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State v. Bondurant3/20/1998
sel and for an investigator. After the motion was granted, Dan White was hired as an investigator. Lawrence Nickell was originally appointed as co-counsel; however, he became ill after November 13, 1991, and Jerry Colley's son, John Colley, was appointed. As co-counsel, Nickell researched the law, filed motions, and sometimes appeared with Jerry Colley in court. John Colley did most of the research after he was appointed.
Shortly after Jerry Colley was appointed as counsel, he received a letter from Robert D. Massey, who served as Public Defender for the Twenty-Second Judicial District from September 1987 to August 1992 and who represented Pete Bondurant in the Dugger trial. In his letter, Massey indicated that he and Bobby Sands, who represented the defendant in the Dugger trial, had relevant information for this trial, offered his assistance, and suggested that counsel contact CCRC. Colley talked to Sands and to Massey about the Dugger case. He later received another letter from Massey along with a group of the defendant's medical reports from the Tennessee Department of Correction (TDOC). While Colley looked at these records and considered whether they would be helpful at the guilt phase, he did not introduce them at trial, nor did he investigate them further. A TDOC diagnostic report was included in the evidence at the hearing on the motion for new trial.
The rate of attorney compensation was $30 for in-court hours and $20 for out-of-court hours. Colley testified that the low compensation did not affect his ability to provide adequate representation of the defendant and that he spent a substantial amount of time on the case. He believed he did virtually everything he should have done.
As part of his investigation, White talked to potential witnesses and reported to Colley. If they decided to use a witness, Colley would call the person. Colley's defense theory was that the defendant was innocent. From his investigation, Colley did not believe the defendant had a motive to kill the victim and thought there was a reasonable doubt concerning whether the defendant committed the murder. Colley thought they had a good chance of getting a not guilty verdict or a hung jury because the state would have a problem proving the defendant's guilt beyond reasonable doubt. Even after reviewing the discovery, Colley believed their best strategy was reasonable doubt. He testified, "I thought we had a good chance of at least a hung jury or a not guilty verdict, and I was going for broke on that."
When Colley met with the defendant at TDOC, Colley was operating on a theory of reasonable doubt acquittal and communicated this theory to the defendant. During their conversations, Colley questioned the defendant and thought that, if there had been a contrary factual version of the alleged crime, the defendant would have told him. Colley never directly asked the defendant if he killed the victim, nor did he encourage the defendant to say that he was involved. In fact, Colley testified that his optimism and enthusiasm about their chances could have discouraged the defendant from saying he was involved in the murder.
Colley recognized that Denise's testimony was important to the state's case because she was the only one that testified about the details of the murder. He also knew Denise had been a key witness in the Dugger trial, however, he did not obtain a copy of her testimony. Nor did he know about or obtain a copy of a videotape of the Dugger trial. Although the other attorneys may have told him about what they used to impeach Denise in the Dugger trial, Colley did not know about such documents or information and did not think he used any of it. Colley testified that he did no
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