Summary:

Memphis Police Lieutenant Ronald Oliver, 43, responded to a holdup alarm at a Wendy's restaurant in Frayser. Oliver approached Workman as he was leaving the restaurant after the robbery.

Testimony indicated Workman broke away from Oliver, who ordered him to stop. Oliver and Officer Aubrey Stoddard then grabbed Workman, who broke free again, shot Oliver once in the chest and Stoddard in the arm. Workman was found hiding in bushes nearby with the .45 caliber murder weapon. Workman admitted during his trial that he fired the shot that killed Oliver.

Workman, who wounded another officer and was shot himself, said he had been using cocaine that day and that he did not intend to kill Oliver. The robbery netted about $1,170. since receiving the death penalty, Workamn has argued that Oliver could have been shot by another policeman during the shootout.

Citations:

State v. Workman, 667 S.W.2d 44 (Tenn. 1984) (Direct Appeal).
Workman v. State, 868 S.W.2d 705 (Tenn.Cr. App. 1993) (PCR).
State v. Workman, 111 S.W.3d 10 (Tenn.Crim.App. 2002) (Newly Discovered Evidence).
Workman v. Bell, 245 F.3d 849 (6th Cir. 2001) (Habeas).
Workman v. Bell, 178 F.3d 759 (6th Cir. 1998) (Habeas).

Final / Special Meal:

Declined. (Workman asked that a vegetarian pizza be purchased and donated to a homeless person for his last meal, but prison officials refused)

Final Words:

“I've prayed to the Lord Jesus Christ not to lay charge of my death to any man." About two minutes later, with his eyes closed as he gulped, somewhat nervously, Workman uttered a final statement: “I commend my spirit into your hands Lord Jesus Christ.”

ClarkProsecutor.org

Workman executed

Flurry of legal maneuvers fails to derail death sentence

By Sheila Burke, Brad Schrade and Sheila Wissner - The Tennessean

Wednesday, May 9, 2007

The state executed condemned cop killer Philip Workman in a West Nashville prison early today in the third death sentence carried out in Tennessee in 47 years. Workman, 53, was pronounced dead at 1:38 a.m. after a lethal cocktail of drugs was injected into his body as he lay strapped to a gurney at Riverbend Maximum Security Institution.

Workman’s last words were brief. “I've prayed to the Lord Jesus Christ not to lay charge of my death to any man,” Workman said. About two minutes later, with his eyes closed as he gulped, somewhat nervously, Workman uttered a final statement: “I commend my spirit into your hands Lord Jesus Christ.” He then turned his head slightly to the left and lay motionless, as an ashen color overtook his face.

Workman's arms, legs and midsection were strapped to the gurney. He wore white prison pants and a cream prison top. An intraveneous line was attached to his right arm. The drugs were administered by a person in another room and pumped through a tube that appeared be fed through a prison wall.

Warden Ricky Bell, dressed in a black suit, stood at the head of the gurney, his hands clasped throughout most of the 17-minute process. Minutes after Workman's last words, prison officials drew shut the brown blinds over the window separating witnesses from the execution chamber. Bell then spoke through a microphone and pronounced Workman dead.

Workman was executed nearly 25 years to the day of his conviction in the 1981 shooting death of Memphis police Lt. Ronald Oliver.

Authorities say Workman fired the fatal shot during a botched robbery at a Wendy’s hamburger restaurant. But the condemned and his supporters maintained until the end that it was not his bullet that killed Oliver, instead suggesting that another police officer inadvertently shot Oliver during the chaos of the moment.

Oliver’s family members, including his widow, were just feet away from Workman, watching the through a glass window as the deadly drugs were fed into his arm. The Oliver family declined to comment, but a victim’s rights advocate with the group "You Have the Power" addressed reporters after the execution. “Though a sentence has finally been carried out, nothing will happen that will ever provide them closure,” said Valerie Craig, who spoke for the family.

Workman's family was not present during the execution. His brother had planned to attend but backed out Tuesday evening.

Two hours before his death sentence was to be carried out, Workman asked the state's highest court to delay his execution but the Tennessee Supreme Court denied the appeal. In the last ditch filing, Workman's lawyers argued that the inmate's execution date, coming just over a week after the state issued new death penalty protocols, denied him sufficient time to challenge the process. "There is a growing body of medical, scientific, and other evidence which clearly shows that lethal injection using (the proscribed combination of drugs) without monitoring of anesthetic depth risks torture," his lawyers wrote.

But in an unsigned ruling issued just after 12:30 a.m., the state Supreme Court found that "Workman’s challenge to the revised protocol has no likelihood of success on the merits." "At some point, the State has a right to impose a sentence not just because the State’s interests in finality are compelling, but also because there is a 'powerful and legitimate interest in punishing the guilty...,'" the ruling states. "After twenty-five years and countless court proceedings, that time has come." Workman's lawyers worked furiously to stop the execution.

On Tuesday, the U.S. Supreme Court refused to grant Workman a stay. His lawyers turned to the nation’s highest court after requests for a delay were rejected by the 6th U.S. Circuit Court of Appeals.

Last week, U.S. District Judge Todd Campbell issued a temporary restraining order until he could hear testimony on the new lethal injection protocol the state planned to use in Workman’s execution. But the circuit court overturned that ruling Monday saying the method is used successfully in other states. As the day wore on yesterday, Workman asked the U.S. District Court in Nashville to release his body to his brother immediately after his death and not allow an autopsy to be performed. Judge Campbell later issued a temporary injunction ordering the state not to autopsy Workman’s body at least until a hearing can be held on May 14.

Workman met with family, friends and a spiritual advisor yesterday, said Dorinda Carter, spokeswoman for the Tennessee Department of Correction.

At one point, he asked that a vegetarian pizza be purchased and donated for his last meal, but prison officials refused. “He instructed that it be given to a homeless person but we’re not able to do that," Carter said. Instead, Workman decided to skip dinner on the eve of his execution. "He could have had food from the cafeteria that the other inmates were having tonight," she said.

Outside the prison, about 60 anti-death penalty protestors gathered for a vigil. As the time for a reprieve grew short, some of the protestors said they had lost hope that his life would be spared. "My spirit has hope but my worldly mind says there's not much hope," said Alonzo Fortune, a Nashville man who opposes the death penalty. The group was singing and holding hands in a circle while standing in a fenced-off grass field.

Inside the prison, Workman was on death-watch, just feet away from the death chamber. "I wish our governor would wake up and realize that it just doesn't work," said Jay Gilchrist, a lay minister in Nashville. "The death penalty doesn't deter crime. It doesn't save taxpayer money. That's for sure. And it's not a civilized thing to do."

Workman joins Robert Glen Coe (executed in April 2000) and Sedley Alley (executed in June 2006) as only the third person executed by the state of Tennessee since 1960.

Workman Executed After Two Decades in Prison

By April Norris - MyFoxMemphis.com

May 9, 2007

MEMPHIS, Tenn. (WHBQ FOX13 myfoxmemphis.com) -- Governor Phil Bredesen could have stopped it, but didn't. Convicted cop killer Philip Workman was executed this morning by lethal injection. He's the third prisoner to be executed in Tennessee in 47 years.

Workman has two children, but only his brother Terry was there, he decided just before the execution not to witness it. Before the execution, Terry Workman said his brother is a thief, but not a murderer.

Philip Workman spent nearly two decades in prison. On August 5, 1981, he shot and killed Memphis Police Officer Lieutenant Ronald Oliver during a gun battle outside a Wendy's.

Since then, Workman's attorneys filed numerous appeals trying to stop his execution. They were based on contradicting evidence of whether Workman's bullet killed Oliver or if it was from another officer's weapon.

Reverend Joe Ingle, Workman's spiritual advisor sat outside his cell as the hours closed in. "He robbed a restaurant," said Ingle. "He did not shoot and kill anybody. The ballistic evidence says that."

Oliver's widow along with his step children, didn't want Workman to die, but witnessed the execution. Family friend Valerie Craig spoke on their behalf. "The most they can hope for is for some peace from the knowledge that the person who put them on this course will never do this to another family," she said.

Dorinda Carter, the prison's spokesperson, said Workman decided not to have his last meal. "He requested a vegetarian pizza be delivered to a homeless person, but of course we're not in the position to do that."

Workman died at 1:38 Wednesday morning at the Riverbend Maximum Security Institution in Nashville. He was strapped to a gurney and injected with three drugs.

Gene Patterson also witnessed the lethal injection. "He said quickly 'I commend my spirit into your hands my Lord Jesus Christ,'" said Patterson. "At that point he tilted his head, breathed, then there was no movement."

As the execution happened, nearly 100 peaceful protesters who don't agree with the state's execution law stood by praying, including Clemmie Greenlee, whose son was murdered. She said two wrongs don't make a right. "That's not their job, it's God's job," said Greenlee. "I just pray for their souls and mercy because they gonna have to answer to that."

Workman's body is now in the hands of the medical examiner in Nashville. It will be up to his family to give him a burial.

Tennessee Prepares to Execute Philip Workman

By Rose French - MyFoxMemphis.com

AP - May 8, 2007

NASHVILLE, Tenn. (WHBQ FOX13 myfoxmemphis.com) -- A death row inmate convicted of killing a Memphis police officer in 1981 was running out of legal options Tuesday as federal courts considered several last-minute moves moves by his attorneys to get a stay of execution. Philip Workman was scheduled to die at 1 a.m. CDT Wednesday. It would be Tennessee's third lethal injection since 2000.

Workman spent Tuesday visiting with his brother and two friends in a special cell near the execution chamber, Correction Department spokeswoman Dorinda Carter said. Instead of ordering a last meal, Workman requested that a vegetarian pizza be given to a homeless person, which the Correction Department won't do, Carter said.

Workman has previously been on "death watch" three times and has come within hours of execution before being granted stays. This time, Workman's attorneys say the state's newly revised execution protocols violate the constitutional ban on cruel and unusual punishment, and that Workman hasn't had enough time to challenge the new procedures.

Gov. Phil Bredesen imposed a 90-day moratorium on executions in February after an Associated Press review of the execution procedure manual found it was a jumble of conflicting instructions that mixed lethal injection instructions with those for the old electric chair.

The department adopted the revised version of the manual just over a week ago. A federal judge halted Workman's execution last week over concerns about the revisions, but a three-judge panel of the 6th U.S. Circuit Court of Appeals lifted that temporary restraining order Monday.

The appeals court rejected a petition Tuesday seeking a hearing by the full court, and it refused to consider his motion for a stay of execution. Workman's public defender, Kelley Henry, did not immediately return calls after the ruling. The U.S. Supreme Court on Tuesday rejected his motion for a stay of execution based on separate claims that he was convicted on perjured testimony and that the state withheld evidence that would have established Workman's innocence. That claim was also rejected last week by a three-judge panel of the 6th Circuit.

Later Tuesday night, Workman's attorneys filed another motion for a stay from the 6th Circuit seeking to continue his appeals. He also filed another motion with the U.S. Supreme Court, this time challenging the state's lethal injection protocol, however, it was rejected.

Workman could also appeal to the governor for clemency. "We'll cross that bridge when we come to it," Bredesen's spokesman Bob Corney said. A federal judge on Tuesday granted Workman's request that his body not be autopsied after execution.

Besides Tennessee, executions have been halted in 10 other states so procedures could be reevaluated: Florida, California, Missouri, New Jersey, Arkansas,, once by executive reprieve in 2003 and once by the federal district court in 2004.

Terry Workman, Philip Workman's brother, said he believes the state is intent on putting his brother to death this time. "It would be kind of like standing in front of someone with a loaded weapon and you're wondering if they're going to shoot you," he said recently. "It doesn't matter if we have all this evidence. The way the state looks at it is, it was a police officer who was killed and he (Workman) caused the situation to occur. They don't really care whose bullet it was."

Workman executed

By Jared Allen - Nashville City Paper

May 09, 2007

At 1:38 a.m Wednesday, Philip Workman was executed by way of lethal injection by Tennessee correction officers at the state’s Riverbend maximum security prison in Nashville, Department of Correction officials said. Workman became the 128th person to be executed by the State of Tennessee, and only the third person to be executed by lethal injection, the method that the state adopted in 1998 after a federal ban on executions was lifted. The 53-year-old Workman had been on death row for 25 years.

On May 11, 1982, Workman was convicted of murdering Memphis Police Department Lt. Ronald Oliver after Oliver was fatally wounded during the 1981 arrest of Workman, who was robbing a fast-food restaurant.

For years Workman had based his numerous appeals on his claims that Oliver was actually killed by friendly fire. Following his conviction, new evidence came into light that, according to Workman and his supporters, called into question the legitimacy of his death sentence. No state or federal court, however, saw fit to grant Workman a new trial.

More recently, Workman appealed to various courts to stay his execution so he could fight the constitutionality of the state’s renewed execution protocol, which called for the continued use of a three-drug lethal injection protocol. Those appeals continued up until the 11th hour.

A U.S. District Court Judge in Nashville had ordered Workman’s execution delayed until at least May 14, but that order was overturned by the Sixth Circuit Court of Appeals. That same District Court Judge, Todd Campbell, on Tuesday ordered an injunction against the state preventing it from conducting an autopsy on Workman, gathering any forensic evidence from his body, or in any way examining his body after he was put to death.

Workman brother, pastor cry 'injustice'

Didn't kill officer during 1981 robbery, they claim

By Richard Locker - Memphis Commercial Appeal

May 12, 2007

NASHVILLE -- In their first public statements since Wednesday's execution, Philip Workman's brother and minister said Friday the state executed an innocent man. Terry Workman and United Church of Christ minister Joe Ingle said Memphis police and prosecutors knew that Workman did not fire the bullets that killed police Lt. Ronald Oliver during a Memphis restaurant robbery in 1981.

"It's not the facts that put Philip Workman in the grave. It's the myth promulgated by the FOP (Fraternal Order of Police), Memphis police and prosecutors and some state officials," Ingle said. Police and prosecutors have always rejected those charges, and a Shelby County jury convicted Workman of first-degree murder for Oliver's death in 1982.

Attorneys who represented Workman during his long appeals process have always charged that evidence that proved Oliver was killed by the "friendly fire" of fellow officers was kept hidden from his original trial attorneys -- and thus from the jury. Workman and Ingle held a Nashville news conference with Asst. Federal Public Defender Kelley Henry, Philip Workman's lawyer. Terry Workman said the exclusive strategy his brother's original defense attorneys used during his trial was to keep Workman alive -- not prove him innocent.

Henry said that lawyers did not file a formal request for clemency or a stay with Gov. Phil Bredesen in the hours leading up to the execution because Workman told them he "didn't want to grovel." Instead, Workman, 53, dictated a letter that was hand delivered to the governor on Tuesday saying, "All I ask of you is what you would ask of Jesus for yourself," Henry said.

Prison log charts Workman's final hours

By Lawrence Buser - Memphis Commercial Appeal

May 11, 2007

Philip Workman spent his final hours talking on the telephone, reading the Bible and visiting with a spiritual adviser before he was executed early Wednesday for killing Memphis police officer Ronald Oliver in 1981.

A log book at Riverbend Maximum Security Institution in Nashville documented his three days in his Death Watch isolation cell about 50 feet from the execution chamber where he was put to death by lethal injection. The log, with entries nearly every 15 minutes, said he had non-contact visits with his brother, a sister and another woman at mid-day Tuesday in a visitation gallery. After the visits, he was stripped, searched, given new prison clothes and returned to his cell.

At 4:50 p.m. he refused his food tray.

At 8:09 p.m. a prison nurse gave Workman Tylenol.

At 9:15 p.m., Workman's religious adviser Joe Ingle visited Workman who sat on his bed as they talked and read the Bible. Workman asked for and received grape juice at 9:40 p.m.

At 11:04 p.m. Ingle left.

Workman continued reading his Bible and at 12:37 a.m. he got up for a drink of water and to relieve himself.

At 12:47 a.m., Workman was praying and 13 minutes later Warden Ricky Bell arrived to tell him it was time. Guards secured him to a gurney.

At 1:05 a.m., Bell, the guards and Workman departed from his cell. The final entry reads: "Log closed." Workman was pronounced dead at 1:38 a.m.

Tennessee executes Philip Workman by lethal injection

By Rose French - The Jackson Sun

Associated Press

NASHVILLE, Tenn. (AP) _ A man convicted of killing a Memphis police officer in 1981 was executed by lethal injection early Wednesday. Philip Workman, 53, was pronounced dead at 1:38 a.m. CDT.

Workman was convicted in the death of Lt. Ronald Oliver during a shootout following his robbery of a fast-food restaurant.

Tennessee executed Sedley Alley last June and Robert Glen Coe in 2000 _ both by lethal injection. The last previous execution was by electrocution in 1960.

Workman had previously been on "death watch" three times and had come within hours of execution before being granted stays. State and federal courts denied several last-minute motions from his attorneys late into Tuesday night trying to stop the execution.

ProDeathPenalty.com

Police Lieutenant Ronald Oliver, 43, was killed on the night of Aug. 5, 1981 while responding to a holdup alarm at a Wendy's restaurant in Frayser. Ronald Oliver approached the robber as he was leaving the restaurant. Testimony indicated Workman broke away from Oliver, who ordered him to stop. Oliver and Officer Aubrey Stoddard then grabbed Workman, who broke free again, shot Oliver once in the chest and Stoddard in the arm. Workman was found hiding in bushes nearby with the .45 caliber murder weapon.

Workman admitted during his trial that he fired the shot that killed Oliver. Workman, who wounded another officer and was shot himself, said he had been using cocaine that day and that he did not intend to kill Oliver. The robbery netted about $1,170. Workman was convicted of first-degree murder in the perpetration of a robbery and sentenced to death.

Workman's attorneys argue that Oliver could have been shot by another policeman during the shootout in the Memphis restaurant's parking lot. "It's weighed heavily on my mother, but she's a strong one and she's coped over the years,'' said Oliver's stepson, Capt. Vic Finger of the Bartlett Police Department. "We haven't really said it, but I think an execution would be sort of a closure for us." Finger and his mother, Sandra Noblin, plan to attend Workman's execution.

One of two police officers who struggled with Phillip Workman 19 years ago said he had no doubt Workman fatally shot the other officer, Lt. Ronnie Oliver. "I think that it's clear that Workman did it. He admitted he did it. Over the years, he's just trying everything he can to get out of it, changing his story," said retired police officer Aubrey K. Stoddard.

Workman's attorneys say they have affidavits from a Georgia medical examiner and a ballistics expert that indicate the bullet that killed Oliver may not have come from the .45-caliber pistol Workman admits he was carrying at the time and fired at least once. "Where else would it come from?" Stoddard asked.

Oliver was holding Workman from behind, Stoddard said, as he and Workman were wrestling for control of the gun Workman had pulled. "I had him hugged up next to me. The gun was between my belly and his belly. And he squeezed it up into my arm. That's what pulled me loose of him. When it did, his gun hand was free," Stoddard said. At that point Stoddard was shot. He slid across the pavement backward 10 to 15 feet with a gunshot wound to the right arm.

He never pulled his gun. "Mine was never removed from the holster. In fact, it shaved the grip off where I slid across the blacktop. It shaved it down flat," Stoddard said. "What happened when he fired that first shot, it tore me loose. So, I don't know that split second what might have happened. I just spun around. He just kept shooting, that's what it sounded like."

Stoddard said the other gunshots followed so closely that Workman must have fired the shots. "The shooting never stopped. It was over probably in a matter of 10 to 15 seconds. All of them shots were just all at one time," Stoddard said. Oliver's gun was empty. Police said they believed that Oliver had fired as a reflex and that none of the shots hit anyone.

Stoddard retired from the police department in 1986. During his trial, Workman claimed his memory was clouded because he had injected cocaine in his arm earlier in the day. "I pulled out the gun to give to them and I was hit and grabbed. The gun went off," Workman testified. "The next thing I knew, I heard a noise, gunfire. I guess I shot again."

Executed U.S. man gets last meal wish after he dies

Reuters News

May 11, 2007

NASHVILLE, Tenn. (Reuters) - A convicted murderer put to death in Tennessee this week got his last meal wish after he died.

Philip Workman had turned down the usual final meal of his choice traditionally offered the condemned, asking instead that a vegetarian pizza be given to a homeless person. Prison officials refused to send out a pizza and Workman died on Wednesday by lethal injection. But news accounts of his request touched a nerve with the public.

Nashville's Union Rescue Mission received 170 pizzas. Media reports said listeners to a radio station in Minnesota also ordered pizzas sent to another organization for troubled youngsters.

Dorinda Carter, spokesperson for the Tennessee Department of Correction, said, "Taxes are to be spent on specific things for the care of the inmates." But she acknowledged there was no regulation against carrying out Workman's request.

An official at the mission said "the pizzas were enjoyed greatly by our clientele."

Philip Workman Executed in Spite of Serious Doubt

TCASK.org

At 1:38 am on May 9, 2007, Philip Workman was pronounced dead at Riverbend Correctional Facility in Nashville Tennessee. Nearly 100 vigilers stood silently with lighted candles awaiting the news for long minutes as there was no word from the prison until 1:45 - a full three quarters of an hour after the execution proceedings commenced. Below is TCASK's statement in response to the execution:

Workman’s Execution Proves Tennessee’s Death Penalty is Broken

Nashville: When the state of Tennessee executed Philip Workman at 1:00am this morning, it did more than kill a man; it destroyed any argument that Tennessee’s death penalty system can possibly be trusted to hand down fair and equitable justice.

In the end, the legal wrangling came down to the question of whether or not the Sixth Circuit Court had the authority to overturn a temporary restraining order put in place by a Federal District Court judge. No court actually considered evidence suggesting that Workman was factually innocent of the murder of Memphis Police Officer Ronald Oliver.

Workman was convicted of the 1981 shooting of Lt. Oliver during a robbery of a Wendy’s restaurant. While Workman has never denied the robbery, evidence brought to light after his initial conviction strongly indicates he did not fire the shot which killed Lt. Oliver. According to an opinion by Tennessee Supreme Court Justice Drowota, if Workman did not fire the shot which killed Lt. Oliver, than he was not guilty of capital murder.

Only one witness, Harold Davis, claimed to have actually seen Workman shoot Lt. Oliver. But since the initial trial, Davis, who had a history of calling in false tips to police in the hopes of a reward, has confessed that he perjured himself and actually was not present at the crime scene.

He has passed a polygraph examination verifying this testimony. Worse yet, the only expert forensics testimony on the record, that of Dr. Cecil Wecht, concludes that “to a degree of medical certainty” the bullet that killed Ronald Oliver could not have come from Workman’s gun, a .45 caliber pistol. Wecht’s testimony is based both on the size of the exit wound and on the fact that the bullet exited the body at all. Both are inconsistent with the type of gun and ammunition that Workman was using. This suggests that Oliver was killed by friendly fire. Five of the jurors from Workman’s trial, the original prosecuting attorney, and Lt. Oliver’s daughter have all called for clemency for Workman.

All this evidence should be disturbing to anyone concerned with fairness and justice, regardless of their position on the death penalty. But what should be even more disturbing is the fact that Workman went to his death without any court having substantively considered these facts.

Tennesseans deserve to know that their state is taking every necessary precaution to guarantee that it does not take life unjustly. How can we afford to believe this anymore when we execute a man without considering the strong evidence that he did not commit the crime for which he was executed.

Proponents of the death penalty continually maintain that it represents justice. But armed robbery is not a capital offense. Across the country more than 120 people have been exonerated from the death rows of 25 states.

Paul House currently sits on Tennessee’s death row for a crime that the United State Supreme Court ruled that no reasonable juror would find him guilty of if presented with all the evidence. And recent investigation has suggested that several innocent men have been executed. With the execution of Philip Workman, Tennessee destroyed ant reasonable argument that its death penalty is administered fairly. It is far past time that we stop all executions until we can guarantee that fairness, equity, and true justice prevail.

Reverend Stacy Rector, Executive Director
Alex Wiesendanger, Associate Director

Case account by Jefferson Dorsey and Fabian Gastellier, with thanks to NewsChannel 5 for its work on the case

JusticeDenied.org

Edited by Stormy Thoming-Gale

{Editor's note: This account has many key factors of wrongful imprisonment -- perjured testimony, a coerced witness, prosecutorial misconduct, poor legal representation at trial, and possible police cover-up. As this could be the first execution in Tennessee since 1960, Philip's case attracted much local media and has received attention from a prominent attorney. Exculpatory ballistic evidence was discovered in 1990, when current defense attorney Chris Minton took the case for post-conviction, yet has never been heard in court. However, Philip is still likely to be executed -- in OUR names. In researching this story, I became outraged by this injustice, and hope that this story will persuade you to become active on Philip's behalf. At the end of his account, you will find several suggestions of ways you can help, and resources where you can find more information. STG}

"Our pitch is, the guy is innocent," Chris Minton, Philip's attorney, says. "The guy did not commit a capital offense. The state should not execute somebody who did not commit a capital offense. But we're dealing with allegations of police misconduct, and it's hard for the courts to swallow."

4 Facts of Innocence

• The bullet was not from Philip’s gun.

• Eyewitness recanted testimony -- supported by facts of the case.

• Eyewitness who never testified places another firing weapon at the scene .

• Perjury committed by Officer Parker when denying he had a shotgun at the scene.

Philip Workman’s date of execution is set for April 6th, 2000.

The Crime

On August 5, 1981 in Memphis, Philip Workman went into a Wendy's restaurant and committed robbery with a .45 caliber semi-automatic pistol. What happened next remains somewhat of a mystery. Philip Workman doesn't remember very well, as he was under the influence of drugs that night. His account of events follows.

Philip waited until closing, approximately 10:00 p.m., then pulled his pistol and walked the employees into a back room, telling them to stay put. During the robbery, an employee tripped the silent alarm. Seeing a police cruiser pull up, Philip went outside and talked with the officer, Lt. Ronald Oliver. Lt. Oliver assumed Philip was an employee, and thought the alarm was a false call. When Lt. Oliver turned to look at Officer Stoddard's arriving cruiser, Philip started running across the parking lot. Philip tripped on a curb and fell into the adjoining parking lot. Then, he yelled "I give up!" and tried to pull the gun from his pants to give to the officers who were running up behind him.

As Philip tried to surrender his weapon to the officers, he was hit over the head with a flashlight, opening a wound that required seven stitches. At that moment, Philip's pistol went off, aimed straight up into the sky. Suddenly, Philip was surrounded by gunfire, and he began to run again. As he ran, he cocked the .45 caliber semi-automatic, which ejected a live round. Philip tripped, again firing his pistol up into the air.

As you will see, the police investigation of the crime scene supports Philip's account. Two spent cartridges and a live round were found in the vicinity of the struggle and shooting. Another spent cartridge was found across the auto store parking lot, where all the witnesses saw Philip stumble and fire straight up into the air.

Philip hid behind houses as the Memphis police blanketed the area searching for him. They used dogs, helicopters, cruisers, and officers on foot. Finally, a civilian spotted Philip hiding beneath a truck. Soon after, officers found Philip in the bushes, covered with blood from his head wound. Police ordered the dogs to attack him, and then officers beat him further. Philip was taken to a hospital, where he was treated for facial cuts, the wound on his head, numerous bruises and, significantly, a shotgun wound to his buttocks.

At the scene of the shootout, Lt. Oliver lay dying from a bullet that passed completely through his torso. Officer Stoddard received a wound to the fleshy part of his upper arm. The police testimony offered at trial differed substantially from Philip's. Officer Stoddard claimed that Lt. Oliver grabbed Philip, and Stoddard joined in the struggle. Stoddard claimed he was "belly-to-belly" with Philip. He said that Philip shot him in the arm at point-blank range. Officer Stoddard heard several more shots, then saw Lt. Oliver fall to the ground wounded.

Officer Stoddard claimed that Lt. Oliver then shot wildly, emptying his six-shot revolver. He also claimed that the only shots fired came from Lt. Oliver's revolver and Philip's pistol. However, Officer Stoddard did state that he did not actually see Philip shoot Lt. Oliver.

Officer Parker was the next policeman to arrive. He claimed that he heard two shots, ran around Wendy's and saw Philip shoot Stoddard. He said that Lt. Oliver had already been shot. Officer Parker also said he never fired a shot. Both officers claim that Philip and Lt. Oliver were the only people shooting and that Lt. Oliver did not shoot until he had been shot. Memphis police officers watch with concern as paramedics lift the fatally wounded Lt. Ronald Oliver into an ambulance in this 1981 photo from the Memphis

The Trial

Shelby County public defenders represented Philip at his trial. There were several key elements they left untouched. They did not investigate the wound that killed Lt. Oliver, nor probe key witness Harold Davis. They did not procure expert assistance on pathology or ballistics. In fact, they told Philip that his guilt was a foregone conclusion because public opinion was so inflamed against him. He was told that he had a tiny chance of receiving a life sentence -- but only if they didn't actively defend against his guilt. At the trial, 18 years ago, Philip's public defender told the jury its decision would be "whether it is murder in the first degree or murder in the second degree." Philip Workman's innocence was never considered.

The prosecution had two key points. The first was the bullet. During his opening argument, prosecutor Eddie Peterson told jurors, "You will hold in your hands the bullet that killed Lt. Oliver." The bullet that allegedly killed Lt. Oliver -- a .45 caliber hollow-point -- came from Philip's gun, according to an FBI expert. However, FBI experts also admitted there was no trace of blood, human tissue or any other evidence linking Philip Workman to the crime.

Dr. Bell performed the autopsy for the government and testified at trial. He told the jury that Lt. Oliver was killed by a through-and-through shot, an analysis echoed by every expert who examined the evidence. In other words, the bullet that killed Lt. Oliver passed completely through his body. Dr. Bell's autopsy report also showed that the entrance wound was twice as wide as the exit wound.

The police recovered Philip's weapon after the robbery, and found that it was loaded with .45 caliber, hollow-point ammunition. These low-velocity bullets have a thin metal skirt that falls off behind the bullet when it hits a target. The soft metal immediately expands, which transfers the kinetic energy into the object it strikes. It is extremely rare for this type of bullet to pass through a body; it is designed to stop inside, protecting anyone behind the target.

Before the trial, to compare ballistics, FBI experts took Philip's pistol and fired the same ammunition as Philip had into a water tank. The bullets expanded to twice their original diameter. A water tank is used for ballistics tests because water should not deform the projectile. But even the water caused the low-velocity hollow-points to mushroom. Dr. Bell's testimony virtually destroyed the prosecutorial theory that the bullet came from Philip's gun. In fact, in the prosecutor's closing argument, he did not attempt to say the bullet from Philip's gun was the fatal bullet.

New Evidence Regarding the Bullet

Jefferson Dorsey, defense attorney, points to a diagram of ballistic tests that he says suggests Workman didn't fire the fatal shot that killed Memphis police officer Ronald Oliver. In 1995, Philip's lawyers obtained an affidavit from Georgia's chief medical examiner, Dr.Kris Sperry, who said that silver-tip, hollow-point bullets expand upon impact and leave an exit wound larger than the entrance wound. The pathologist noted that the bullet that killed Lt. Oliver passed through his body and left an exit wound smaller than the entry wound. That bullet was never found.

Thanks to Dr. Wecht and Dr. Sperry, two well-known pathologists hired by the current defense team, we now know that the bullet that killed Lt. Olivier couldn't have been a .45 caliber hollow-point bullet such as the one that came from Philip's gun. Though the ballistic test showed Philip's gun couldn't have caused the fatal wound, it was too late to introduce the test as new evidence. In an analysis prepared for the defense lawyers, Dr. Wecht concludes: "Therefore, based on the path that the bullet took, the fact that the bullet exited the body, and the fact that Philip was using a .45 caliber pistol loaded with aluminum jacketed, hollow-point bullets, I do not believe that it was Philip's gun that fired the shot that fatally wounded Lt. Oliver."

Dr. Sperry, who works for the Georgia Bureau of Investigation, also notes that "every wound I viewed indicated that the .45 silver tip hollow-point bullet expanded upon entering the human body involved. In approximately 90% of the wounds I viewed, the .45 silver tip hollow-point bullet did not exit the human body it entered." He concludes that Lt. Oliver's wounds "are inconsistent with every wound I have seen created by a .45 silver tip hollow-point bullet." Dr. Wecht recently stated in an interview that the wound to Lt. Oliver is entirely consistent with the high velocity ammunition used by the Memphis police at the time of the shooting.

The bullet that killed Lt. Oliver passed in a single path through the heart, both lungs, the stomach and the diaphragm, before exiting. Recently, a judge opined that a bullet fragment might have caused the exit wound. However, a fragmented bullet would create additional missile paths. No fragment of bullet would have the energy to pass through the body and organs, creating the damage that the autopsy revealed, and then exit. Dr. Bell examined the chest cavity and the organs, and performed a laparotomy.

His autopsy showed that there were no fragments of bullet anywhere, including in the blood taken from the chest cavity. No expert has ever claimed that the bullet fragmented. Don Strother, a former Shelby County prosecutor who helped put Philip on death row, attempted to explain the smaller wound by arguing that "the bullet may have struck something, and only a fragment of the bullet exited the body."

The Court of Appeals rejected Strother's theory, stating, "If a .45 caliber hollow-point bullet had gone all the way through Lt. Oliver's chest and emerged in one piece, we have no doubt that the exit wound would have been larger than the entry wound." "Essentially, they are saying that Philip Workman is innocent," said Philip's lawyer, Jefferson Dorsey. Still, the 6th Circuit refused to order a hearing on ballistic issues.

The Prosecution's Other Key Element

Memphis native Harold Davis appeared, seemingly out of nowhere. As the prosecution's only witness at the trial, Harold Davis sealed Philip's fate. Harold Davis testified that he was parked outside the Wendy's restaurant when he saw the altercation and witnessed the shooting -- and that the shooter was Philip Workman. Harold Davis "virtually saw the whole thing," a prosecutor told jurors. Harold Davis testified that he saw Philip Workman intentionally point his gun at Lt. Oliver and shoot. Mr. Davis left the witness box to demonstrate how coldly and deliberately Philip had shot the veteran policeman. Mr. Davis' testimony did not match the crime scene. In fact, it matched only Officer Stoddard's account of the incident.

There was a problem with this "eyewitness testimony." The police report on the crime scene does not note the presence of Harold Davis. Five other people near the scene say they do not remember seeing Mr. Davis. Most notable is that Mr. Davis' car wasn't visible in photos taken of the crime scene, and it didn't show up in police diagrams. There is more. No one saw him, not even the police officer who had been warned to be on the lookout for an African-American man who had been robbing local Wendy's restaurants. "I didn't see him," Officer Stoddard admits. A source deeply involved in the police investigation told NewsChannel 5, "I never believed that Harold Davis was there.

Who is Harold Davis?

While no blame is to be put on Mr. Davis, a close examination of his testimony is imperative to finding the truth. Without Mr. Davis' testimony, Philip Workman would not be two months away from execution. Harold Davis came forward the day after the shooting, saying he had witnessed the whole thing. Davis was a drifter with a history of drug abuse. At the time of the crime, he was unemployed.

A close friend of Davis, Vivian Porter, told NewsChannel 5 that she's certain Davis lied. She said she was confident of this because she was with Harold Davis the night of the crime. Vivian Porter and Davis were out buying drugs when they were stopped by a police officer. As the officer walked up to their vehicle, he received an emergency call, returned to his car and sped off. Later, Vivian Porter and Harold Davis drove by the Wendy's crime scene, and realized the officer had been responding to the shooting. "It was kind of taped off, you know," Porter said. "So that told me that whatever had transpired on the parking lot had already happened."

Harold Davis' own sister, Jacqueline Davis Moden, told NewsChannel 5 that Davis was a drug addict who made money by "professional witnessing." She said he scanned news reports, looking for details about crimes. "Then claiming to have personally witnessed it" to collect the reward money. After he went to the police in Philip's case, Davis suddenly had money, she added. "A large sum of money, I don't mean five or ten dollars. But he had a substantial amount of money that was questionable to how he would have come about it."

There is no proof that Mr. Davis ever received a reward, even if Vivian Porter -- who now runs a Christian drug rehabilitation center -- added, "When he called to say he witnessed it, it had to have been about money. Because when you are in your addiction, sometimes you'll do anything to get your drugs." When Davis came to the police, he signed a statement describing the shooting in great detail. According to his own account, he would not have had a frontal view of the crime scene. How did he get those details?

In September 1999, Harold Davis suddenly recanted his statement, saying Philip Workman was not guilty of the murder of Lt. Ronald Oliver. Harold Davis admitted that he lied about Lt. Oliver's murder. Mr. Davis said that he didn't see it at all.

In October, defense lawyers Chris Minton and Jefferson Dorsey tracked him to a Phoenix motel. In a videotaped interview, Davis told the lawyers he was not in the Wendy's parking lot on the night of the shooting. In answer to the question: "Did you see Philip Workman shoot the police officer?" Davis replied "No, I didn't." Mr. Davis added that he had been drinking alcohol and smoking marijuana at the time. Harold Davis then signed a statement to recant.

In this statement, he said that Memphis authorities had coerced him to testify against Philip Workman. Davis said he picked Philip's picture from a photo lineup prepared by police because he had already seen the defendant's photograph in a Memphis newspaper. He added that he did not want to testify against Workman, but police threatened him: "I could get arrested as a hostile witness, and they could stick me in a jail until the trial was over with." Davis also said that prosecutors paid his hotel and food expenses while he was in Memphis for the trial.

Davis couldn't imagine Philip coming so close to death in a state that hadn't executed anyone in forty years. After being released from jail, Davis agreed to one last videotaped interview with defense lawyers. On that tape, the former prosecution witness breaks down into tears over the prospect of Philip's execution. "I don't want to see him die for something he didn't do," Davis cries. "I was hoping it wouldn't come to what it came to."

In the same videotape, Davis claims he was in the neighborhood when the shooting occurred, but didn't see it. This is in contradiction with Vivian Porter's testimony stating they drove by "later on during the crime scene." Still, for reasons he doesn't explain, Davis went to the police the next day. "They basically told me what happened," he says. "And would you be willing to say this happened. I said, I didn't see all that. They said, well this is what you are going to say."

Davis says he agreed. But when it came time for Philip's trial, Davis says he tried to back out. "I kept telling the prosecutor I really don't feel good about this," Davis adds. "Late one night, a big white guy came and knocked on my door. He said he had a message for me, and that if I changed my testimony in any kind of way, people I love and care about could disappear just like I could." Harold Davis has forsaken home and Tennessee for 19 years, staying on the road to avoid the danger he completely believes will follow him. "No man should be put to death based on perjured testimony," Philip's lawyer, Jefferson Dorsey, says. "We know that Harold Davis' testimony was perjured."

Officer Stoddard admits that Davis' claims trouble him somewhat. The retired officer says he pulled out a stack of old newspaper clippings after he dreamed that he saw Davis' car in a crime scene photo. "But it's not there in the picture?" a reporter asked him. "No," he replied, "And I don't recall seeing it. I just dreamed that I did."

Still, former prosecutor Don Strother denies anyone pressured Davis to say anything. In fact, he says Davis must be lying now. "I believe now, and I believed then, that Mr. Davis told the truth," Strother says. "I believe he testified under oath truthfully in court."

However, defense lawyers argue that Davis' emotions are real, and the crime scene evidence backs up his current claim that he wasn't even there. Mr. Dorsey says this raises a disturbing question about police investigation. "Why go to all the trouble to threaten, to coerce somebody into committing perjury in a capital trial? The only solution in my mind is, there is something they feel the need to hide."

If Philip Workman didn't fire the fatal shot, who did?

Witness Who Never Testified

In a trial transcript of over 1,000 pages, Officers Stoddard and Parker and prosecutors repeatedly said only two people fired guns outside the restaurant on the night Lt. Ronald Oliver was killed -- Philip Workman, the murderer, and Lt. Oliver, the victim.

A civilian witness named Steve Craig went to the crime scene when he saw his friend, Officer Stoddard, headed that way. Mr. Craig stayed inside his vehicle and ducked down for cover during part of the shooting. Unfortunately, he was unable to testify at the trial due to a sudden hospitalization for appendicitis.

Four years ago, in a sworn affidavit, Steve Craig made a statement that places a firing shotgun in the vicinity. More precisely, Craig said he saw Officer Parker fire a shotgun at Workman. An article in the Memphis Commercial-Appeal also reported that police say Parker "exchanged shots" with Workman. Steve Craig also stated that police told him, "there was no need to talk about this ... unless it was with someone from the department."

This statement raises questions about Officer Parker's trial testimony. Officer Parker testified at Philip's trial that he couldn't reach his pistol to return fire. Parker is now an assistant U.S. Attorney. Officer Parker told police investigators that he saw Philip Workman shoot Officer Stoddard after Lt. Oliver hit the ground, mortally wounded. That statement was false.

At trial, Officer Parker said he was mistaken, after learning Officer Stoddard already had been shot by the time Lt. Oliver went down. Emergency room treatment records show that Philip had shotgun wounds to his buttocks. It would not have been impossible to identify the bullet that wounded him. No tests were done because it was assumed that the gun and bullets belonged to Lt. Oliver.

The type of shotgun shell used by police had nine pellets. Each metal pellet, called 00 (double-aught) buckshot, is the shape and size of a large pea. The metal balls stay together when shot at close range. They spread out and hit multiple targets if shot from a distance.

A ballistics expert who filed an affidavit for Philip Workman in an appeal said Oliver was killed by a shot that went in one side of his upper torso and out the other. "It's pretty common for 00 buckshot to exit the body," said a wound ballistics consultant not connected to the case. "Front-to-back (entry and exit wounds) is more common than side-to-side."

Officer Parker was also connected to the shotgun in a police report written by Officer Otis W. Stewart 18 years ago. Stewart said he saw Parker carrying a shotgun as he ran across the parking lot after Philip. The police reports drafted immediately after the incident state that there was an exchange of gunfire between police and Philip, and the "officers" were firing.

Police Officers Stoddard and Parker remained mute on the subject at the trial. No retrial has been possible, because at the time of Mr. Craig's affidavit, Harold Davis had not yet recanted his perjured testimony. The 6th U.S. Circuit Court of Appeals found the allegations "troubling," but decided they weren't relevant because Craig said he saw Parker shoot only after Lt. Oliver had been shot. Philip's lawyer, Jefferson Dorsey, says: "It's the middle of a crime scene. Weapons are being fired. I'm not sure the officers on the scene knew exactly what was going on -- to be charitable to them. Maybe they believed they didn't fire."

In a struggle, many things can happen. What if Lt. Oliver was killed by "friendly fire"? Jurors who sentenced Workman to death never heard evidence that someone else may have fired the fatal shot, and they certainly never knew that the only witness who testified that he saw Workman shoot the officer may have been coerced by police into giving false testimony.

Former prosecutor Don Strother was asked if it mattered who fired the fatal shot, if Workman was responsible for the situation that led to Oliver's death. He replied, "That would be for the jury to decide." In October 1999, Lida Springfield, who was a juror at the trial, said, "Now that there is doubt, there is no way that I could have voted for the death penalty."

Philip's lawyers have gotten affidavits from five of the twelve trial jurors who said they would not have voted to sentence Philip to death if they had known that recently-conducted ballistics analyses cast doubt on whether he fired the fatal shot.

What has happened in these last few months? The 6th US Circuit Court of Appeals in Cincinnati ruled in May 1999 that if Philip has "claims of actual innocence, they were discovered too late in the day for a new trial motion."

The Appeals Court recommended that Philip present his claims of innocence to Governor Sundquist, in a request for executive clemency. As a defendant gets further into the appeals process, the courts actually make it harder to present new evidence. Nashville lawyer and legal scholar David Raybin said, "It's very difficult to get a judge to buy recanted testimony. The biggest obstacle would be to convince a judge why this person recanted." He added, "One of the most important questions is whether or not the government was aware of, or responsible for, incorrect testimony."

It is unusual for the head of the state post-conviction defender's office to take over the legal lead in a death penalty case, but that is exactly what Donald Dawson decided to do. He asked the Supreme Court to request clemency from the Governor for Philip Workman, according to court documents. "You can close your eyes to the evidence that perjured testimony condemned Workman, and order Tennessee's first execution since Dwight Eisenhower was president," he said. "Or you can acknowledge that no man should be sent to his death based on false evidence."

Donald Dawson said he took over the lead because he was appalled by the speed at which this case was moving toward execution. His assistants had previously handled the case. "There is clear evidence that perjured testimony was used to secure a guilty verdict and death sentence," he added. "I felt it was necessary to make a plea to the court."

In this plea, Dawson asked the Supreme Court to recommend that Governor Don Sundquist commute Philip's death sentence to life imprisonment. "You, in every literal sense, hold Philip's life in your hands," Mr. Dawson said. One judge replied that Dawson "unfortunately ... injected personal opinion, knowledge and belief" into his plea and "purported to lecture this court concerning its own sense of conscience, duty and obligation." Dawson replied in turn, "Somebody needs to remind the attorney general's office that they have a duty to do justice, not just to kill Philip Workman." Now, Philip Workman has exhausted all his legal appeals.

There are many people involved in trying to stop Philip's execution. Amnesty International recently sent out an "Urgent Action Request" asking people to send letters, faxes and e-mails to Governor Sundquist requesting clemency on Philip's behalf. The addresses will follow this article.

Nationally known death penalty lawyer Lawrence Marshall is also getting involved in the effort to save Philip from execution. Marshall, a Northwestern University Law School professor who has helped to free ten men from Illinois' death row since 1987, has met, consulted and held a press conference with Philip's lawyers. Marshall reviewed the evidence against Philip, and concluded that executing him "would be a grave miscarriage of justice."

Tim Chavez, a columnist for The Tennessean, is an avid supporter, devoting many columns to the questions arising from Philip's case. Local newspapers and the New York Times Sunday Magazine have published articles about Philip.

A local television investigative reporter, Phil Williams, who convinced his station to support an in-depth series on Philip's plight, has also helped the mission to stop Philip's execution. The series aired for several days on News Channel 5, a Nashville CBS affiliate, and Williams continues to televise reports. The station has devoted several hours of broadcast time to the story, including an interview with Philip and four call-in shows devoted to his case.

Later, Phil Williams used several pieces he had filmed to create a half-hour documentary, which aired in early January of 2000. Copies are available for private use.

Philip's attorneys recently met with Lt. Oliver's only child, a daughter, and her mother, Oliver's ex-wife. Both women strongly believe that Philip Workman should not be executed. Oliver's daughter even videotaped a statement asking the Governor to grant clemency and commute Philip's sentence. Even with media and legal support, the only viable avenue to save Philip's life is through clemency. The Governor of Tennessee is probably the only person who can stop this irrevocable injustice. It is urgent that he hear from people everywhere who oppose this execution.

Philip Ray Workman (1953 - 9 May 2007) was a death row inmate executed in Tennessee on May 9, 2007.[1] He was convicted in 1982 for the murder of a police officer following a botched robbery of a Wendy's restaurant in Memphis, Tennessee, and sentenced to death by lethal injection.

Early life

Born in 1953 at Fort Campbell, Ky., Philip Workman grew up with his parents on various Army bases. Later he joined the Army. Shortly after his 1973 discharge, Workman was sentenced to 5 years in prison in Georgia for burglary and drug possession. He served 25 months.[2]

1981 Armed robbery and death of Lt. Oliver
In 1981, at 28 years old, Workman was living with his wife and 8-year-old daughter in Columbus, Georgia and was heavily addicted to cocaine.[2] That summer, he hitchhiked to Memphis where, on August 5, 1981, he robbed a Wendy’s restaurant with a .45 caliber semi-automatic pistol.

During the robbery, an employee of the restaurant triggered a silent alarm after Workman granted her request to stand up to relieve a cramp in her leg.[1] Three Memphis police officers, Ronald Oliver, Aubrey Stoddard, and Steven Parker, responded to the alarm. Upon their arrival, Workman attempted to flee across a nearby car park, but tripped on a curb and was cornered by the officers.

Workman claims he then attempted to surrender but, as he was pulling his gun from his pants to give it to the officers, he was struck on the head with a flashlight. As a result of the blow, Workman claims that he involuntarily discharged the gun twice, once in the air, and then at a person who had fired at him. [3]

Workman escaped the immediate melee, but a civilian found him hiding under a truck. He was covered with blood from his head wound, and had a shotgun wound to his buttocks. At the scene of the shootout, Lt. Ronald Oliver lay dying from a bullet that passed completely through his body.

1982 Trial

Workman was charged with the murder of Lt. Oliver. At the 1982 trial, Officers Stoddard and Parker testified that they had not fired their weapons, but that they had not seen Workman shoot Lt. Oliver. The prosecution presented testimony from an alleged eyewitness, Harold Davis, who stated that he had parked his car in the restaurant car park and was three meters away when he saw Workman shoot Oliver. The defense lawyers accepted the police version, conducted no forensic or ballistics analysis and did not investigate Davis. [3]

At the sentencing phase of the trial, they presented no mitigating evidence, for example of the physical abuse Workman had suffered as a child, and his drug addiction as an adult.[3] Workman was found guilty of murder during the commission of a felony by the jury (under the "felony murder" rule). The jury recommended a sentence of death, finding five statutory aggravating circumstances:

a) The defendant knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder (Tenn. Code Ann. § 39-2-203(i)(3));

b) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrestor prosecution of the defendant or another (Tenn. Code Ann. § 39-2-203(i)(6));

c) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, the offense of robbery (Tenn. Code Ann. § 39-2-203(i)(7));

d) The murder was committed by the defendant while in lawful custody or in a place of lawful confinement or during the defendant's escape from lawful custody or from a lawful place of confinement (Tenn. Code Ann. § 39-2- 203(i)(8)); and

e) The murder was committed against any law enforcement officer, corrections official, corrections employee or firefighter, who was engaged in the performance of official duties, and the defendant knew or reasonably should have known that such victim was a law enforcement officer, corrections official, corrections employee or firefighter engaged in the performance of official duties (Tenn. Code Ann. § 39-2-203(i)(9)).

Testimony of Harold Davis

At the 1982 trial, the case of the prosecution rested heavily on the testimony of Harold Davis, who claimed that he had been just 3 meters away from the crime scene and saw Philip Workman shoot Lt. Oliver.

In November 1999, Harold Davis retracted his testimony, claiming that he called in the false lead to collect money to support his drug habit. [3] He later passed a lie detector test confirming that he did not witness the actual shooting. Davis claims that he was threatened that harm would come to his family members should he change his testimony.[2]

Several other eyewitnesses have testified that they did not see Davis at the scene and the police report on the crime scene never noted Davis' presence.[4] Steve Craig, an eye witness to the shooting who did not testify at the trial due to illness, signed a statement in 1995 that he had a clear view of the car park and that he had not seen Davis.

Subsequent appellate proceedings, however, failed to establish the falsity of Harold Davis' original testimony. According to the Tennessee Court of Criminal Appeals, Davis' testimony at a 2002 hearing can be "best summarized" by the following exchange:

Prosecutor: You’re not saying you lied, right?
Davis: Right.
Prosecutor: Ok. In the trial, you’re not saying-
Davis: Right.
Prosecutor: -You lied about that?
Davis: Right. I’m not saying that.
Prosecutor: You just don’t know.
Davis: I just don’t remember. I just don’t know . . . .[5]

The U.S. Court of Appeals, reviewing previous appellate decisions to decide a request for a stay of execution on May 4, 2007, found that, "The Tennessee courts . . . concluded that [the evidence] did not show that Davis lied at the trial. The state trial court found that the testimony did not amount to a recantation and did not show that Davis had lied during the trial."[5]

Ballistics evidence

Ballistics experts have questioned whether the bullet which killed Lt. Oliver could have come from Workman's gun. Many years after the trial, Dr. Cyril Wecht, a past president of the American Board of Legal Medicine and former lead consultant on the U.S. House of Representatives Subcommittee on Assassins, has testified that, "[I]t is my professional opinion, based upon a reasonable degree of medical certainty, that the gunshot wound to [Lt.] Ronald D. Oliver is not consistent with the type of ammunition used by Mr. Philip R. Workman. I do not believe that it was Mr. Workman's gun that fired the shot that fatally wounded [Lt.] Oliver." As Dr. Wecht was giving evidence many years subsequent to the death of Lt. Oliver, he did not examine the body in person. Rather, his professional opinion was given on the basis of studying photographs of the deceased.

Dr. Wecht based his opinion on the fact that Workman was using a .45 caliber gun and hollow point ammunition and that such bullets fired from such a gun more than 90% of the time do not pass through the body but remain within the shooting victim. Dr. Wecht's professional opinion was that when hollow point ammunition fired from a .45 caliber gun does pass through the body of the victim, the exit wound is almost always larger than the entry wound. According to medical examiner Dr. James Bell, the exit wound on Lt. Oliver's body was smaller than the entry wound. Such a wound is consistent with the .38 caliber weapons being fired by the police.[4]

At the 1981 trial, Officers Stoddard and Parker repeatedly testified that only Workman and Oliver fired guns and that therefore no one else but Workman could have shot Oliver. However, Steve Craig claims that he had seen Officer Parker fire his gun at Workman, but was told by police that "there was no need to talk about this ... unless it was with someone from the department."

In January 2005, a retired Memphis police officer who went to jail for manufacturing phony drivers' certificates swore in an affidavit that the Memphis police covered up details of Oliver's shooting. [6] Neither Officer Stoddard's nor Officer Parker's revolvers were examined in the course of the criminal investigation.

Doubts of jurors, prosecutors, judges, and the victim's family

Five of the jurors which convicted Workman in 1982 have since signed affidavits renouncing either the sentence or the verdict or both.[6] Wardie Parks, a member of the 1982 jury, has stated that, "If the new evidence I reviewed had been presented at Workman's trial...I would have had a reasonable doubt whether Workman was guilty of first-degree felony murder, and I would have voted to acquit him of that charge."[7] Parks has said that he did not hear any ballistics evidence during the original trial and believed the testimony of eyewitness Harold Davis.

In 2000, two justices on the Tennessee Supreme Court, Justice Birch and Justice Drowata, expressed their concern, although were powerless to consider new evidence which might overturn the original verdict. Justice Birch called on the Governor of Tennessee, Phil Bredesen, to commute Workman's sentence.

Justice Drowata remarked, "The circumstances of this case are by no means as egregious as most of the death penalty cases I have reviewed [and] are less egregious than many of the life sentences I have reviewed . . . The date set for execution . . . affords the Governor sufficient time to carefully consider any executive clemency application that may be filed".[3]

In 2000, Lt. Oliver's daughter and the former District Attorney who prosecuted Workman called on the Governor to grant him clemency.

Appellate proceedings

On March 30, 2001, just 37 minutes before Workman was scheduled to be executed, the Tennessee Supreme Court overturned a decision by Judge John P. Colton, Jr. of the Shelby County Criminal Court to deny a writ of error coram nobis. The Supreme Court order stated that "if (Workman) did not fire that shot, he is not guilty of the crime for which he is scheduled to be put to death. ... No court in this state has actually held a hearing to fully evaluate the strength of these claims."[7]

The subsequent appellate proceeding was presided over by Judge Colton, who had also presided over the 1982 trial in which Workman was originally convicted and sentenced to death. Following a series of acts deemed prejudicial to the defense, Workman's attorneys asked Judge Colton to remove himself from the case, but this was denied and the hearing proceeded with Judge Colton presiding.[7]

Observers contend that the subsequent trial was conducted in a manner biased against Workman, citing in particular the failure of Judge Colton to protect Mr. Davis and Dr. Wecht from abusive questioning by the [District Attorney].[7] Judge Colton also disallowed Wardie Parks, a member of the 1982 jury who has since renounced his verdict, to speak as a witness of new evidence.

On January 7, 2002, Judge Colton ruled against Workman, stating that the "new evidence presented by lawyers for death row inmate Philip Workman is insufficient to warrant a new trial."[7] Judge Colton found that Harold Davis’ statements “[did] not amount to a recantation of his original trial testimony,” “were neither clear nor persuasive,” and that “[t]he only definitive statement made by Harold Davis was that he did not clearly remember the events surrounding the death of Lieutenant Ronald Oliver.”[8]

With regard to the new ballistics information, Judge Colton found that “the jury essentially heard, through the testimony of [F.B.I.] Agent [Gerald] Wilkes, the same information provided by Dr. Wecht.” Judge Colton noted that, while Dr. Wecht opined that the .45 caliber bullet fired from Workman’s gun and recovered from the scene was not the bullet that killed Lieutenant Oliver and that it was unlikely that a .45 caliber aluminum-jacketed bullet would create an entrance wound considerably larger than the exit wound, he also admitted that “he could not conclusively exclude the possibility that a .45 caliber bullet caused the fatal wound,” and “that it was possible for a .45 caliber, hollow-point bullet to create a smaller exit than entrance wound.”

Judge Colton found “no testimony, including that of Dr. Wecht, which affirmatively rules out the possibility that one of the other three to five bullets shot by Workman caused the fatal injuries,” and that “the jury would have still heard the defendant’s admission that he fired his weapon and that he indeed pointed the weapon at the victim.”[8]

At the hearing, the “friendly fire” theory of how Lt. Oliver died was rejected by Memphis Medical Examiner O.C. Smith. A year later, Smith was found near his office with bound in barbed wire with a live bomb strapped to his neck. In 2005, Smith was indicted on charges that he staged an incident. At the trial, a psychologist testified that Smith may be suffering from a disorder that compels him to make up elaborate lies for attention.[6] Observers subsequently questioned the veracity of testimony provided by Smith at Workman's hearing.

Final days

On Friday, May 4, the U.S. Court of Appeals for the Sixth Circuit refused, by a two-to-one decision, to grant a stay of execution for Workman. The stay had be requested on the grounds that "the Attorney General for the State of Tennessee . . . perpetrated a fraud upon the district court during Workman’s habeas corpus proceedings".

The majority opinion found that "On this record, Workman has not met his burden of showing a likelihood of success in demonstrating that the district court abused its discretion. Nearly twenty-five years after Workman’s capital sentence and five stays of execution later, both the state and the public have an interest in finality which, if not deserving of respect yet, may never receive respect."[5]

On Friday, May 4, a U.S. District Court Judge issued a Temporary Restraining Order precluding the State of Tennessee from executing Workman until a preliminary injunction hearing assesses the constitutionality of Tennessee's revised procedure for administering lethal injections. However, this restraining order was vacated by a two-to-one decision of the U.S. Court for Appeals for the Sixth Circuit on Monday, May 7 and Workman was moved to death watch.[4]

The decision to vacate the restraining order was stridently criticized, on both procedural and substantive grounds, by the dissenting Judge Cole. Judge Cole wrote, "The majority’s opinion rests on a profound jurisdictional defect: There is no appealable order before this Court. The district court issued a temporary restraining order, not a preliminary injunction . . . The district court’s TRO cannot be magically transformed into a preliminary injunction, which is an appealable order, even though the State and a majority of this Court may wish it."[9]

Last meal request: Vegetarian pizza for the homeless
For his last meal, Workman asked that a large vegetarian pizza be given to a homeless person. The prison officials denied his request, and Workman refused to eat anything.

On May 9th, homeless shelters across Tennessee received massive amounts of vegetarian pizzas from people all over the country honoring Workman's last meal request. "Philip Workman was trying to do a good deed and no one would help him," said one woman who, together with friends, donated $1200 worth of pizzas to Nashville's Rescue Mission.

People for the Ethical Treatment of Animals (PETA) President Ingrid Newkirk, who donated 15 veggie pizzas, commented that "Workman's act was selfless, and kindness to all living beings is a virtue." Marvin Champion, an employee of Nashville's Rescue Mission, remarked "I used to be homeless, so I know how rough it gets. I seen some bad times -- not having enough food, the cupboards are bare. But we got pizza to feed enough people for awhile."[10][11][12]

Execution

At 10:00 p.m. central time, the Supreme Court refused to hear any appeals. At 12:15 a.m. on May 9, 2007, the Tennessee state Supreme Court refused to hear his final appeal, which requested more time for the defense attorneys to review the injection procedures.

When asked by Warden Ricky Bell what his last words would be, he stated "I've prayed to the Lord Jesus Christ not to lay charge of my death to any man." After 2 minutes had passed the start of the injections, he said "I commend my spirit into your hands, Lord Jesus Christ." His head then drifted to the left as he fell unconscious.

Philip Workman was pronounced dead at 1:38 AM (CDT) after a 17 minute procedure. [1] Prison officials made the announcement that Workman had been executed at 1:50 a.m. on May 9, 2007.[13]

Post-mortem controversy

Although, prior to his execution, Philip Workman was successful in obtaining a court order against autopsy, his demand that his body not be subjected to examination was still scheduled to be legally challenged in the days following his death. At issue was the legality of drawing blood and other bodily fluids from Workman's body.

The position of state medical examiner Bruce Levy was that "If the state is going to be executing people, as the medical examiner, it is my responsibility to ensure that the executions are carried out according to state law." Workman opposed any examination of his body after death for religious reasons. [14]

Notes

1. Schrade (et al.), Brad. "1:50 a.m.: Workman executed", Tennessean, May 9, 2007. Retrieved on 2007-05-10.
2. The Tennessean. "TENNESSE:-execution is stayed", Cell Door Magazine, March 30, 2001. Retrieved on 2007-05-11.
3. Amnesty International. "USA (Tennessee): Death penalty / Legal concern: Philip Ray Workman", January 19, 2000. Retrieved on 2007-05-10.
4. Tennessee Coalition to Abolish State Killing. "Philip Workman Executed in Spite of Serious Doubt", May 9, 2007. Retrieved on 2007-05-10.
5. United States Court of Appeals for the Sixth Circuit. "Workman vs. Bell: Decision of U.S. Court of Appeals for the 6th Circuit to Refuse Stay of Execution", May 4, 2007. Retrieved on 2007-05-10.
6. Fantz, Ashley. "Tennessee case twists and turns toward death", CNN, May 4, 2007. Retrieved on 2007-05-10. ^ a b c d e Tennessee Coalition to Abolish State Killing. "Executing Injustice: Did Judge John Colton Prejudice Philip Workman's 2001 Evidentiary hearing?", Aug. 25, 2004. Retrieved on 2007-05-10.
7. Supreme Court of Tennessee. "Workman vs. State of Tennessee: Motion of the State of Tennessee to Dissolve Stay and Reset Date of Execution", January 10, 2002. Retrieved on 2007-05-12.
8. United States Court of Appeals for the Sixth Circuit. "Decision of U.S. Court of Appeals for the 6th Circuit to Overturn Temporary Restraining Order", May 4, 2007. Retrieved on 2007-05-10.
9. Fantz, Ashley. "Executed man's last request honored -- pizza for homeless", CNN, May 9, 2007. Retrieved on 2007-05-10.
10. Alligood, Leon. "Workman's bequest sends pizza to homeless", Tennessean, May 10, 2007. Retrieved on 2007-05-11. ^
11. Daily Mail staff. "Hundreds of homeless enjoy pizza feast as condemned man's last wish", The Daily Mail, May 10, 2007. Retrieved on 2007-05-12.
12. Schrade (et al.), Brad. "1:50 a.m.: Workman executed, prison officials say", Tennessean, May 8, 2007. Retrieved on 2007-05-11.
13. Burke, Sheila. "State doctor sees need for autopsy of Workman", Tennessean, May 10, 2007. Retrieved on 2007-05-11.

Wikipedia.org

State v. Workman, 667 S.W.2d 44 (Tenn. 1984) (Direct Appeal).

Defendant was convicted in the Criminal Court, Shelby County, William H. Williams, J., of first-degree murder in perpetration of a robbery, and he was sentenced to death. Defendant appealed.

The Supreme Court, Cooper, J., held that: (1) evidence of self-defense was irrelevant in felony-murder context; (2) evidence established several statutory aggravating circumstances, warranting imposition of death penalty; (3) statement given by defendant to police officers was knowingly and freely given after defendant was advised of his Miranda rights; (4) lineup identification was not unduly suggestive; (5) evidence established that defendant committed murder during his escape from lawful custody; (6) trial court did not abuse its discretion in denying individual voir dire; (7) prospective juror who stated that she would automatically refuse to consider capital punishment was properly challenged for cause; (8) State's argument during sentencing phase of trial regarding defendant's history of prior criminal activity was proper response to issue raised by defendant; and (9) jury was not shown to have improperly considered irrelevant matters in imposing death penalty. Affirmed. Brock, J., concurred in part and dissented in part.

COOPER, Justice.

The defendant, Phillip Workman, has appealed his conviction for murder in the first degree in the perpetration of a robbery, and the sentence of death. He questions the sufficiency of the convicting evidence and the evidence supporting the aggravating circumstances found by the jury, the rulings by the trial court on the efficacy of the indictment, on voir dire, on the admission of evidence, on objections to argument of the state in the sentencing phase of the trial, and the court's instructions to the jury. Defendant also insists that the Tennessee Death Penalty Act is unconstitutional, both in its content and how it was applied in the present case.

After consideration of the several issues and of the entire record, we are of the opinion that no reversible error was committed in the trial, that the verdict and sentence are sustained by the evidence, and that the sentence of death under the circumstances of this case is in no way arbitrary or disproportionate. See State v. Harries, 657 S.W.2d 414 (Tenn.1983); State v. Laney, 654 S.W.2d 383 (Tenn.1983); Houston v. State, 593 S.W.2d 267 (Tenn.1980), cert. denied, 449 U.S. 891, 101 S.Ct. 251, 66 L.Ed.2d 117.

There is little controversy concerning the material facts. The murder for which defendant stands convicted occurred shortly after 10:00 p.m. on August 5, 1981. Defendant entered Wendy's restaurant on Thomas Street in Memphis, Tennessee, just before closing time. He purchased food at the counter and dawdled over it until the restaurant closed.

The defendant then, at gunpoint, herded the employees and a customer of the restaurant into the manager's office, where he told the manager to put the day's receipts (around $1,170.00) into a bag. Defendant took an employee's car keys, ordered everyone to remain in the office, locked the door and left. During the robbery, the defendant informed the employees that he had an accomplice, not as “cool” as he was, who would shoot if any employee disregarded defendant's orders.

Unknown to the defendant, an employee had tripped the restaurant's silent alarm. Lt. Ronald Oliver of the Memphis Police Department met the defendant, just as the defendant was leaving the restaurant. Just what occurred at that time is not clear in the record.

There is testimony, however, that Lt. Oliver and the defendant left the restaurant together. Thereafter, the defendant broke away from Lt. Oliver and ran. When defendant did not stop at Lt. Oliver's command, Lt. Oliver and Officer Aubrey Stoddard grabbed the defendant. The defendant broke free of the officers, shot Lt. Oliver in the chest and Officer Stoddard in the arm, fired a second shot at Stoddard, and fled toward the auto parts store next to Wendy's. The defendant paused in his flight long enough to fire one bullet at a third police officer, who had arrived at the crime scene. Lt. Oliver died as the result of the chest wound.

Police officers sealed off the area behind Wendy's and the auto parts store. After an extensive search of the area by police using attack dogs, defendant was found hiding in the underbrush. His .45 calibre pistol was found nearby. Defendant was taken from the crime scene to the hospital in a squad car for treatment of cuts and scratches on his face and body, dog bites, and wounds to his buttocks.

On the way and after being advised of his Miranda rights, defendant told the officers he had robbed Wendy's because he needed money to leave town. He gave the officers a false name and address, later explaining that he wanted to avoid embarrassment to his family.

Defendant was treated in the hospital emergency room and released to the police. Very shortly thereafter, defendant was viewed in a “lineup” by the employees of Wendy's, who had been locked in the manager's office in the course of the robbery. Each of the employees identified defendant as the robber. At the trial, though defendant's appearance was different, the employees identified defendant as the robber.

The defendant testified at the trial and admitted both the robbery and the killing, but tried to show he was a drug addict and under the influence of drugs at the time of the crimes. He insisted he was trying to give up when he was “hit or grabbed” by the officers, and that it was after that that he shot Stoddard and Oliver. He also testified that he could only remember “bits” and “pieces” of the events of the evening.

On the introduction of evidence that defendant was holding his head as he fled the murder scene and that a flashlight was found on the Wendy's parking lot, the defense filed a motion that the state produce any evidence it had that the defendant had been hit in the head with a flashlight by the victim. The evidence was to be used by the defendant either to show self-defense or to mitigate the killing by proving defendant was stunned when he pulled the trigger.

The trial court denied the motion, correctly pointing out that the evidence was irrelevant to defendant's guilt or innocence under Smith v. State, 209 Tenn. 499, 354 S.W.2d 450 (1961) (Self-defense no defense to felony murder), and while it would bear on mitigating circumstances, the issue was moot in light of the admission by the state that it had no such evidence.

Defendant also sought to have excluded a collective exhibit of photographs of the crime scene on the ground that the witness was unable to match the photographs of a spent cartridge case with the cartridge case which had been filed as an exhibit.

The trial court admitted the photographs after the “witness” testified it was a fair, accurate, and exact photo of what he saw in the parking lot north of Wendy's. We see no error in the trial court's ruling. The Witness's inability to link the photograph to a real exhibit would go to its weight, not its admissibility. See Hughes v. State, 126 Tenn. 40, 148 S.W. 543, 549 (1912).

The jury found from the evidence that the defendant was guilty of murder in the first degree in the perpetration of a robbery. In a separate proceeding, the jury imposed the sentence of death on defendant.

In this state a jury may impose the death penalty on a defendant only upon its finding that one or more aggravating circumstances listed in the statute are present, and that such circumstance or circumstances are not outweighed by mitigating circumstances. See T.C.A. § 39-2-203(i). Such a finding was made by the jury in this case. In addition to finding that defendant was guilty of murder in the first degree in the perpetration of a robbery, a statutory aggravating circumstance,FN1 the jury found defendant (a) “knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during his act of murder;” FN2 (b) the murder was committed “for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another;” FN3 (c) the murder was committed by the defendant “while he was in lawful custody or in a place of lawful confinement or during his escape from lawful custody or from a place of lawful confinement;” FN4 and (d) the murder was committed against a peace officer, who was engaged in the performance of his duties, and the defendant knew or reasonably should have known that such victim was a peace officer engaged in the performance of his duties.FN5

In an issue which has a bearing on the overriding issue of sufficiency of the convicting evidence, the defendant insists that the statement given by defendant to the police officers and considered by the jury was inadmissible. Defendant argues that at the time he gave the statement, he was in no condition to waive his Miranda rights as he was in pain and had been struck on the head. We find no merit in this issue. The evidence indicates that defendant suffered no material injury in his escape and capture. Further, on this point the hospital records indicate that defendant was alert and oriented.

The information in the records was buttressed by the testimony of the officers to whom the statement was made, and also by defendant's efforts to establish a false identity for himself in an effort to protect his family from any “fall out” from his actions on the night of August 5, 1981. With the evidence in this state, we can not say it preponderates against the trial court's ruling that defendant, after having been advised of his Miranda rights, knowingly and freely gave the statement to the police officers and that it was admissible in evidence.

The defendant also insists that the lineup identification was suggestive and that, as a consequence, it and the subsequent in-court identification of the defendant as the perpetrator should have been suppressed. The basis of the defendant's contention is that the defendant was the only person in the lineup with bruises and cuts on his face. The photograph of the lineup shows that the participants were sufficiently similar in appearance to preclude any aura of suggestiveness, otherwise.

The record shows that at the time the witnesses saw the defendant originally, he had no marks on his face, and they had no reason to expect that the person to be identified in the lineup would have such marks. Furthermore, there is evidence that the bruises and cuts on the defendant's face made the identification of the defendant more difficult.

The record also shows that Wendy's employees had the opportunity to view the defendant inside the lighted restaurant for a relatively long period of time. As a result, they supplied law enforcement officers with an accurate and detailed description of the defendant. The lineup was held only a few hours after the crime, when events were fresh in the minds of the witnesses, and each of them was positive in identifying the defendant as the perpetrator.

These are all positive factors that have a bearing on the reliability of the identification of the defendant as the perpetrator and support the trial court's finding that the identification of the defendant by the witnesses that viewed the lineup and testified in the trial was sufficiently reliable to withstand a due process attack despite any suggestiveness that might have resulted from the lineup procedure. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In our opinion, defendant's guilt of murder in the first degree in the perpetration of a robbery was proved beyond a reasonable doubt. As to the findings of the jury in the sentencing hearing, the defendant questions only the finding that defendant committed the murder “during his escape from lawful custody.” The defendant argues that he was never in lawful custody and could not therefore be guilty of this aggravated circumstance.

On this point, the evidence shows that Lt. Oliver and the defendant came out of Wendy's together, and that the defendant did not make a break for freedom until outside the building. After that, Stoddard and Oliver had the defendant in their grasp immediately before the defendant shot and killed Lt. Oliver.

Evidently, the jury found that Lt. Oliver had arrested the defendant inside of Wendy's and had him in custody when defendant made his first break for freedom. We think this is sufficient to justify the jury finding that defendant committed the murder “during his escape from lawful custody.” But, even if it were not, the validity of the death sentence would not be affected in view of the overwhelming evidence of defendant's guilt and the numerous other aggravating circumstances found by the jury, which are admittedly supported by the requisite evidence, and the paucity of evidence of mitigating circumstances.

Finally, the defendant insists that the jury considered irrelevant matters and that, as a consequence, a new trial should be granted. The record shows that at the hearing on the motion for a new trial, the defendant presented evidence that the jury had discussed parole time for a life sentence, the possibility defendant would never be executed, and the consequences if the jury could not agree on a verdict.

The state's witnesses (five jurors) admitted some talk of these matters ( e.g., “personal feelings,” “how many years they would be on death row,” parole in a hypothetical situation) but affirmed that they relied solely on the law in reaching the sentence.

The trial judge found that the defendant was trying to impeach the verdict and disallowed an offer of proof that one juror was affected by the irrelevant talk, and denied defendant's motion for a new trial. We concur in his action. See Montgomery v. State, 556 S.W.2d 559, 561 (Tenn.Cr.App.1977).

The defendant's conviction of first degree murder and sentence of death are affirmed. The death sentence will be carried out as provided by law on the 29th day of May, 1984, unless stayed by appropriate authority. Costs are adjudged against defendant. I am authorized to state that Justice Brock concurs in the affirmance of conviction but dissents from the imposition of the death penalty for the reasons expressed in his dissent in State v. Tennessee v. Dicks, 615 S.W.2d 126, 132 (Tenn.1981). FONES, C.J., and HARBISON and DROWOTA, JJ., concur.

Workman v. State, 868 S.W.2d 705 (Tenn.Cr. App. 1993) (PCR).

After defendant's capital murder conviction was affirmed on direct appeal, 667 S.W.2d 44, defendant petitioned for postconviction relief. The Circuit Court, Shelby County, John P. Colton, Jr., J., summarily dismissed petition, and defendant appealed. The Court of Criminal Appeals, Jones, J., held that: (1) defendant failed to show that state did not disclose exculpatory evidence; (2) defendant failed to show that state advised witnesses not to talk to defense representative; and (3) consideration of underlying felony as aggravating circumstance in sentencing defendant for felony-murder was harmless error. Affirmed.

JONES, Judge.

The appellant, Philip R. Workman,FN1 appeals of right from a judgment of the trial court summarily dismissing his suit for post-conviction relief. The trial court ruled that the grounds raised in the petition had either been previously determined or waived. As to those issues that were deemed waived, the trial court found that the appellant failed to give an adequate reason for failing to raise the issues on direct appeal or in the first post-conviction suit.

FN1. The appellant was convicted under the name Phillip Ray Workman. His first Post-Conviction suit was styled “Phillip Ray Workman v. State.” The appellant styled this suit “Philip R. Workman v. State.” It is the policy of this Court to use the name appearing in the pleadings filed in the trial court on appeal.

ISSUES PRESENTED FOR REVIEW

The appellant raised three issues for review. Each issue has a series of sub-issues. The issues raised are:

The criminal court erred in dismissing the petition without holding an evidentiary hearing because the petition alleged facts entitling him to an evidentiary hearing on the issue of whether his conviction and sentence amount to a fundamental miscarriage of justice rendering the waiver doctrine inapplicable to certain claims and factual bases raised in the petition.

The criminal court erred in dismissing petitioner's petition without holding an evidentiary hearing because the petition alleged facts entitling him to an evidentiary hearing on the issue of whether grounds asserted therein were waived. State v. Middlebrooks, 840 S.W.2d 317, (Tenn.1992), announced “new law” during the pendency of this appeal that renders petitioner's death sentence constitutionally infirm.

HISTORY OF LEGAL PROCEEDINGS

The appellant was convicted of murder in the first degree in the perpetration of a robbery and sentenced to death. The jury found five aggravating circumstances:

a.) The defendant knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder, Tenn.Code Ann. § 39-2-203(i)(3);

b.) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another, Tenn.Code Ann. § 39-2-203(i)(6);

c.) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, the offense of robbery, Tenn.Code Ann. § 39-2-203(i)(7);

d.) The murder was committed by the defendant while in lawful custody or in a place of lawful confinement or during the defendant's escape from lawful custody or from a lawful place of confinement, Tenn.Code Ann. § 39-2-203(i)(8); and

e.) The murder was committed against any law enforcement officer, corrections official, corrections employee or firefighter, who was engaged in the performance of official duties, and the defendant knew or reasonably should have known that such victim was a law enforcement officer, corrections official, corrections employee or firefighter engaged in the performance of official duties, Tenn.Code Ann. § 39-2-203(i)(9).

The appellant appealed of right his conviction and death sentence. The Supreme Court affirmed both the conviction and death sentence. State v. Workman, 667 S.W.2d 44 (Tenn.1984). The United States Supreme Court denied the appellant's petition for certiorari. Workman v. Tennessee, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984).

On March 1, 1985, the appellant initiated his first suit for post-conviction relief. The appellant was represented by Larry D. Woods, who is recognized as an expert in capital litigation, and an associate, Kim L. Kirk. Counsel prepared and filed the petition on behalf of the appellant. The trial court denied the relief sought by the appellant. This Court affirmed the judgment of the trial court. Philip Ray Workman v. State, Shelby County No. 111 (Tenn.Crim.App., February 18, 1987, Jackson), per. app. denied May 11, 1987. The United States Supreme Court denied the appellant's petition for certiorari. Workman v. Tennessee, 484 U.S. 873, 108 S.Ct. 209, 98 L.Ed.2d 160 (1987).

This suit was instituted on June 27, 1988. Counsel was appointed to represent the appellant. An “Amended Petition for Post-Conviction Relief” was filed by counsel on February 22, 1991. Subsequently, a “Superseding Amended Petition for Post-Conviction Relief” was filed in the cause on January 28, 1992. The trial court filed its findings of fact and conclusions of law on March 20, 1992.

EXCULPATORY EVIDENCE CLAIM

The petition alleged that the state had failed to furnish defense counsel with materials that are described as “exculpatory evidence.” This evidence consisted of certain reports prepared by police officers who either were present on the night in question or investigated the murder of Lieutenant Oliver.

The appellant also relied on the statements of certain lay witnesses. The purported “exculpatory evidence” may be categorized in the following manner: (a) the statements that were inconsistent with the state's trial theory; (b) the shooting was triggered when the appellant was hit in the back of the head with a flashlight after he had surrendered and was kneeling on the parking lot; and (c) other officers besides Lt. Oliver and the appellant fired weapons, and Oliver may “possibly” have been killed by “friendly fire.”

*****

The prosecution is not required to disclose information that the accused already possesses or is able to obtain, State v. Caldwell, 656 S.W.2d 894, 896-897 (Tenn.Crim.App.1983); Banks v. State, 556 S.W.2d 88, 90 (Tenn.Crim.App.1977); or information which is not possessed by or under the control of the prosecution or another governmental agency. Banks v. State, supra. Nor is the prosecution required to seek out exculpatory evidence not already in its possession or in the possession of a governmental agency. See United States v. Xheka, 704 F.2d 974, 982 (7th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983).

When exculpatory evidence is equally available to the prosecution and the accused, the accused “must bear the responsibility of [his] failure to seek its discovery.” United States v. McKenzie, 768 F.2d 602, 608 (5th Cir.1985), cert. denied, 474 U.S. 1086, 106 S.Ct. 861, 88 L.Ed.2d 900 (1986). The appellant was not entitled to an evidentiary hearing on this issue.

First, defense counsel was aware of the appellant's theory that he was attempting to surrender, he was hit with an object, the shooting occurred after he was struck, and he left the situs of the murder holding his head. This evidence was introduced at the appellant's trial. State v. Workman, 667 S.W.2d at 44. Moreover, the evidence was not material. In Workman the Supreme Court said:

The defendant testified at the trial and admitted both the robbery and the killing, but tried to show he was a drug addict and under the influence of drugs at the time of the crimes. He insisted he was trying to give up when he was ‘hit or grabbed’ by the officers, and that it was after that that he shot Stoddard and Oliver. He also testified that he could only remember ‘bits' and ‘pieces' of the events of the evening.

On the introduction of evidence that defendant was holding his head as he fled the murder scene and that a flashlight was found on the Wendy's parking lot, the defense filed a motion that the state produce any evidence it had that the defendant had been hit in the head with a flashlight by the victim. The evidence was to be used by the defendant either to show self-defense or to mitigate the killing by proving defendant was stunned when he pulled the trigger.

The trial court denied the motion, correctly pointing out that the evidence was irrelevant to defendant's guilt or innocence under Smith v. State, 209 Tenn. 499, 354 S.W.2d 450 (1961) (Self-defense no defense to felony murder), and while it would bear on mitigating circumstances, the issue was moot in light of the admission by the state that it had no such evidence. 667 S.W.2d at 47. Thus, defense counsel was aware of the information.

Second, the allegation that Lt. Oliver “possibly” was killed by “friendly fire” was refuted by the appellant's own testimony at the trial. As previously noted, the appellant admitted that he committed the armed robbery of the business to police; and he made a judicial confession that he committed the armed robbery and killed Oliver. Other witnesses saw the appellant fire his weapon at Oliver and saw Oliver fall after the shot was fired.

In addition, defense counsel was aware that another officer had fired a shotgun at the appellant and struck him in the buttock. This evidence was admitted during the course of the trial. State v. Workman, 667 S.W.2d at 47. The appellant does not suggest in his petition that he can prove Lt. Oliver was killed by a projectile fired from another officer's weapon.

Third, the purported “exculpatory evidence” was not material. As stated in United States v. Bagley: “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” 473 U.S. at 681-682, 105 S.Ct. at 3383, 87 L.Ed.2d at 494. It is clear from the facts hereinabove related that the evidence set forth in the petition was not material given the fact that defense counsel was aware of these circumstances, police officers and lay witnesses saw the appellant shoot Lt. Oliver, and the appellant made a judicial admission that he committed the robbery and killed Oliver.

Moreover, the defense of self-defense was not available. In addition, evidence which is only relevant to the issue of guilt or innocence is not admissible at a capital punishment sentencing hearing. State v. Adkins, 653 S.W.2d 708 (Tenn.1983), appeal after remand, 725 S.W.2d 660, 663 (Tenn.), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987). See State v. Hartman, 703 S.W.2d 106, 119 (Tenn.), cert. denied, 478 U.S. 1010, 106 S.Ct. 3308, 92 L.Ed.2d 721 (1986).

In reality, the appellant sought to attack the sufficiency of the evidence under the guise of “exculpatory evidence.” The “Superseding Amended Petition for Post-Conviction Relief” briefly outlined what the appellant called the “state's theory.” He then alleged that “the State's theory is facially unbelievable.” Later, he stated that “the following events are far more likely to have transpired....”

The appellant attempted to relate every conceivable inconsistency he discovered when reviewing statements in the file of the District Attorney General for the Thirtieth Judicial District. He did not mention or allude to the appellant's confession to the police or the appellant's judicial admission. Also, the factual inconsistencies were not material-these inconsistencies did not establish the appellant's innocence nor did the inconsistencies undermine the five aggravating circumstances that were found by the jury.

*****

Given the fact that the evidence of the appellant's guilt was overwhelming, that there were four aggravating circumstances in addition to the underlying felony used to establish the felony murder conviction, that the appellant admitted the evidence was sufficient to support three of the aggravating circumstances on direct appeal, and that the Supreme Court found that the fourth aggravating circumstance was established by the evidence, the use of the underlying felony as an aggravating circumstance was harmless beyond a reasonable doubt.

The deletion of this aggravating circumstance would not change the result reached by the jury. It must be remembered that evidence of the armed robbery was admissible in the guilt portion of the trial. Thus, the jury was not exposed to evidence that was otherwise inadmissible as in State v. Bobo, supra.

The appellant is not entitled to an evidentiary hearing based on this ground. BIRCH, J., and CORNELIA A. CLARK, Special Judge, concur.

Workman v. Bell, 245 F.3d 849 (6th Cir. 2001) (Habeas).

After his Tennessee capital murder conviction, was affirmed, 667 S.W.2d 44, and dismissal of his second state petition for postconviction relief was also affirmed, 868 S.W.2d 705, petitioner sought federal habeas corpus relief. The United States District Court for the Western District of Tennessee, Julia Smith Gibbons, Chief Judge, denied relief. Petitioner appealed. The Court of Appeals, 178 F.3d 759, affirmed.

After he was denied leave to file second habeas petition, an equally divided en banc Court of Appeals denied his motion to reopen, 227 F.3d 331, petitioner again moved to stay execution date, and to reopen habeas petition and appoint special master. The Court of Appeals, Siler, Circuit Judge, held that petitioner's allegations that representatives of Tennessee agencies worked to ensure that clemency proceedings did not prevent his execution, and that false testimony was offered during proceedings, did not establish fraud on the court sufficient to support reopening of habeas petition. Motions denied.

SILER, Circuit Judge.

This matter comes before the court on a motion to reopen and to appoint a special master made by petitioner, Philip R. Workman, pursuant to the All Writs Act, 28 U.S.C. § 1651, Fed.R.Civ.P. 53(c) and 60(b)(6), and the court's inherent power to protect the integrity of the judicial process. For reasons stated hereafter, we deny the motion.

Workman was convicted in Tennessee for the murder of a Memphis police officer during a robbery in 1981. After unsuccessful direct appeals and state post-conviction proceedings, he petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied relief, and that was affirmed by this court in Workman v. Bell, 178 F.3d 759 (6th Cir.1998), cert. denied, 528 U.S. 913, 120 S.Ct. 264, 145 L.Ed.2d 221 (1999).

A subsequent petition to file a second habeas corpus action was denied by a panel of this court and was also denied by an equally divided en banc court in Workman v. Bell, 227 F.3d 331 (6th Cir.2000), cert. denied, 531 U.S. 1193, 121 S.Ct. 1194, 149 L.Ed.2d 109 (2001).

After the latest denial of certiorari, the Tennessee Supreme Court set an execution date of March 30, 2001, and the petitioner then filed a motion to stay the execution date and the pending motion to reopen and appoint a special master. This court subsequently denied the motion to stay the execution date. He then filed a second motion to stay the execution date along with the motion to reopen and to appoint a special master.

Workman claims that the grounds for his pending motion are based upon a fraud upon the court. Specifically, he claims that the State asserted in argument before this court that Workman still had the opportunity to request relief under executive clemency in Tennessee. Although Workman was given a clemency hearing in April 2000, he withdrew the request before the governor acted upon it while his petition for rehearing en banc was proceeding.

Later, he had another clemency hearing before the Tennessee Board of Probation and Parole (TBPP) on January 25, 2001. The governor of Tennessee has not yet decided his request for clemency, so far as this court is aware. Workman seized upon language in an order that this court entered in 1999, denying the first petition for rehearing en banc, when we stated:

“The traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.” Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Under Tennessee law, the governor may grant clemency, see Tenn.Code Ann. § 40-27-101, so Workman may produce evidence to the governor that the fatal shot must have come from someone else's gun.

In support of his claim of fraud, Workman makes the following allegations: (1) the Tennessee Attorney General and others from his office, persons associated with the TBPP, representatives of the Shelby County District Attorney's Office and the governor's staff held meetings about the clemency proceedings that were designed to secure his execution; (2) the TBPP was hostile to the witnesses Workman presented during the clemency proceedings; (3) the State presented fabricated*852 expert testimony during the clemency proceedings; and (4) a retired police officer, Clyde Keenan, falsely testified during the clemency proceedings.

In our equally divided opinion denying further relief for the petitioner in Workman, 227 F.3d 331, all of the judges agreed that the court can reconsider the petition if there was a fraud upon the court, as explained in Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir.1993). The elements of fraud set out in Demjanjuk are conduct: (1) On the part of an officer of the court; (2) That is directed to the “judicial machinery” itself; (3) That is intentionally false, wilfully blind to the truth, or is in reckless disregard for the truth; (4) That is a positive averment or is concealment when one is under a duty to disclose; (5) That deceives the court. Id. at 348.

Although the State asserted that a clemency proceeding was available in which Workman could present evidence, it did not make a statement concerning the clemency proceeding that was intentionally false, wilfully blind to the truth, or in reckless disregard for the truth. Taking the allegations in the light most favorable to Workman, if there was any fraud, it would have been upon the governor of Tennessee or upon the TBPP.

Death row inmates have no constitutional right to clemency proceedings. See Herrera, 506 U.S. at 414, 113 S.Ct. 853. The Tennessee Governor has the power to pardon, grant reprieves and commutations in all criminal cases except impeachment. See Tenn. Const. art. III, § 6; Tenn.Code Ann. § 40-27-101. The TBPP makes, “upon the request of the governor, ... nonbinding recommendations concerning all requests for pardons, reprieves or commutations.” Tenn.Code Ann. § 40-28-104(a)(10).

We do not sit as super appeals courts over state commutation proceedings. In Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 276, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (plurality opinion), the Court held, “We reaffirm our holding in [ Connecticut Bd. of Pardons v.] Dumschat [452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981)], that ‘pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.’ ”

However, the court split on the issue of whether clemency proceedings were subject to the constitutional safeguards of the Due Process Clause. See id. at 289, 118 S.Ct. 1244. Justice O'Connor's concurring opinion concluded that “some minimal procedural safeguards apply to clemency proceedings” regardless of whether the power to grant clemency is solely entrusted to the executive. Id. (O'Connor, J., concurring). She illuminated the standard by stating, “Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” Id.

Workman does not allege that his Tennessee clemency proceedings failed to meet the standard set out in Woodard. He attacks the evidence presented at his clemency proceeding by saying that it was erroneous or false. Thus, he attacks the proceedings' substantive merits. We are not authorized to review the substantive merits of a clemency proceeding. See Duvall v. Keating, 162 F.3d 1058, 1061 (10th Cir.1998). Our only review is to see that *853 there are some minimal procedural safeguards. See Faulder v. Texas Board of Pardons and Paroles, 178 F.3d 343, 344 (5th Cir.1999). It is not our duty to determine the quality of the evidence considered by the governor or his board.

Because we deny the motion to reopen and to appoint a special master, the second motion to stay the execution is also meritless. MOTIONS DENIED.

Workman v. Bell, 178 F.3d 759 (6th Cir. 1998) (Habeas).

Following affirmance on direct appeal of his capital murder conviction, 667 S.W.2d 44, and affirmance of dismissal of his second petition for postconviction relief, 868 S.W.2d 705, petitioner sought habeas corpus relief. The United States District Court for the Western District of Tennessee, Julia S. Gibbons, C.J., denied relief. Petitioner appealed.

The Court of Appeals, Siler, Circuit Judge, held that: (1) prosecution did not present false testimony in connection with its argument that victim's fatal wound came from petitioner's pistol; (2) prosecutor did not present false testimony or fabricate evidence in connection with testimony of witness whom several witnesses did not mention seeing at murder scene; (3) petitioner's trial counsel did not provide ineffective assistance; (4) petitioner was in custody when he escaped, such that aggravating sentencing factor of escape from lawful custody applied to him; and (5) jury's improper consideration of felony murder as aggravating circumstance was harmless. Affirmed.

SILER, Circuit Judge.

The petitioner, Philip R. Workman, under a death sentence, appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has raised numerous issues. For the reasons stated herein, we AFFIRM the judgment of the district court.

I. Background

The facts surrounding Workman's conviction are stated by the Tennessee Supreme Court in State v. Workman, 667 S.W.2d 44, 46-47 (Tenn.), cert. denied, Workman v. Tennessee, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984)( “ Workman I ”).

Workman was convicted of the felony murder of Lt. Ronald Oliver of the Memphis Police Department in connection with a robbery of a Wendy's restaurant. During sentencing, he presented no evidence of mitigating circumstances. The jury recommended a sentence of death, finding five statutory aggravating circumstances:

a) The defendant knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder, Tenn.Code Ann. § 39-2-203(i)(3);

b) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another, Tenn.Code Ann. § 39-2-203(i)(6);

c) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, the offense of robbery, Tenn.Code Ann. § 39-2-203(i)(7);

d) The murder was committed by the defendant while in lawful custody or in a place of lawful confinement or during the defendant's escape from lawful custody or from a lawful place of confinement, Tenn.Code Ann. § 39-2-203(i)(8); and

e) The murder was committed against any law enforcement officer, corrections official, corrections employee or firefighter, who was engaged in the performance of official duties, and the defendant knew or reasonably should have known that such victim was a law enforcement officer, corrections official, corrections employee or firefighter engaged in the performance of official duties, Tenn.Code Ann. § 39-2-203(i)(9). Workman v. State, 868 S.W.2d 705, 707-08 (Tenn.Crim.App.1993) (“Workman III ”). The Tennessee Supreme Court affirmed the conviction and sentence. Workman I, 667 S.W.2d 44.

In 1986, the Shelby County Criminal Court denied Workman's first petition for post-conviction relief. On appeal, the Court of Criminal Appeals affirmed the trial court, finding that some claims were without merit, some claims were waived, and the remaining claims were previously determined. Workman v. State, C.C.A. No. 111, 1987 WL 6724 (Tenn.Crim.App., Feb. 18, 1987) (“ Workman II ”). The Tennessee Supreme Court denied permission to appeal, and the United States Supreme Court denied certiorari. Workman v. Tennessee, 484 U.S. 873, 108 S.Ct. 209, 98 L.Ed.2d 160 (1987).

In 1992, the Shelby County Criminal Court denied Workman's second petition for post-conviction relief. The Court of Criminal Appeals affirmed, Workman III, 868 S.W.2d 705, 707-08, and the Tennessee Supreme Court denied permission to appeal. Later, the United States Supreme Court denied certiorari. Workman v. Tennessee, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994).

In 1994, Workman filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Tennessee pursuant to 28 U.S.C. § 2254. In 1996, the district court denied the petition, finding that some issues were defaulted and that the remaining were meritless. Workman has appealed to this court, focusing his attention on five issues. He has also presented a number of succinct issues without much discussion or argument.

II. Discussion

A. Standard of Review

This court reviews the district court's denial of a writ by summary judgment de novo. See Hartleip v. McNeilab, Inc., 83 F.3d 767, 774 (6th Cir.1996) (citing E.E.O.C. v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990)). Furthermore, review of this writ of habeas corpus petition is governed by 28 U.S.C. § 2254. Pursuant to § 2254(d), the state court's factual findings are presumed to be correct unless Workman can demonstrate one or more of the eight exceptions listed in the statute. Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983).

B. Withholding of Evidence/ Presenting False Evidence

Workman claims that the prosecution both presented false evidence and withheld exculpatory evidence during his trial. He alleges that the prosecution presented false testimony, withheld documents, did not disclose statements by witnesses, and fabricated evidence in an effort to keep the jury from discovering that an officer struck him on the head while he was trying to surrender and that someone else, namely Memphis Police Officer Aubrey Stoddard or Stephen Parker, shot Lt. Oliver. Because both of these theories have been consolidated into a single argument, Workman's allegations will be presented together.

Through the affidavit of Dr. Kris Sperry, Workman now contends that the fatal wound in Lt. Oliver was not consistent with that typically received from a .45 caliber hollow point bullet like the one fired by Workman. Specifically, Dr. Sperry claims that the exit wound found in Lt. Oliver was slightly smaller than the entry wound, whereas the typical exit wound is significantly larger than the entry wound. Workman thus concludes that the prosecution must have presented false evidence concerning the source of Lt. Oliver's wound.

Workman also contends that a prosecution witness, Harold Davis, a black man, was not present when the incident between Workman and the officers occurred. Davis testified that Workman shot Lt. Oliver. Workman points out that five witnesses, Steve Craig, Kerry Kill, Garvin Null, Officer Parker, and Officer Stoddard, have indicated that they did not see Davis at the scene. Workman further notes that police reports taken at the scene do not mention Davis or his vehicle.

Moreover, a crime scene diagram does not indicate the presence of Davis's car. Finally, Workman notes that Davis did not attend the lineup held immediately after Workman's capture, but instead viewed a photograph array approximately sixteen hours after the incident. Therefore, according to Workman, Davis must have been “planted” by the prosecution.

Workman also claims that the prosecution withheld evidence that Officer Parker fired his shotgun during the incident. For support, he cites police documents, Craig's testimony and medical records from the hospital where he was taken after the incident. The police document indicates that Parker carried a shotgun. Craig stated that he saw Parker fire his shotgun. The emergency medical records indicate that Workman was treated for shotgun wounds to his buttocks.

Finally, Workman contends that the prosecution withheld evidence that he was bludgeoned by Officer Stoddard with a flashlight while he was attempting to surrender. In this regard, he alleges that Officers Stoddard and Parker committed perjury and that the state withheld the statements of three witnesses not called at trial-Null, Jeff Rickard, and Craig.

From this evidence, Workman generally concludes that he did not shoot Lt. Oliver, but that Lt. Oliver was shot by either Officer Stoddard or Officer Parker. However, Workman testified during trial that he shot Lt. Oliver. Clearly, any attempt to retract this confession must be viewed skeptically.

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The weapon fired by Workman on the night he robbed the restaurant was a .45 caliber Colt Commander semi-automatic pistol loaded with aluminum jacketed “silver tip” hollow point bullets. These bullets, which have a soft lead core, are designed to expand, or “mushroom,” upon entering the human body.

Thus an F.B.I. agent who fired silver tip hollow point bullets from Workman's pistol into a water tank told the jury, in describing the condition of the bullets after they had been retrieved from the tank, that “[t]he bullets have mushroomed, being hollow-point bullets, and have had a portion of the jacket mutilated and separated from the original jacket.”

Dr. Sperry, the Fulton County Deputy Chief Medical Examiner in Atlanta, Georgia, gave Workman's lawyers an affidavit on this subject in 1995. He attested that in the course of his work as a medical examiner he has seen some 30 to 40 corpses with wounds from ammunition of the sort Workman used; that in every one of these cases, “the .45 silver tip hollow point bullet expanded upon entering the human body involved”; that approximately 90 percent of the time, the hollow point bullet never emerged from the victim's body at all; that “[i]n the remaining instances [ i.e., the remaining three or four cases], the exit wound created by the .45 silver tip hollow point bullet was significantly larger than the entrance wound the bullet created”; and that it would be inconsistent with the exit wounds seen by Dr. Sperry for a .45 silver tip hollow point bullet to create an exit wound smaller than the entry wound.

The report of the autopsy on Lt. Oliver's body describes both an entry wound and an exit wound. Dr. James Bell, the medical examiner who performed the autopsy, testified at trial that the entry wound (which was in the front of the chest) was half an inch in diameter and was “sort of rounded....” The exit wound, in contrast, was a “sort of slit-like tear in the skin” less than a quarter of an inch in length.

If a .45 caliber hollow point bullet had gone all the way through Lt. Oliver's chest and emerged in one piece, we have no doubt that the exit wound would have been larger than the entry wound. It hardly follows, however, that Lt. Oliver could not have been shot with the type of ammunition Workman was firing-because the record in no way compels the conclusion that the bullet which killed the officer emerged from his body in one piece.

The district court correctly found that Dr. Sperry's testimony did “not state that Oliver's wound could not have been caused by petitioner's weapon, nor does it offer an opinion that the wound was caused by the weapons of Stoddard or Parker or that it was consistent with wounds created by such weapons.” Furthermore, Dr. Sperry's testimony simply “represents a view arguably different from that given by the state's expert witness at trial.”

Assuming that Dr. Sperry's observations are credited, Workman has presented no evidence that the prosecution knowingly presented false evidence in this regard. He has simply shown that there may be different interpretations of the physical evidence. As Workman cannot demonstrate falsity, he cannot prevail on this argument. See Hawkins, 969 F.2d at 175.

The district court also correctly concluded that the fact that several witnesses did not mention seeing Davis establishes neither his presence nor absence at the scene. Specifically, it found that Officer Stoddard's failure to see Davis is understandable because he was involved in an altercation with Workman and was ultimately shot by him, the other witnesses Workman produced were busy helping the officers, and therefore it was also understandable that they did not see Davis.

Furthermore, Workman presents no evidence that, assuming Davis presented false testimony, the prosecution had knowledge of its falsity. Finally, Davis's testimony merely corroborated Workman's own trial testimony that he shot Lt. Oliver.

Workman is correct that Parker carried a shotgun, and that Craig stated that Parker fired it. Furthermore, hospital records indicate that Workman was treated for a shotgun wound. However, it does not seem that the prosecution concealed this fact or that it was material to the issue of whether Workman shot Lt. Oliver. Even Dr. Sperry does not theorize that Lt. Oliver was killed with buckshot. Finally, it is not Brady material, as Workman knew he was hit by gunfire from a shotgun.

Workman's evidence that he was bludgeoned by Officer Stoddard while he was trying to escape is irrelevant. Assuming that Stoddard struck Workman with his flashlight during the struggle, Workman cannot establish why this would be material to his claim.

In sum, Workman has failed to prove the evidence was false, the prosecution knew it was false, or how it is material. See Hawkins, 969 F.2d at 175. In regard to the evidence he claims was withheld, he has failed to show that it had any value whatsoever.

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