State v. Bondurant3/20/1998
d in Tennessee Code Annotated section 39-2-203(i)(5)." Id. at 532. The Court determined that jury instructions on the definitions are necessary to preclude "a basically uninstructed jury" that "cannot lawfully impose the death penalty." Id. (citing Godfrey v. Georgia, 446 U.S. 420, 429, 100 S. Ct. 1759, 1765 (1980)). In the present case, the trial court clearly instructed the jury in accordance with the dictates of Williams.
The defendant's reliance on Houston v. Dutton, 50 F.3d 381, 387 (6th Cir.), cert. denied, --- U.S. ---, 116 S. Ct. 272, 133 L.Ed.2d 193 (1995), and Rickman v. Dutton, 854 F. Supp. 1305, 1309-10 (M.D. Tenn. 1994), is also without merit. These cases are distinguished in that the definitions of "torture" and "depravity" were not supplied to the jury in those cases. Regardless, this court is not bound by the circuit and district courts' rulings. This Court is only required to follow the applicable constitutional rulings of the United States Supreme Court. See State v. McKay, 680 S.W.2d 447, 450 (Tenn. 1984); State v. Bowers, 673 S.W.2d 887, 889 (Tenn. Crim. App. 1984). See also, State v. Vickers, 159 Ariz. 532, 768 P.2d 1177, 1188 n.2 (1989) (Arizona Supreme Court refuses to follow Ninth Circuit's invalidation of Arizona death penalty statute).
In addition, the defendant's other constitutional challenges to the jury instructions at the sentencing hearing have all been rejected by our supreme court and are without merit. See, e.g., State v. Brimmer, 876 S.W.2d 75, 81-83, 87 (Tenn. 1994); Cazes, 875 S.W.2d at 268-69; Howell, 868 S.W.2d at 257-58; Smith, 857 S.W.2d at 22-23; Harris, 839 S.W.2d at 75; State v. Boyd, 797 S.W.2d 589, 598 (Tenn. 1990); Thompson, 768 S.W.2d at 250-52; State v. Barber, 753 S.W.2d 659, 670-71 (Tenn. 1988).
X. INEFFECTIVE ASSISTANCE OF COUNSEL
In another issue, the defendant raises several claims of ineffective assistance of counsel. Some of these have already been addressed in conjunction with the substantive issues. We find the defendant's claims demonstrate no basis for reversible error.
As we explained above, when a defendant seeks relief on the basis of ineffective assistance of counsel, he must first establish that the services rendered or the advice given was below "the range of competence demanded of attorneys in criminal cases." Baxter, 523 S.W.2d at 936. Second, he must show that the deficiencies "actually had an adverse effect on the defense." Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. There must be a reasonable probability that but for counsel's error, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Best, 708 S.W.2d at 422. Should the defendant fail to establish either factor, he is not entitled to relief.
Moreover, on appeal, the findings of fact made by the trial court are conclusive and will not be disturbed unless the evidence contained in the record preponderates against them. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991); Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the defendant to show that the evidence preponderates against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
After the initial motion for new trial was filed in this case, counsel was substituted, and new counsel raised and presented proof on the issue of ineffective assistance of trial counsel at the hearing on the motion for new trial.
Jerry Colley, lead trial counsel, testified that he had practiced law for 43 years. He was appointed to represent the defendant in May 1991. On October 1, 1991, he filed an ex parte motion requesting funds for associate coun
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