, and it’s such a quiet neighborhood that I was — you’re very, very conscious of a loud noise, and I heard a car speed by— I mean — I don’t know how fast, it looked like 60 miles an hour, or something, but it went by very quickly, and it was followed by, I believe an unmarked police car and then, I think, a motorcycle was behind that. And I just sort of looked up, and I noticed all that activity, and of course after hearing it. Then it disappeared, and my first thought was — you know, something’s going on and somebody’s trying to get away from someone, or something. But, anyway, the next thing I knew a helicopter went over, and — My neighbor and I were out there and were just sort of playing around, I didn’t know what was going on. And then I heard a gunshot — but I didn’t know that was what it was ... I just heard this loud noise. At first, I thought it came from the helicopter, I didn’t know.

And then within a few minutes, I don’t know exactly how many minutes, I heard quite a few more gunshots — I don’t recall the exact number. And it was as though they happened almost to the — at the hedge out by the street. And when we heard those, it was — natural instinct, we were scared to death, we thought we were going to be hurt, or something, and we ran inside. My neighbor and I did, into my apartment.

(Id. at 1085-86.) Benbrook and her neighbor went to the window and saw someone running from the hedge towards their building. (See id. at 1086.) She described the man as “sort of hippie looking [with] long hair, ... horn rimmed glasses, a full beard, and — not very tall, maybe 5'8"”, unkempt, and running very quickly. (Id.)

After Benbrook and her neighbor saw the suspect come towards the building, they went to Debbie Staggs’s apartment because it was in the front of the building. (See id. at 1087.) They looked out her front window and saw a policeman limp across the sidewalk and fall in the grass. (See id.) Soon thereafter, they saw their neighbor Doug Clark lying in his front yard. (See id. at 1087-88.)

Benbrook looked at two sets of photographs at a MPD station. (See id. at 1088.) One group of photographs depicted men that were more conservative looking with short hair, and the other depicted men with a more unkempt appearance. (See id.) She picked one photograph from each group. (See id.) Strother passed her two sheets of photographs which he identified as the two groups that she looked at that day. (See id. at 1088-89.) She marked the photographs that she picked out, and the State entered these sheets as State’s Exhibit 13 (ECF No. 284-25 to -27). (See ECF No. 231-11 at 1089.) At trial, Benbrook identified Cone in the courtroom. (See id. at 1090.)

On cross-examination, Benbrook explained her comment that Cone was “hippie” looking in his appearance. (Id. at 1092-93.) She stated that she meant he had “extremely long hair as in shoulder length or a little bit longer” and a full beard. (Id. at 1093.) She testified that the trial was the third time that she had seen the pictures, and she did not recall initialing them when she first saw them. (See id. at 1093-94.)

(8) Testimony of Deborah Stanford

The State’s eighth witness was Deborah Stanford (formerly Deborah Staggs), who lived at 230 Hawthorne, between Poplar and Lawrence, in August of 1980. (See id. at 1095-96.) Stanford was the neighbor who was sunbathing with Benbrook on the afternoon of August 9, 1980. (See id. at 1096.) She testified:

When we were sitting there we first noticed a car going across the front of the apartment, going real fast, and we remarked that, you know, something must be up and they’re probably going to get caught, but they were really speeding. And just a few seconds behind that car was another car and a police motorcycle. And within a few seconds after that we heard — what sounded like gunshots, or something, and a police helicopter went [overhead], and we got up and went inside.

Well, we first went into Barbara’s apartment, I think, and looking from her window we saw a white male come across the front lawn, toward us, and go between the two buildings.

(Id. at 1096-97.) She described the man they saw as “mid-twentyish — white, longish hair, medium height — medium build, had on an open shirt, not buttoned, and shorts.” (Id. at 1097.) She stated,

When he disappeared out of our sight, there appeared several policemen in the front yard; one that looked like he’d been shot, was limping, sat down on the front lawn. A couple of other officers, and then several — what I think were officers from the TACT Squad, they were dressed differently and had rifles, I guess. They continued chasing him. Two or three of them stayed with the officer that had been shot.

(Id. at 1098.) As the man went toward the rear of the apartment, Stanford heard “a couple more shots.” (Id.) She saw her neighbor Doug Clark lying in the front yard a little while later. (See id.) Stanford could not identify Cone at trial as the person she saw that day. (See id. at 1099.)

(9) Testimony of John Douglas (“Doug”) Clark

The State’s ninth witness was John Douglas (“Doug”) Clark. (See id. at 1100.) Clark was visiting relatives who lived on Hawthorne on August 9, 1980, around 1 p.m. when he heard a commotion. (See id. at 1100-01.) He testified:

Initially, I heard a car trying to pull up into a driveway, and skidding gravel around, and then I saw the car pu