# FILED

September 15, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE AUGUST 1997 SESSION

DAVID ALLEN BRIMMER, * C.C.A. # 03C01-9703-CC- 00083 Appellant, * ANDERSON C OUNTY VS. * Hon. James B. Sc ott, Judge STATE OF TENNESSEE, * (Post-Co nviction- -Death Pe nalty)

Appellee. *

For Appellant : For Appellee : W. Thomas Dillard John Knox Walkup Ritchie, Fels & Dillard, P.C. Attorney General and Repor ter 606 West Main Street Suite 300, P.O. Box 1126 Michael E. Moore Knoxville, TN 37901- 1126 Solicitor General Darian B. Taylor Assistant Attorney General Criminal Justice Div

ision Cordell Hull Buildi ng, Second Floor 4025 Fifth Avenue North Nashville, TN 37243-0493 Jan Hicks Assistant District A

ttorney General Room 126, Anderson County Courthouse Clinton, TN 37716

OPINION FILED:__________________________

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

GARY R. WADE, JUDGE2 OPINION The petitioner, David All en Brimmer, was convi cted of first degree murder on March 1, 1991. A jury imposed the death penalty based upon a single aggrav ating circums

tance: that the petition er was engaged in the c

ommissi on of a robbery at the time of the crime. Tenn. Code Ann. § 39-1 3-204(i)(7). On direct appeal, the conviction and s entence were affirmed by our s upreme court. State v. Brimmer , 876 S.W.2d 75 (Tenn. 1994). On April 18, 1995, the petitioner filed a post-conviction petiti on alleging, among other things, that he was deni ed the effective assistance of counsel. At the conclusion of the evidentiary hearing, the trial court denied reli ef.

In this appeal of right, the pe titioner presents the follow ing issues for our review: (I) whether the petitioner w as denied the effective assistance of counsel; (II) whether the petitioner's confession should have been excluded from the ev idence; (III) whether there was pr osecutorial misconduct during the course of the trial; and (IV) whether various cons titutional violations and trial errors entitle the petitioner to reli ef from his death sentence.

We affirm the denial of post-conviction relief on the conviction of first degree murder. Due to the i neffective assistance of defense counsel in the sentencing phase of the trial,we reverse the penalty of death and remand to the trial court for a new hearing.

On the evening of October 22,1989, the victim, Rodney Compton,3 was to have returned t

o the Knoxville air

port from a cruise to the Bahamas. Sixteen days later, his body

was discovered i n a hayfield in rural Loudon County. An autopsy established that his neck had been cut. Suff ocation and strangulation were the probable causes of death.

On February 3, 1990, the peti tioner was arrested on unrelated charges in Refugio, Texas. It w as determined that he was dr iving the victi m's pickup truck. The victim's jacket and a pair of handcuffs were inside the vehicle. Thre e weeks later, the petitioner confessed that he had killed the vic tim. He told officers that on the evening of October 22, the victim had offered him a ride in his truck. While conceding that he had intended to rob the victim, the petitioner claimed that when the victim made sexual advances, he represented to the victim that he was a police officer and then "arrested" and handcuffed the v ictim. The petitioner rev ealed that he then drove the victi m to a location in Anderson Cou nty, choked him to death, and returned to Loudon County w here he disposed of the body. While being r eturned to this state from Texas, the petitioner informed officers that he had killed the victim in a park in Anderson County. Another source indicated that the petition er had been in Anderson County at the time of the victim's disappearance. Othe r evidence established that only a few days after the disappearance of the victim, the petitioner was seen in possession of the victim's truck, his jacket, and several of the souvenirs that had been purchased in the Bahamas. See Brimmer , 876 S.W.2d at 78.

During the course of trial, the petitioner was initially represented only by Attorney Thomas DePersio. When th e petitioner complained to the trial court about his lack of communication from DePersio, Michael Clement was appointed. Clement, who had three y ears' experience in the law practice, had not been previously involved in a capital case. He recalled that he had not utilized an expert1 Tennessee Supreme Court Rule 13 governs a ppointment of counsel in capit al cases. Pri or to July 1, 1997, t he rule prov ided, " [i]n a capital case two attorneys may be appointed for one defe nda nt." T enn . Sup . Ct. R . 13, § 1 (prio r to am end me nt in 19 97) (e mp has is add ed). E ffec tive Ju ly 1, 1997, t he rule prov ides that "at l east two att

orneys must be appointed to represent a defendant at trial in a capital

case." Tenn. Sup. Ct. R. 13, § 3 (b). 4 in any prior criminal case, although he "may have [used one] in a personal injury matter." Clement, who had compl eted only three jury trials before this case, w as appointed as additional counsel approximately two months prior to trial. 1 An investiga tor, Mike C ohan, was employed to assist the petit ioner and his attor neys some five weeks prior to trial.

During the course of the ev identiary hearing on this post-conviction claim, Clement testified that s oon after his appointment, he became the fir st of petitioner's attorneys to review the state's evidence. DePersio had not previously done so. Clement recalled meeti ng with DePersio on several occasions pr ior to trial. He also remembered that DePers io often drank beer during thei r meetings, some of which started as earl

y as 9:00 A.M. Clement, a solo practitioner, descr ibed DePersio as having a

heavy caseload as a publ ic defender. Clement perceiv ed DePersio as having a substance abuse problem and remembered that DePersio went to a bar at the conclusion of the penalty phase of the trial while the jury engaged in its deliber

ations. DePersio was

not present when the jury sentenced Brimmer to death. Clement concede d that he made no complaints to either the public defender or the Board of Professio nal Responsibility about DePersio's conduct.

Prior to the trial, Cl ement had expressed concern to DePersio about the petitioner's mental condition and suggested an ev aluation. DePersio expr essed his belief that psycholog ical proof was "voodoo" and "did not work." He als o thought it was not particular

ly relevant in thi s case because the petitioner had denied5 committing the crime. DePe rsio did, however,consent to a psychologi cal evaluation of the petitioner, which w as later performed by Dr.Eric Engum. DePersio had no objections to the psychol ogical proof as long as C lement "had to find the person, [] do the research, [and] prepare. ... It was [Clement's] issue."
Clement recalled that the hearing on the defense m otion to suppress the confession filed by DePers io was held long before hi s appointment to the case. At the suppression hearing , DePersio did not raise any psychological issues concerning the voluntar iness or accuracy of the c onfession. Clement recalled asking DePersio "w

hy ... didn't he raise a ny psychological issues at the suppression level."

Clement also recalled that h e and Dr. Engum had done resear ch on the possibility of Pri soner of War Syndrome, based upon the twenty -one days the petitioner served in solitary confinement prior to his confession in Texas. He questioned DePersio's dec ision not to use Dr. Eng um during the suppression hearing. It was Clement's opinion that Dr. Engum would have been helpful in establishing how Br

immer "could have been broken and given a confession."

Clement testified that when tw o attorneys represented a p arty defendant, it was customary in the Anderson County trial court for the specif ic attorney who conducted the cross-examination of a state witness to also take fu ll responsibility for making objections to any inappropriate questions by the state. He remembered that DePersio, w ho cross-examined the Refug io County Sheriff, failed to object to a statement during trial that the petitioner

had "killed before." Clement could not recall why he himself had not done so, but insisted his failure to ob ject was "unforgivable." H e also could not think of any reason why there w as no motion6 for a mistrial or why the issue was not raised in the motion for a new trial. He remembered, h owever, that DePers io had been effec tive in cr oss-exami ning some of the state witnesses, cr eating inconsistencies among those present on the "kil led before" allegation. Clement cl aimed DePersio did not get involved with the psychological components of the case because DePersio had insisted that "Dr. Engum was [in his] bai liwick." Clement co nceded that the trial court r efused to grant a request by the defense for ins tructions on the subject of miti gating circumstances at the conclusion of the penalty phase of the proceeding.
Clement testified that he had gi ven his best effort on behalf of the petitioner, although much of his time investment had b een after his regular business hours. He utilized the discovery procedu re soon after his appointment, had no difficulty in communicating with the petitioner, and had access to a f orensic team's evaluation of the petitioner w hich showed the petitioner was competent to stand tri al and sane when he committed the offense.

The defense theory was that the petitioner did not commit the c rime. Clement testified that there had been no attempt to establish an insanity defense. He explained that such a defense would have essentiall y required an acknowledgment that the peti tioner committed the murder, but that it was due to a mental disease or defect. Clement recalled that the defense had been successful in its effort to bar any reference to the specific deta ils of the prior killing in Massachusetts. The state had been o rdered not to make any referenc e to the
occurrence.

Clement recalled that he felt the defense had been "gutted" during the guilt phase when the trial court refused to allow Dr. Engum to testify. The defense2 See State v. Zimmerman , 823 S.W.2d 220, 221-22 ( Tenn. Crim. App. 1991) (counsel found ineffect ive for pr

omising the j ury duri ng opening stat ement that a psy

chiatri st would at

test to the defend ant's "batte red wife s yndrom e" and the n failing to ca ll the witness ). 7 strategy included a r

epresentation to the jury that Dr. Engum would appear on behalf of the petitioner. 2 Dr. Engum would testify that the confession was the result of the Prisoner of War Syndrome. Clement "had no i dea that Dr. Engum's testi mony was going to be dis

allowed during the g uilt phase." The theory at tr ial was to "show the jury that these people i n Texas treated [Brimmer] l ike a prisoner of war and he ... became a babbling idiot and sai d anything they w anted [him] to say. But that [evidence] was disal lowed by Judge Scott ."

At trial, there were

general instructions to the jury on mitigating circumstances. The defense was allowed to argue that the petitioner was afflicted with Borderline Pers

onality Syndrome and Abandoned Child Syndrome.
At the evidentiary hear ing, Dr. Eric Eng um testified that at the time of his examination, he had reco rds and letters from the Dev ereux Foundation, the John Byrne Center, the Ridg eview Psychiatr ic Hospital, and the Midd le Tennessee Mental Health Institute concerning the petitioner. He conclu ded that the petitioner was competent to stand trial and that an insanity defen se could not be supported. He recalled that he had informed defen se counsel in early January, at least six weeks before the trial, that there w as some evidence of mitigati on. Dr. Engum had no further contact with tri al counsel until the date the t rial began. He acknow ledged, however, that he conferre d with defense counsel on a dail y basis thereafter as to the voluntariness of the confessi on. He recalled that defense couns el first talked to him about mitigation evidence "an hour or so" before the penalty phase began. Dr. Engum acknowledged that de fense counsel never specifical ly asked about the statutory mitigating

circumstances, something which was typi cally done in his pri or8 experience with capital cases. There was some mitigation evidence. Dr. Engum did testify about his diagnosi s of borderline personality disorder and specifically recalled commenting about the possibili ties associated with A

bandoned Child Syndrome and Burned Child Syndrome.

Dr. Ann Marie Charv

at, a clinical sociolo

gist, also testified at th e evidentiary hearing . Having been employ ed in approximately fifty capital cases, she did not participate in the trial but, sometime afterward, had prep ared a social history assessment of the petitioner at the request of post-conviction counsel. While acknowledging that s he had not advertised the av ailability of her serv

ices prior to the trial, Ms. Charva

t assessed what, in her view, should have been done for the petitioner on the subject of miti gation. Dr. Charv at prepared a report, call ed a "mitigation time line," w hich was entered into ev idence without objection from the state. Dr. Charvat de

scribed the time line as "the outline that I would hav e followed if I had done the investigat ion."

Dr. Charvat testified that she usually goes through various steps in preparing mitigation for trial: (1) interv iewing the defendant and attorn eys; (2) obtaining documentation of the indi vidual's life beginni ng with birth reco rds; (3) interviewing w

itnesses she discover

s from the documents; (4) interv iewing significant family members; and (5) clarifying mitigation factors for present ation to the jury. In the petiti oner's case, however, she only intervi ewed the attorneys from the petitioner's trial,reviewed the materia ls provided by the at torneys and collected a "substantial amount of documentation that included some school records [and] some of his early interv ention records." She also i nterviewed the petiti oner extensively. Other than petitioner's attor neys and the petitioner hims elf, Dr. Charvat did not interview a ny other witnesses.On cross-examination,Dr. Charvat conceded9 that she had no way of know ing if any of the witnes

ses uncovered in her investigation wo uld actually testify in court.

The mitigation time line rep ort shows the petitioner 's mother had a "serious drinking pr

oblem" and neglected, malnourish ed, and abused the petitioner and his siblings. When the petitioner was three years ol d, he was placed in foster care and separated from his sibl ings. When he was seven, he was placed in the Hansen foster home and subjected to severely "ritualized" physical abuse while in their custody. He was also forced to live in the basement while the Hansen's biological children lived in the main area of the ho use. The Hansen's natural children were not abused.

At age thirteen, the petiti oner was placed in Dev ereux Foundation, a home for mentally disturbed chi ldren. At the initial ev aluation, the petitioner repor ted having numerous nightmares while living with his foster parents. The psychiatric evaluation conducted by Devereux Foundation show ed the petitioner suffered Abandoned Child Syndrome and depr ession. The report indicated he also tended to reject interpersonal r

elationships in order to a void rejection. Dev

ereux Foundation reported the petitioner AWOL on occasion. H e also ran away from his foster placements on various occa sions.
The petition er left Devereux Fou ndation aft er graduating fro m high school and lived as a dr ifter for several year

s. In 1982, at twenty y ears of age, he met Mary Barber, w

ho would become the mother of his t wo sons. He lived

with her sporadically. He w

as in and out of various hospi tals for mental problems but nev er remained in one hospital long enough to get any ty

pe of qualitative treatment. Northwest Texas Hospital, where he stayed for less than one month, diagnosed him10 with "atypical psy

chosis." A second stay at Northwest Texas Hos pital resulted in a determination that the petitioner suffered "no real signs of deficit o r psychosis." A third diagnosis by Northwest Texas Hosp ital was that the petiti oner had factitious disorder and anti-social personality disorder

.
The mitigation time line als o showed the petitioner had s everal brushes with the law

for theft offenses, burglary, di sorderly conduct and mali cious mischief.
Attorney Tom DePersio, w ho had practiced law for ei ghteen years and also had engaged exclusively in the criminal law as an assistant with the Public Defender’s Office, had been involved in capital cases bef ore that of the petitioner; in the prior instances, how ever, the cases had been res olved without an actual trial. He admitted that he had little c ontact with the petitioner during his representat ion and conceded that he had done "some, not much" of the investigation. An investigator from the Publ ic Defender’s Office was av ailable to gather files and other information. DePersio acknow ledged that there had been no effort to obt ain Texas records or to contact officers from that state prior to the pr etrial suppression heari ng on the admissibility of the confession. He recalled fili ng a motion for services but then not following throug h on the request. He also admitted that he had not sought a psychological ev

aluation of the petitioner to ass ist in the suppression hear ing.

DePersio, who admitted that he was abusing alcohol and cocaine at the time of the trial, conceded that his abuse adversely aff ected his ability to give full attention to matters relating to the petitioner at that time.He recalled that he had filed an affidavit to that effect in the di rect appeal. The Rule 12 repor t form of the trial judge made no mention of any inadequacies in his re presentation. See Tenn.3 After revi ewing the t rial co urt's Rul e 12 Report to t he Supreme Court, Assist ant Distr ict Attorney G eneral Ja n Hick s wrote th e trial judge a letter which states in pa rt:

[T]here i s one glari ng omission under Part D10 "significant d ata abou t defens e repres entation." ... Tom DePersio left aft er the questi on of penalt y was submitted to t he jury anddid not r eturn and was not presen t when the death pe nalty verdict w as return ed. This is, of course , a fact kn own to the Court .... While it may be a quest ion as to whet her this was "signi ficant, " it was certainl y unusual, notable and well-publicized and sinc e this is a de ath pena lty cas e, we believ e it sh ould b e not ed in th e rep ort in a ll fairness to the defe ndant an d the judic ial proces s. This lett er is i ncluded in the record as an appare nt effort to correct

the Rule 12 Repo rt. 11 Sup. Ct. Rule 12(D). 3

DePersio recalled that the petitioner had filed a pro se "Motion to Elect Counsel" on December 12, 1990. The petitione r alleged that he had not seen his attorney since May,1990. At the motion hearing, the petitioner testified that he w as not othe rwise dissa tisfied with his att orney and said, "[i ]f I can ju st get to, you know, talk to them once in a whil e and know what's g oing on." After the hearing,Clement was appointed to assist i n the representation of the petiti oner.

DePersio claimed that the confession had been coerced. Hespecifically recalled a vigorous attack on the credibility of the sheriff during crossexamination. He acknow ledged that he had not objected to the sheriff's reference to the petitioner's comment that he had "killed bef ore" because the reference, in context, was not parti cularly damaging and to object would have empha sized the point to the detriment of the petitioner. DePersio's cross-examina tion also established that none of the other of ficers present during the interrogation had heard the petitioner say "he had k illed before."
In May of 1991, about two months after Brimmer's trial, DePersio was12 placed on probation by the Boar d of Professional Responsibility. At that time, he also went through a four-month period of treatment for the substance abuse problem.
Ralph Harwell, w ho had practiced criminal l aw in the Knoxvil le area for twenty-seven y

ears, examined certain of the t rial records. He had bee n asked to determine whether defense counsel 's performance "had measured up to an objective norm in the pro fession at that time" and "whether or not any errors that happened were so serious as to deprive the defendant of a fair trial." He was also asked to determin e whether there was a reasona ble proba bility tha t effec tive representation might hav e produced a different result. It was his opinion that the performance of defense cou nsel fell below the standards existing in 1991. Harwell pointed out that counsel should have had the petition er examined by a psychiatrist or psychologist before the suppression hearing. He believed that counsel’ s failure to raise the unreasonableness of the petitioner's de tention without a probable cause hearing in Texas fell bel ow the minimum standards req uired in Tennessee and he faulted counsel for failing to object or seek a new trial based on the sheriff’s testimony that the petitioner admitted "killing before." H e testified that the failure to investigate until two months prior to trial, the failure to object to the trial court's refusal to instruct on appli cable statutory mitig ating circumstances, and the failure to include this issue in a motion for a new trial did not meet the minimum standards required of attorneys i n this state.

On cross-examination, Harwell acknowledged that DePersio’s affidavit concerning his substance abuse problem, while filed a s an exhibit with the appellate brief, did no

t address hi s competence a s counsel. H e was awa re that the s upreme court did indirectly

address the issue, ruli ng that the defendant's brief containe d13 "innuendo and incomplete citations " and misleading argument. Brimmer , 876 S.W.2d at 78.

Dr. Sam Craddock, a licensed psychologist employed by the Middle Tennessee Mental Health Instit ute, had testified in the sentenci ng phase of this trial. After conducting a seventy -one day evaluation of the petitioner, his forensic team had concluded that the petitioner was not mentally il l at the time of the offense and that there was no basis for an insanity defense. At the evidentiary hearing, Dr. Craddock recalled that the petitioner had not been "forthcoming " in supplying informational sources whi ch might have assisted the team in its evaluation.A woman from Birmingham, Alabama, w ith whom the petitioner had resided for a time, was contacted and interv iewed by the forensic t

eam. While she was deemed credible, her comments about the petitioner were incons istent with an insanit y defense. Dr. Craddock conceded on cross-examination that his diagnosis might have been different had more information c onsistent with insanit

y been discovered. Dr. Craddock recalled

that the petitioner made no clai m about being diagnosed at a Virginia hospital in

1986 as suffering from atypical psychosis or other menta l disease. When asked if he would have been able to determine a psychosis, if present, Dr. Craddock responded as follows:

We suspected a psychosis, and anticipated seeing one, because he had been at Lakeshore [Ment al Health Institute in Knoxville] before he was sent to forensic services. So we w

ere watching carefull

y, and we saw some mild symptoms [that] gave us a suspicion of him being psychotic or s

chizophrenic. How

ever, his behavior during our intervi ews wasn't partic ularly consistent w

ith what he was like on the residential unit. And w ith the opportunity to have the s eventy-one days, w

e ruled out that he was psychotic , while with us. * * * [O]ne of the tests that I gave was suggestiv

e of symptom exaggeration, and it was primarily hi s ability to function well on the residential

unit versus whil e he was during14 clinical intervi ews.

Tom Marshall, the Public De fender for Anderson County, w ho had assigned DePersio to the case, testified that he had been inv olved in consultations from time to time during the pre parations for trial and had no c oncerns about the quality of DePersio's

performance. Marshall w as aware of the petitioner' s pretrial complaints about his lack of cont act with DePersio and was aware of the formal hearing on the subject before th e trial judge. He ack nowledged receivi ng a few complaints that DePersio oc casionally had alcohol on his breath but contended that he had investigated each c omplaint without finding c orroborating evidenc

e of impairment or "any quali tative problem with his representation." Mar shall testified that he had represented the petiti oner on direct appeal when DePersio resigned from his employment as assistant public defend er. Marshall believed that DePersio and Clement were effective i n their representation of the peti tioner.

I In this ap peal, th e petitio ner first argues tha t he recei ved the in effect ive assistance of counsel. He compl ains about the following s pecific deficiencies:

(a) abuse of alcohol and illegal drugs during the period of representation; (b) failure to provide reg ular consultation; (c) failure to present psychol ogical testimony at the suppressio n hearing; (d) failure to perform an adequate inv estigation; (e) failure to address comments that the petitioner had "killed before"; (f) failure to object to testimony about petitioner's comments made durin g transport from Texas to Tennessee; (g) failure to prepare or present psychological4 Except in Kent ucky, when a pri soner volunt arily terminated hi s appeals, no de ath penalt y has been carried out in the Sixth C ircuit of th e Unite d State s sinc e the re lease of the S uprem e Cou rt's opinion i n Gre gg v. G eorg ia , 428 U.S. 153 ( 1976). Michi gan has no death penalty. As of April1, 1998, O hio, Kentu cky, and Tenn essee have 30 5 prisone rs on de ath row. 15 testimony in the sentencing phase; (h) failure to include all poss ible grounds for relief in the motion for new tr ial; and (i) failure to present as an issue the illegal detention of the petitioner.

In order to establish that hi s counsel was ineffectiv e, the defendant must show that the advic e given or servi ces rendered were not w ithin the range of competence of attorneys in cri minal cases. Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975). He must also establi sh that but for his counsel's deficient performance, the results of the trial w

ould have been different. Strickland v. Washington , 466 U.S. 668 (1984).

When defense counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing, there has been a deni al of Sixth Amendment rights that makes the adv ersary process its

elf presumptively unrel iable." United States v. Cronic , 466 U.S. 648, 659 (1984). I f there h as been " an actua l breakdo wn of the adversarial proces s," no prejudice need be show n. Id. at 658; Rickman v. Bell , 131 F.3d 1150 (6th Cir. 1997), 4 cert. denied , 118 S. Ct. 1827 (1998).

The burden is on the defendant to sho w that the evidence preponderates against the findings of the trial judge who, in this instance, f ound in favor of the state. State v. Zimmerman , 823 S.W.2d 220, 224 (Tenn. Crim. App. 1991); Clenny v. State , 576 S.W.2d 12 (Ten n. Crim. App. 1978). The findings in the trial court on questions of fact may not be revers ed on appeal unless the evidence preponderates other wise. Zimmerman , 823 S.W.2d at 224; Graves v.16 State , 512 S.W.2d 603 (Tenn. Crim. App. 1973).

In Strickland , the Court described the burden of proof as f ollows: First, the defendant must show that counsel's performance was deficient. This requires showing

that counsel made errors so ser ious that counsel was not functioning as the "counsel" g uaranteed the defendant by the Sixth Amendment. Second, the defe ndant must show that the deficient performanc e prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result

is reliable. Unless

a defendant makes both showings, it cannot be said that the conviction or ... sentence resulted from a breakdown in the adversary proces

s that renders the result u nreliable. 466 U.S. at 687.

To establish prejudice, the evidence stemming from f ailure to prepare a sound defense or present witnesses must be significant, b ut it does not necessarily follow

that the trial should hav e otherwise resulted i n an acquittal. See generally Nealy v. Cabana , 764 F.2d 1173, 1178-79 (5th Cir. 1985); Code v. Montgomery , 799 F.2d 1481, 1483 (11th Cir. 1986). There must be a reasonable probability that but for c ounsel's unprofessional erro r, "the result of the proceeding would have been different," not th at it necessarily w ould have been different. Strickland , 466 U.S. at 693. The probable res ult need not be an acquittal. A reasonable probability of being found guilty of a less er charge, or a shorter sentence, satisfies the second pr ong in Strickland

. See Zimmerman , 823 S.W.2d at 225 (citing Chambers v. Armontrout , 907 F.2d 825, 832 (8th Cir. 1990)).

In Hellard v. State , 629 S.W.2d 4 (Tenn . 1982), our supreme court made the following pronouncements:

Although ... we adopted a hi gher standard of competence for the legal representation required in criminal cases, we di d not require perfect repr esentation.17 Moreover, the defense attorney 's representation, when questioned, is not to be measur ed by "20-20 hindsight."

*** It cannot be said that incompetent r epresentation has occurred merely beca use other lawyers,judging from hindsight, could have made a better choice of tactics.... [W]e know that a criminal trial i s a very dramatic, vibrant and tense contest involv ing many variables

and that counsel must make quick and di fficult decisions respecting strategy

and tactics which appear proper at the time but which, later, may appear to others, or e ven to the trial lawy

er himself, to have been ill -considered. Id. at 9-10. In Hellard , our su preme co urt adop ted the r ational e of United St ates v. DeCoster , 487 F.2d 1197, 1201 (D.C.Cir. 1973):

This court does not sit to sec ond guess strategic and tactical choices made by trial counsel. How ever, when counsel's choices are uni nformed because of inadequate prepara tion, a de fendan t is denie d the ef fective assistance of counsel. Hellard , 629 S.W.2d at 9. Our suprem e court has observed that "[c]ourts are particularly cauti ous in preserving the defendant's right to counsel at a capital sentencing hearing." Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996) (internal quotatio n marks om itted). W hen, as h ere, the re has bee n no comp lete brea kdown of the adversarial proces s, the question becomes w hether the defendant was prejudiced by these deficiencies:

A convicte d defen dant mak ing a claim of inef fective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of al l the circumstances, the i dentified acts or omissions wer

e outside the wide rang e of professionally competent ass istance. In making that determination, the court should keep in mind that counsel's function, as elaborat ed in prevailing professional norms, is to make the adversarial testing process work in the pa rticular case. Strickland , 466 U.S. at 690.18 (a) The petitioner first argues that DePersio's "sever e alcohol and cocaine abuse problems" prior to and dur ing the trial prev

ented DePersio from providi ng the effective assistance of counsel. He argues that "Mr. DePersio's condition wa s, on its own, enough to sev

erely prejudice [the petitioner's] defense."
The proof at the evidentiary hearing showed that DePersio regularly abused alcohol during the ti me he represented the petitioner.Attorney Clement testified that DePersio w ould arrive at early

morning meetings wi

th a six-pack of beer and that one or more of them woul d have already been consumed.Clement recalled that DePersio was at a bar during jury deliberations on the penalty. He believed DePersio to be "inebriated." DePersio ack nowledged consuming "a l ot of alcohol and cocaine" during this time.

In State v. Hamrick , 688 S.W.2d 477, 48 1 (Tenn. Crim. App. 1985), our court reviewe

d a claim of ineffective assistan ce where counsel suffered an "acute illness during the trial." At one point duri ng trial, counsel had to be taken to the Loudon County Memorial H ospital. Id. The trial judge consulte d with trial counsel and indicated that he w ould declare a mistrial i f necessary. Counsel informed the trial judge he felt "good enough to continue." Id. On appeal, the defendant argued he was denied the effective assistance of counsel. Relying on Strickland 's requirement of both deficienc y in performance as wel l as a showing of prejudice, this court deni ed relief. Id. at 482. Both deficiency and pr ejudice must be shown. In this instance , the general condition of DePersio before or during the course of trial would not , standing alone, entitle the petitioner to relief.5 Garrison also challenged the performance of DePersi o. The Court of Cri minal Appeals fo und that use of excessive alcohol was no t a basis for relief but did grant reli ef because of cou nsel's failure to com mun icate a plea offer to the defend ant prior to trial. Garrison , sli p op. at 25. 19 There ar e few case s in this st ate in whic h a claim o f ineff ective assistance has been made due to couns el's intoxication. I n State v. John C. Garrison , however, one of the clai ms of ineffective assistance of counsel was that counsel was absent from w ork and did not adequately prepare for trial "due to depression or excessi

ve alcohol use." C.C.A No. 03C01-9702-CC-00047, sl ip op. at 25 (Tenn. Crim. App., at Knoxv ille, Feb. 27, 1998), app. filed , April 29, 1998. In Garrison , this court ruled that ther e must be a showing of preju dice before relief could be granted on the basis of alcohol abuse. Id. 5
These rulings are consis tent with the majority

of jurisdictions. See Jeffrey L. Kirchmeier, Drink, Drugs, and D rowsiness: The Constit utional Right to Effective Assistance of Counsel and the Strickland Prejudi ce Requirement , 75 Neb. L. Rev. 425, 453 (1996). The feder al courts have ruled tha t the abuse of drugs or alcohol is not "in and of itself, relevant to an ineffective as sistance claim." Berry v. King , 765 F.2d 451, 454 (5th Cir. 1985). The Fifth Circuit has followed this reasoning even where the allegations supporting the ineffective assistance claim were that the defendant could smel l alcohol on the attorney's breath during the tri al and that, immediately afterw ard, the attorney entered a faci lity for treatment of alcohol abuse. Burnett v. Collins , 982 F.2d 922, 930 (5th Cir. 1993).

It is of particular concer n that in a case of this magnitud e, one of the two defense attorneys suffered from al coholism or drug addicti on. Professional standar ds deman d much of the benc h and the bar. Litig ants expe ct and de serve sobriety among the officers o f the courts. These circumstances reflect poorly on the criminal justice sy

stem. Yet alcohol or drug abuse by the defense attorney,without20 specific proof of its effect on performance, does not merit relief.
(b) The petitioner's next complaint is that counsel failed to en gage in regular consultation. Prior to trial, the peti tioner filed a motion seeking new counsel. The petitioner complained that he had not seen his attorney in seven months, except for a few moments before the suppression hearing, which had been held some five months earlier. At the hearing, the petitioner described their meeting as follows: We didn't have any kind of conference. It w as just, I came into the court room and came up he re, did it, and then went back. No follow up and nothing beforehand-- before or after. DePersio admitted that he did not consult with the petiti oner. Clement's testimony corroborates the claim that DePersio did not engage in any meaningful conversations with the petitioner. Yet Cl ement testified that he himself had met w ith the petitioner on several occasions.

The trial court found as follow s: (D) Failure to consul

t with the petitioner at

all crucial stages of the proceedings. At the [post-conviction] hearing, the petitioner chose not to testify.... There is some evidence petitioner s ought new counsel pretr ial ... but the record reflects that the petitioner abando ned his motion.... No [other] evi dence was presented that the petitioner's other attorney failed to adequately communicate with him. The cour t concludes that the petitioner has failed to meet his burden of proof regarding this all egation. In Baxter v. Rose , our supreme court emphasiz ed the importance of consultation between the attorney and client. 523 S.W .2d at 934. The purposes are to "elicit matters of defense" and apprise the accuse d of "potential strategies and t actical choices." Id. at 933.21 Clearly, DePersio

failed to achieve the minimum st andards in the area of client consultation. On the other hand, Attorney Clement,who was appointed about two months before the trial, did regularly confer with the petitioner on matt ers pertinent to his defense. His effort is worthy of mention. The question is whether the petitioner has shown by a preponderance of the evidence that DeP ersio's failure to meaningfully communicate w ith him from May of 1990 through November of 1990 affected the outcome of the trial.

The short answer is no. There are few indications i n the record that DePersio would have changed the trial strategy had he conferred more regularly with Brimmer during

this period of time. Because the petitioner has failed to satisfactorily prov

e how this lack of communicati on might have affected the results of the trial, no relief can be g ranted on this basis. In thi s regard, the evidence does not preponderate against the findi ngs of the trial court.
(c) The petitioner also argues that his attorneys w ere ineffective for failing to present psychologi cal testimony at the suppr ession hearing. He conte nds that psychological testimony should have been used to "show that [he] was especially susceptible due to mental and emotio nal disorders and may hav e told the authorities whatever they w

ished to hear." He submits tha t his trial counsel faile

d to consider the use of psychological evidence until sever al months after the suppression hear ing and points out that Dr. Engum h ad not been asked to render an opini on on the confession until the trial began.

At trial, defense counsel soug ht to introduce Dr. Engum' s testimony to show that the petitioner may have given a false confess ion due to "Prisoner of War22 Syndrome." The state objected and the trial court conducted an ex tensive jury out hearing during which Dr. Engum testified that sensory deprivation occurring in solitary confinement might result in a false statement by the prisoner in order to please his captors. Dr.Engum testified that the petiti oner was susceptible to giving a false confession. The trial court excluded the evidence as unreliab le but also observed that this psy

chological testimony "would have been vita lly important for the record at the time I made my dec ision [at the suppression hea ring]."
In the original appeal, the petitioner argued that the trial judge's ruli ng amounted to a violation of his r ight to present a defense. Brimmer , 876 S.W.2d at 79. Our supreme court, however, ruled that the trial court did not abuse his discretion by disall owing the testimony. Id. In consequence, that issue may not be revisited by this

court.
At the post-conviction h earing, the trial judg e made the following findings as to this clai m:

(A) Failure to adequately investigate all pretrial motions, including motions for inv estigative serv

ices and motions relating to the suppression of his confessions while in custody in Texas. Trial counsel investigated and fully litigated all Fifth and Si xth Amendment claims relati ng to the petitioner's confessions i n Texas. The issue was determined to be without meri t in the trial court and on direct appeal. The petitioner has failed to mee t his burden of proo

f with respect to any o

ther possib le claims relating to the suppression of his confessions.
In our view, the petitioner has shown no prej udice by the failure to present psychological

evidence at the suppressi on hearing. Whenever the claim of ineffective assistance is ba sed on the failure to submit proof, the re must be a showing of what the ev idence would have been. State v. Davis , 912 S.W.2d 689, 698 (Tenn. 1995). In the absence of that, there can be no speculation as t o what23 the psychological ev

idence "would have show n and ... how it would

have benefitted" the petitioner. Id. No such evidence appears in this record.

Moreover, even if the t

estimony of Dr. Engum had been pr esented at the suppression hearing, the confession would not have been excluded. In Colorado v. Connelly , 479 U.S. 157, 164 (1986), the United States Suprem e Court ruled that "a defendant's mental condition, by itself and apart from its relation to official coercion" does not render a statement involuntary . Because the rule of exclusion has been establi shed as a deterrent to police misconduct, coercive ac tivity on the part of law enforcement is a necessary predicate to finding that a confession is not voluntary under

the Due Process Clause. Id. at 165.

(d) The petitioner also makes the g eneral claim that his tri al counsel failed to perform an adequate investi gation. Assistant Dis trict Attorney Jan Hi cks filed a sworn statement that she adv ised DePersio of her office's open fil e policy in May of 1990. She stated that DePersio never "avail[ed] himself of this offer." No discovery was conducted until Cl ement was appointed co-counsel seven months later. Clement testified that Ron Johnson,an attorney with the p ublic defender's office, had conducted some investigation. Also, the trial court appointed an investigator, Mike Cohan, to assist i n the preparation of the defense.

In Baxter v. Rose , 523 S.W.2d at 932, our supreme court set forth the following standards on i nvestigation:

Counsel must conduct appropri ate investigations, bo th factual and legal, to determine what matters of def ense can be developed. The Supreme Cour t has noted that the adversary sy

stem requires that all available defenses are raised so that the government is put to its proof. This means that in most cases a defense attorne y, or his24 agent, should intervi ew not only his ow n witnesses but also those that the gover nment intends to call, when they are accessible. The inv estigation should alw

ays include efforts to secure information in the pos session of the prosecution and law enforcement authorities. And, of course, the duty to inv

estigate also requir

es adequate legal research.
The preparation of the defense was dela yed by the inaction of DePersio. Professional st andards require a more ti mely effort. Yet there has been no proof offered as to what more tria l counsel would have discovered had he begun the investigation ear

lier. Thus, we agree with the assessment of the tri al judge that the petitioner has failed to establish prejudice.
(e) The petitioner also complains that his trial counsel w as ineffective for failing to object to testi mony at trial that he had "ki lled before." The state argues th at counsel properly w

anted to avoid any emphasis on the statement in the presence of the jury.
Sheriff Jim Hodges, of Refugio County, Texas, testified during direct examination as to the circ umstances surrounding petitioner's written confess ion: We talked to him, and he said that he did kill this Mr. Compton and that the reason -- I had told him that I felt like he had killed before and that was the reason he was holding back, beca use he didn't want to tell about everything . And so he said, yeah , you're righ t. I have killed before, and I did kil l Mr. Compton. The reference does not appear to have been solicited by the stat e and no objection was made to this testimony

.

On re-direct examinati on at trial, the followi ng exchange occurred : Prosecutor: How far did you actually get i nto the25 interview, when you all first set down for t he intervi ew, before he sta rted crying? Sheriff Hodges: Probably r ight after he came back with the jailer and sat down a nd we started talking to him and he started answering questions; and the more we got into it, you kno w, it was catc hing up with him and, like I say, he was just unloading and he had this burden that was bothering him a lot about this murder and some others. On re-cross, the follow ing exchange occurr

ed: DePersio: Now then, from the time that he began to talk after the jailer brought hi m back, was Moldenhauer and Hernandez present? Sheriff Hodges: Yes, sir. DePersio: So if he had said, I've killed before, they would have heard that; is that cor rect? Sheriff Hodges: I would thi nk so. I'm not sure.
In the very last par

agraph of closing argu ment at the guilt phase, the state made the following ar gument: There is ... what one would call the Soddi defense, S-O-D-D-I. Some other dude did it. Who? It's not there. It's easy t hough to f antasize . One coul d fanta size anything. One could fantasi ze Martian s coming d own and doing it. But that's not what the proof in this cas e is. I trust you to use your

common sense. ... Mr. DePers io said so mething t o you and I have the right to respond, to make a fair response to something that he said. And w hat he said to you and I quote, "Nothing in his background to suggest he is a killer." Recall w

hat the sheriff said to him when h e was alone with him. He said, son, you've killed before. And that's truth, members of the jury, not speculation. (Emphasis added).

At the post-conviction h earing, DePersio testi fied that he had filed a motion in limine to limit r eference to any prior cri mes. He recalled that his usual practice in this type

of situation, where a state witness has not complied with a26 pretrial order limiting testimony, is to address the matter outside the jury's presence during a recess. DePersio acknowledged he did not do that in this case. He testified, however, that he did not make a contemporaneous objec tion because he did not want to draw fur ther attention to it. Clement characterized his ow

n failure to object as unforgivable.

On direct appeal, the petitioner argued that the admission of this testimony denied him his r ight to due process. Brimmer , 876 S.W.2d at 80. Our supreme court ruled as follows:

Our investigation of thes e complaints indicates initially that the i ssue was waived.There was no contemporaneous objection when any of these allegedly objectionable remarks w ere made. Defendant did not request the Court to instruct the jury to disregard comments about other killings. ... Moreover, thi s issue was not raised on the motion for new trial. Certainly it would have been better if none of the remarks had been made .... Under the circumstances and evidence in this case we do not think these incidents constitute reversible error. Id. (emphasis added).

In the order denying pos t-conviction relie

f, the trial judge made the following findings and conclusions:

(I) Failure to enforce pr etrial rulings regarding the admission of evidence that the petitioner had killed before. This issue has been prev iously determined on direct appeal [and it has been de termined that the] petitioner suffered no prejudice fro m this evidence. [Counsel was not ineffectiv e in this regard.]
Clearly, the supreme court considered the merits of the petitione r's claim that the "killed before" r eference qualified as error.The ruling was that the evidence should not have been permitted but was nonetheles s not reversible in the context of the entire trial . While the issue has been raised here in a context of27 ineffective assistance of counsel , the supreme court held that if there was error by the failure to exclude the r eference, no prejudice resulted . That conclusion by the supreme court controls. Ev en if counsel was deficient for having failed to further object to the reference made by the witness, our supreme c ourt has already determined that the deficiency h ad no effect on the results of the trial

.
(f) The petitioner also complains that his attorney was ineffective for failing to object to the int roduction of statements he made whi le being transported from Texas to Tennessee. Detectiv e Richard Foschino testified at trial that he and Captain Bob Higgs of the And erson County Sheriff's Depar tment returned the petitioner to this state. Detective Foschino tes tified that the petitioner disc ussed the homicide "freely": The way the conversation started out about the

homicide itself was, w

e were talking about--David had been talking about his past and about how he had been a victim of abuse when he w as a child. He started tal king about victims that Mr. Compton may have had in the past. And when I started ta lking to him about that, he started clarifying it, saying that when he met with Mr. Compton on the road and they w ent into the park area, that Mr. Compton had said somethi ng about he could get some children for David. And David became very upset with him at the time. And he was referring to sex ual activity with these children. And David talked quite a bit about that. That brought his recollection to another case also that involved c

hildren.
At that point, defense cou nsel objected a nd the following e xchange occurred: Prosecutor: Let me point out that no suppression motion

had been filed about this. DePersio: We know that. Nobody's talking about ....

*** DePersio: Well, we object to any conversations28 concerning the homicide investigation, that's the subject matter o f this inve stigation here toda y. Court: You have not rec eived statements about that? Prosecutor : They have received them. DePersio: I have no idea. Prosecutor: Because he hasn't looked at the fil e. Only Mr. Clement has copied the file, and he had it in Foschino's blue file that had al l the statements .... (Emphasis added).

The petitioner now argues the admissibility of the statements shou ld have been litigated pret rial. He points out that DePersio had not review ed the statements before the trial began

.

It is true that motions to sup press evidence must be hear d before trial. Tenn. R. Crim. P. 12(a)(3) . Clearly, defense counsel should have review

ed the statements before trial. A failur e to review the state ments pretrial or to file th e motion to suppress pretrial , while qualifyi ng as deficient performance, does not establish any prejudice. Nothing in this record indicates that the statement would have been suppressed had a motion been timely filed. This is a prerequisite for the grant of relief. Because the petitioner has failed to show that a motion to suppress would have been success ful, no prejudice could have resulted from the inaction of his counsel.
(g)

The petitioner also complains that his trial counsel w as deficient for failing to effectively pr

epare or present psychol ogical testimony in the sentencing phase of the trial. He argu es that attorney Clement fail ed to elicit sufficient testimony from Dr. Engum to support an instruction to the jury on two statutory29 mitigating circumstances: first, that the defendant suf fers from a mental disease which affected his judgment and, second, that the murder was committed while the defendant was under the influence of ex treme mental or emotional distur bance. See Tenn. Code Ann. § 39-13-204(j)( 2), (8). He further submit s that he is entitled to relief under Goad , 938 S.W.2d at 365, where our supreme court found c ounsel was ineffective for failing to pres ent "the available exper t mitigating eviden ce of mental illness."
During the sentencing phase, the state argued three aggravating circumstances: that the murder was heinous, atrocious , and cruel; that the murder was committed to avoid ar rest; and that the murder w as committed in furtherance of a robbery. Tenn. Code Ann. § 39- 13-204(i)(5), (6), ( 7). The jury found only one, that the murder was committed in furtherance of the robbery. Tenn. Code Ann. § 39-13-204(i)(7). The defense the ory during the penalty

phase of the trial was that the defendant had been severely abused as a child, had been abandoned repeatedly by his par

ents and foster parents, and had suffered a s eries of personal rejections, all of whi ch should mitigate agains t a death sentence.
Dr. Eric Engum testified during the penalty phase that the petitioner suffered from borderline personality disorder, which is

a "long-term personality disorder dysfunction that manifests itself in impu lsive[ness] and unpredictability in behavior, emotional wi

thdrawal from people ... times of intense anger... [and] a sense of loss of personal identity." The most impo rtant consequence of this disorder is the "inabili

ty to maintain any kind

of enduring relationship w ith other people."
Dr. Engum explained that several factors contri buted to the formation30 of this disorder. The petitioner 's mother was an alcoholi c who abandoned him at a very early ag e; in consequence, the initi al maternal attachment never o ccurred. It also developed that the petiti oner never had any contac t with his father. Dr. Engum learned from recorded data that the petitioner had been transferred from one foster home to another. Records indic ated that the petitioner was forced to sleep in the basement of one home while the foster pa rents focused all of their attention on their biological children.He was also abused w hile living in the home. Eventually, the petitioner was discov

ered "playing doctor" w ith one of the foster parents' biol ogical children and was placed in Devereau Foundation, which is a home for severely emotionally disturbed chi ldren. The petitioner ran aw ay from the Devereau Foundation several times.

Based upon many of the same circumsta nces, Dr. Engum testified tha t the petitioner also suffered from "Bu rned" or Abandoned Child Syndrome. Dr. Engum testified that individuals diagnosed with this syndrome have repeatedly suffered emotional injuries and ev entually withdraw

"into [a] shell."
Dr. Engum testified that the petitioner became a drifter and, after being released from Devereau, nev er established any lasting relationships, although he had an "on-again, off-again" rela tionship with a woman named Mary, who is th e mother of his two children.The petitioner had been institutionalized from time to time and functioned well in that type of environment. At one po int, after his release from Devereau, the petitioner was institutionaliz

ed at West Texas Hospital. The hospital diagnosed the petit ioner as having a factitious disorder, whic h occurs when an individual feels so hel pless and isolated that he seek s to play the role of patient

. On cross-examination by the state, Dr. Engum conceded that between 500,000 and two million people suffer from a bor derline personality di sorder.31 At a bench conference during the trial, the trial judg e and counsel discussed which of the stat utory mitigating c ircumstances should be instr ucted to the jury. One of the mitig ating circumstances dis cussed was that the "murder was committed while the defendant w as under the influence of extreme mental or emotional dis turbance." T enn. Code Ann . § 39-13-204(j) (2). The trial jud ge suggested that there mig ht be no proof of that circumstance and DePersio, who had yielded psychological preparations to Attorney Clement, inexplicably agreed, simply saying that one was "out." Another claimed mitiga ting circumstance w

as that the "capacity of the defendant to apprecia te the wrongfulness of [his] conduct or to conform [his] conduct to the requirements of th e law was substantially impaired as a result of mental disease or defect or intoxication whic

h was insufficient to establi sh a defense to the crime but which substantially affected the defendant's judgment." Tenn. Code Ann. § 39-13-204(j)( 8). The trial judge, appar ently referring to the insanity defense as defined in Graham v. State , 547 S.W.2d 531 (Te nn. 1977), refused to instruct on that miti gating circumstance bec ause "the magical words

... weren't developed duri ng proof." Defense counsel did lo dge an objection to the refusal to charge Tenn. Code Ann. § 39-13-204(j)(8).

The trial judge provi ded the following instr uction to the jury on mitigating circumstances:

In arriving at this determination, you are authorized to weig h and consider any mitig ating circumstances and any of the s tatutory aggrav

ating circumstances which may have been raised by the evidence throughout the entire course of this trial, including the guilt-finding phase or the sentencing phase or both.

*** Tennessee Code Annotated 39-2-203(j) , provides that in arriving a

t the punishment, the jury s hall consider as heretofore indicated any mitigating circumstanc es which shall include , but not be limi ted to, the fo llowing:32 Number one, the murder was c ommitted under circumstances which the defendant reasonably believ ed to provide a moral justi fication for his conduct; tw o, any aspect of the defendant's character or record, or any aspect of the circumstances of the offense fav orable to the defendant which is supporte d by the evidence. If you unanimously determine that at least one statutory aggravating circumstance or several statutory aggravating ci rcumstances have been prov ed by the State beyond a reasonable doubt, and said circumstan ce or circumstances outweigh any mitigating circumstance or circumstances, the sentence shall be death. The jury shall state in writing the statutory ag gravating circumstance or statutory aggravating circumstances so found, and signify in wr iting that the statutory

aggravating circumstance or circums tances outweigh the miti gating circumstance or circums tances so found.
On direct appeal of the convi ction and sentence, the defendant arg ued that the trial court err

ed by refusing to instr

uct Tenn. Code Ann. § 39-13-204(j) (2) and (8). By

a 3-2 vote, our supreme court rejec ted the clai m: Defendant says he was prej udiced by failure to instruct mitigating

circumstances [Tenn. Code Ann. § 39- 13-204(j)(2) and (8)] raised by the evidenc e. ... The trial court declined to instruct the jury on these factors because he found no evidence in the r ecord that as a result of mental disease the defendan t could not conform his conduct to the requir ements of the law. ... The trial court was of the opinion that the disorder was prevalent even among law abiding persons, and in the absence of specific proof or a statement of causati on about the relationship between the di sorder and the offense, the instruction was not w

arranted. We do not find anything in the record to dispute thi s finding. The issue is w ithout merit. Brimmer , 876 S.W.2d at 82-83 (seco nd emphasis added).

The majority of our supreme cour t decided that the failure of the defense to prove the connection bet ween the anti-social per sonalty disorder and the offense precluded instructions on the statutory mitigati ng circumstance. Id. (No mention was made o f Dr. Engu m's diagn osis of A bandon ed Child S yndrome) . Two33 of the five justices dissent ed from this ruling, concl uding that the petitioner had established that he suffered from a mental disease or diseases which could impair his ability to appreciate the wrongfulness of his conduct or conform his conduct t o the law. The dissent arg ued that there should be no requ irement to establish any connections between the diso rder or disorders and the criminal acts of the defendant, suggesting that the majority had confused the conce pts of the insanity defense and mitigating cir cumstances. One of the dissenters proclaimed that the use of the "magical words" i n this context was abs olutely unnecessary. See Brimmer , 876 S.W.2d at 88 (Reid, Ch. J., and Daughtrey, J., dissenting); Tenn. Code Ann. § 39-13-204(j)(8) . Neither the majority nor the dissenting opini ons commented upon the applicability of Tenn. Code Ann. § 39-13-204(j)( 2), that is, that the murder w

as committed while the defendant was under the influence of ext reme mental or emotional disturbance. Id. That is understandable; DePers io, of course, had conceded at trial that this possible mitigating circumstance had no applicati on.
At the post-conviction h earing, Dr. Engum testified that in January of 1991, well before trial, he advised defense counsel that th e petitioner was competent and that an insanity de fense could not be supported. At that time, he also mentioned to defense counsel tha t he believed there to be mitigating evidence available to the petitioner. He recalled that the next time he was asked to discuss his possible testimony was "about an hour or so before the sentencing phase of the trial began." "After he told them [he] couldn't support the Graham standard, and found him co mpetent [he ] told them tha t [he] could say so mething in sent encing, [but he] didn't hear from them agai n until the day the trial started." Dr. Engum asserted that he could have t estified that both of the statutory mitigating circumstances at issue, Tenn. Code Ann. § 39-13-204(i)(2) and (8), were present; he testified that defense counsel "a bsolutely" never mentioned either of these34 mitigating circumst

ances before or during his testimony.
At the evidentiary hear ing on this post-conv

iction claim, Dr. Eng um uncategorically stated that in his opinion "David Brimmer committed this off ense while under the influence of ex treme mental or emotional distur bance." See Tenn. Code Ann. § 39-13-204(j)(2) . He also testified that "Dav id Brimmer's capacity

to appreciate the wrongfulnes s of his conduct or to conform his conduct to the requirements of the law, was substantially impaired as a result of mental di sease or defense--insufficient to establish a def ense to the crime, but which substantially affected his judgment." See Tenn. Code Ann. § 39-13-204(j)(8). Other than these specific references to the enumerated m itigating circumstances, the testimony of Dr. Engum at trial and on post-c onviction was essentially the same.
Attorney Clement testified that he conducted the entire exa mination of Dr. Engum at the sentencing hearing. He recalled

being generally s

atisfied with the content of Dr. Engum's testimony despite the trial court's refusal to give jury instructions on the two

statutory mitigatin g circumstances in q uestion.
The post-conviction court made the following finding s: (B) Failure to inv

estigate and present evi dence of mitigating factors rel ating to his background and mental state at the sentencing. Trial counsel presented expert testimony at sentencing h earing phase ... relatin g to abandoned child syndrome. [A]n investigator testi

fied at the original trial c

oncerning petitioner's troubled childhood.... The jury had ample evidence of petitioner's background

and mental hi story. [W]hile ... some evidence [was] presented at post-conviction evidentiary hearing that the expert may not have been prepared until later stages of [] inves

tigation, [no prejudice h as been shown.]
This finding suggests an "investigator testified concerning petitioner's35 troubled childhood." The transc ript of the sentencing heari ng does not support that conclusion. The reference to an "investigator" may have been inadvertent because the only witness who testified for the petitioner in the sentencing phase was Dr. Engum. The finding does not address the more important question of w hether the petitioner was prejudiced by defense counsel's failure to elicit testimony which would have supported jury i nstructions on the relev ant statutory mitigati ng circumstances.
Both the petitioner and the state have addressed this iss ue under Goad v. State , 938 S.W.2d 363 (Tenn. 1996), a case in which the supreme court set forth the standards for review ing claims of ineffective ass istance of counsel for failure to present availab le mitigating evi dence in the sentencing phase of a c apital trial. While acknowledging that defense counsel does have a duty to prepare and represent the client, our s upreme court in Goad held that there is no absolute requirement that counsel pr esent mitigating evi dence at the sentencing heari ng. Goad , 938 S.W.2d at 369, 3 70. Where mitigating evidence does exist, however, it should be presented. Id. Our supreme court has emphasi zed the duty of trial cou rts to "preserv[e] a defendant's r ight to counsel at a capit al sentencing hearing." Id. (internal quotation mark s omitted). In Cooper v. State , this court held that "'[i ]t is the duty of the lawyer to

conduct a prompt investigation of the circumstances of the case and to explore all a venues leading to the facts relevant to the merits of the case and the penalty in the event of co nviction. '" 847 S.W.2d 521, 53 1 (Tenn. Cri m. App. 1992) (quoting A.B.A. Standards for Criminal Justice (2d ed.), The Defense Function § 4-4.1), aff'd , 849 S.W.2d 744 (Tenn. 1993).

The comments to this section have been quoted with approval by this court in Adkins v. State , 911 S.W.2d 334, 35 6 (Tenn. Crim. App. 1994):

The lawyer also has a substantial and important role to perform in raising mitigating factors both t o the36 prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the str ength of statements made to the lawyer by the defendant. Information concerning the defendant's background, educati on, employment record, ... relationshi ps, and the like, will be relevant, as will mitigating

circumstances surroundi ng the commission of the offense itself. Investigati on is essential to fulfilment of these functio ns. The United States Supreme Court has held that mitigating ev idence is relevant to sentencing hearings and s hould be presented. See generally Californ ia v. Brown , 479 U.S. 538 (1987); Mills v. Mary land , 486 U.S. 367 (1988) (a reversal because it was probable that the jur y imposed a death sentence under the impression that the state statutory scheme prev ented jurors from considering any mitigation they

did not find unanimously to exist ); Hitchcock v. Dugger , 481 U.S. 393 (1987) (the death sentence was set aside because the trial court barred evidence of non-stat utory mitigation at the sentencing hearing); Lockett v. Ohio , 438 U.S. 586 (1978) (an Ohio statute limiting mitigation to three statutory factors was unconstitutional; the jury must not be precluded from consider ing any aspect of the defendant's c haracter or the circumstances of the offense).

This situation, however, is different from that in Goad . Here, defense counsel did present all of the then available mitigati ng evidence during the sentencing phase. The concern i s not that defense counsel failed to pr esent the available mitigating

evidence. It is that he presented expert testimony in such a deficie nt manne r that it ju stified the trial c ourt's re fusal to instruct on the two available mitigating

circumstances. Defense counsel did not establish an adequate foundation for either mitigating circumstance to be charg ed to the jury. In the w ords of our supreme court on direct ap peal, defense counsel failed to elic it a "statement of causation about the relationshi p between the disorder [or disorders] and the offense." Brimmer , 876 S.W.2d at 83. The significant question now is whether the37 failure to present the testimony in a way whic

h would have warr

anted an instruction on the statutory mitigating circumstances affected the r eliability of the death sentence.
As indicated, Dr. Engum testified at the evidentiary hearing on this post-con viction cla im that th ere was a co nnectio n between the petit ioner's t wo mental disorders and his crimes. This testimony would have been presented in relation to the statutory mitigators during the sentencing phase of the trial had the proper questions been prese nted by defense counsel. Of equal importance is that each of the two mitigating circumstances prescri bed by statute would hav e been read to the jury. It i s our view that couns el was deficient for failing to offer the "specific proof or a statement" of the rel ationship between the petiti oner's mental problems and the offenses committed. Id.

Attorney DePersio, the mor e experienced of the attorney s assigned to represent the petitioner, ex pressed little interest

in the penalty phase of the tri al. At least partly due to his

general cynicism ab

out psychological tes

ting and perhaps for other reasons, he left the prepar ations of the expert witness entirely to his cocounsel. Attorney Clement , who was invol ved in his first capita l case, worked diligently during

the short period between hi s appointment and the trial but w as burdened with the responsi bility of preparing the testimony of Dr. Engum w hen he had never before utilized an expert in a criminal case. Under these circumstances, his failure to submit the "magical words" sought by the trial judge or otherwise articulate a legitimate basis for a jury instr uction on the statutory mitigating circumstances at issue i s entirely understandabl e.

This deficiency is of sufficient magnitude, in ou r view, as to establish38 the required prejudice component. In Strickland , the United States Supreme Court held that a "defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the c ase." 466 U.S. at 693. Rather, he must show a "reasonable probability ... [that] the result of the proc eeding would have been different." Id. at 694. "A reasonable probabil ity is a probabilit y sufficient to undermine confidence in the outcome." Id. at 695. The Supreme Court offered the following guidance on determining whether pr ejudice has been established: In making this determination, a court ... must consider the totality o

f the evidence before the judge or jury. Some of the factual finding s will have been unaffected by the errors, and the factu al findings that were affected will hav

e been affected in different ways. Some errors will hav

e had a pervasive effect on the inferences to be drawn from the ev idence, altering the entire evidentiary

picture, and some will

have had an isolated, trivial e

ffect. Moreover, a verdi ct or conclusion only weakly supp

orted by the record is more likely to have been affected by errors than one with overw helming record support. Id. at 695-96.
The jury was instr ucted that if the "statutory ag gravating circumstance[s] ... outw eigh any mitigating

circumstance ..., the sentence shall be death ." The instructions on the possible aggravating circumstances were very specific and tracked the statut e. In contrast, the instruc tion to the jury on miti gating circumstances was brief and general. It was almost inevitable that the jury would conclude that at least one agg ravating circumstan ce was present, i.e., that the murder was committed in furthe rance of a felony. See Tenn. Code Ann. § 39-13- 204(i)(7). Because no spec ific instructions wer

e given on the statutory mitigating circumstances and because the instructions contained mandatory language that if the aggravating circumstances outweigh the mitigating circumstances, the "sentence shall be death," the errors by the defense made a sentence of death more l ikely.39 This situation is analogous to that in Adkins , 911 S.W.2d at 334. In Adkins , this court ordered a new sentencing hearing becau se no mitigating evidence, even though av ailable, had been presented by defense counsel. The error was deemed egreg ious: "[W]hen the state presented proof of two agg ravating circumstances and [defense] counsel ... offered no mitigating ev idence, the jury had little choice but to impose the death sentence. " Id. at 356 (emphasis added).

Our supreme court has prev iously recogniz

ed the significant effect of the failure to provide jur y instructions on miti gating circumstances.In State v. Odom , 928 S.W.2d 18, 32 (Tenn. 1996), our supreme court g ranted a new sentencing hearing w

hen the trial judge refused to provide instructions

on various nonstatutory mitigating circumstances. The court determined that when a trial court refuses to give an instr uction on a mitigating c ircumstance, he " in effect, give[s] it no weight by excl uding such evidence from the jury's considerati on. " Id. at 31 (emphasis added). The supreme cour t warned of the importance of this portion of the charge: The jury instructions [on mitigating circumstances] are

critical in enabling

the jury to make a sentenci ng determination that is demonstrabl y reliable. To ensure this reliability,the jury must be giv en specific instructions on those circumstances offered by the capital defendant as a justification for a sentence less than death. 928 S.W.2d at 31 (emp hasis added).

That rationale applies in thi s case. It is notewor thy that since the release of the opinion in Odom , our supreme court has had tw o additional opportunities to consider w hether error associated w ith jury instructi ons on mitigating evidence required r

eversal. State v. Hodges , 944 S.W.2d 346, 352 (Tenn.), cert. denied , 118 S. Ct. 567 (1997); State v. Hall , 958 S.W.2d 679 (Tenn. 1997), cert. denied , _____S. Ct. _____, 1998 WL 145257 (June 22, 1998). In Hodges , the40 defendant complained that the trial c ourt erred by denying

his requested instruc

tions on nonstatutory mitigati ng circumstances. 944 S.W.2d at 351. Instead, the trial court had instructed the jury on the following nonstatutory mitigating circumstances: history of childhood; v

ictim of child sex abuse; ment al illness or mental or emotional disturbance; dominance by another person and/or immaturity ; drug abuse; and any other aspect of the defendant's backgr ound or character or the ci rcumstances of the offense, which would reduce the defendant's blameworthiness. Id. at 355.

The supreme court emphasized that a jury instruction o n mitigating circumstances can be found "prejudicially erroneous" only if "it f ails to fairly submit the legal issues or if it misleads the jury as to the applicable law." Hodges , 944 S.W.2d at 352. The court observed that "'[j]ur ors do not sit in solitar

y isolation booths parsing instructions for subtle shades of meaning i n the same way that lawyers might.' " Id. at 352 (quoting Boyde v. California , 494 U.S. 370, 380-81 (1990)).
Our high court expla ined as follows:

Jurors interpret the instructions in a common sense manner and in light of the evi dence presented at the trial. The defense assertion ignores the reality that these jurors had heard specific ev idence during the sentencin g hearing a bout the defend ant's chi ldhood, his immat urity, alleged sexual abuse, dr ug abuse, mental illness and emotional disturbance, as w ell as the dominance by Trina Brown. By thei r breadth, the instructions on nonstatutory mitigating circumstances encompassed all the evidence presented by the defense at the sentencing hearing. ... [T]he defendant's cl aim of error is without merit. Hodges , 944 S.W.2d at 356 (citation s omitted). While the instructions specif ically requested by the defendant w ere not given, other i nstructions, as enumerated above, were provi ded to the jury whic h "encompassed all the evidenc e" the defendant presented. Id.41 In Hall , the trial court refused to grant seven different req uested instructions on nonstatutory mitigating circums

tances which dealt w

ith the defendant's youth, immaturity , and emotional problems. 958 S.W.2d at 697-98. Our supreme court found the trial court's refusal to give the requested charge did not constitute "prejudicial error." Id. at 698. Two factors were critical to the court's conclusion. First, the rejected instructions on nonstatutory mitigatin g circumstances had already been addressed i n the instructions prov ided on statutory mitig ating circumstances. Second, the tr ial judge did provi de an additional instructio n on mitigating evidence :

A mitigating circumstance is any aspect of Leroy Hall, Jr.'s, character, back

ground history, or physical condition or the nature and circumstances of the crime which in fairness or mercy, call s for a sentence less than death. .

.. The law does not identify or limit what you can c

onsider concerning [Hall's] character, background hi story, any physical condition or

the nature and circumstances o f the crime that are mitigatin g. Hall , 958 S.W.2d at 697.

In both Hall and Hodges , the trial judge denied c ertain of the defendant's requested instructions; new sentencing hea rings were denied by the supreme court only because other instructions were given which were substantially the same as those rejected. In ea ch case, the instructions fairly submitted the leg al issues to the jury. The j ury was giv en detailed instructions on the statutory and nonstatutory mitigatin g circumstances raise d by the evidence.

This case is less like either Hodgesor Hall than Odom , wherein our supreme court ruled that where the appropriate instruction on mitigating evidence is not provided, that evidence is, for practical purposes, "exclud[ed] ... from the jury's consideration." 928 S.W.2d at 31. Due to his c ounsel's errors in thi s case, instructions permitting

the jury to consider that the defendant suffered from a mental42 disease or that the murder was commit

ted while the defendant w as under ex

treme mental disturbance were r ejected. See Tenn. Code Ann. § 39-2-204(j)( 2), (8). A brief, general instruction that the jury could consider "any aspect of the def endant's character or record, or

any aspect of the circumstanc es of the offense favorable to the defendant" was inadequate becaus e it failed to address the defendant's mental illness or mental conditi on at the time of the offense. "To ensure ... rel iability, the jury must be given

... instructions on those circumstances offered by the capi tal defendant as a justification for a senten ce less than death." Odom , 928 S.W.2d at 31.
Because the jury imposed the sentence of death without being allowed to consider either of these mitigating circumstances, the death se ntence is unreliable and our confidence in the verdict has been undermi ned. Strickland , 466 U.S. at 695. The proof by the state was not so overwhelming that the jury would have inevitably i mposed the death sentence. The jury rejected two of the aggravating ci rcumstances submitted by the state. The single remaining aggrav ating circums

tance w as that the murde r was c ommitted

in furth erance o

f a felony. Thus, the instructi ons warranted by the ev idence might have made a difference in the sentence imposed by the jury. Under these circumstances, a new sentencing hearing must be granted.
(h) The petitioner also argues counsel was ineffective for failing to include all possible grounds for relief in the motion for new tr ial. Specifically, the petitioner complains that the following issues should have been pr esented: the confusing nature of the jury instruc tions on mitigating ci rcumstances, the prejudici al statements by Sheriff Hodges about the petitioner's having "killed before," th e prosecutor's43 argument abou t petitioner's h aving "killed bef ore," and the c ourt's refusa l to charge the requested mitigating circumstances.
The petitioner's complaint about the "conf using nature of the jury instructions on mitigating circumstances" is unclear. The petitioner has not indicated why the g eneral instructions prov ided on possible mitigati ng circumstances are unclear. The real probl em, as indicated, is trial counsel's failure to prepar e and present the available evidence to substantiate a charge on the possible statu tory mitigating circumst

ances.
Counsel attempted to raise the i ssues about the testimony and argument about the "killed before" issue on direct appeal. The sup reme court ruled as follows: Our investigation of thes e complaints indicates initially the issu e was waived. Ther e was no contemporaneous objection when any of these allegedly objectionable remarks w ere made. Defendant did not request the Court to instruct the jury to disregard comments about other killings. The record indicates that Sheriff Hodges was not being responsive to the State's questions when the referenc e to prior killing s was made. There is no indication the Stat e intentionally elici

ted these remarks. Moreove r, this issue was not raised on the motion for new trial. Certainly it wo uld have been better if none of the remarks had been made . ... Under the circumstances and evi dence in this case we do n ot think these incidents constitute reversible error. Brimmer , 876 S.W.2d at 80. Although counsel may hav e been deficient in failing to raise that particular issue in the motion for new trial, we cannot find prejudice because the supreme court rev iewed the substance of the complai nt and ruled no reversible error occurred.

The petitioner also complains that counsel should have included in the motion for new trial that the court refused to charge the requested mitigating44 circumstances. On direct appeal, the defendant argued "he wa s prejudiced by failure to instruct mitigating circumstances rai sed by the evidence." Id. at 82. The supreme court review

ed the issued and found it to be "without merit." Id. at 83. Because the supreme court rev iewed the merits of this i ssue, the petitioner has shown no prejudice.
(i)

The petitioner also complains that counsel was ineffectiv e for failing to present as an issue the tw enty-one-day detention of the petitioner prior to his giving a confession. An unreasonable length of det ention without a probable cause determination violates the Constitution. Gernstein v. Pugh , 420 U.S. 103 (1975). At the time of petitioner's trial, Tennessee fo llowed the "seventy-two hour rule" which required a probable cause determination within sev enty-two hours. Wynn v. State , 181 S.W.2d 332, 334 (Tenn. 1944); see also State v. Readus , 764 S.W.2d 770 (Tenn. Crim. App. 1988).

Given the facts of the case, w e have no hesitation in conc luding that trial counsel should hav e pursued this as a means of suppres sing the confession. That determination does not end our inquiry, however, as the petitioner must still show prejudice. As we explain in more detail below, we conclude the petitioner is entitled to no relief because he ha s not demonstrated by a preponder ance of the evidence that he did not rec eive a prompt determination of pr obable cause. That determination controls our r esolution of this issue. Becau se we cannot conclude counsel would have prevailed on the motion to suppress, we cannot find prejudice as required under Strickland

.45 II The petitioner next argues that his confession should be sup pressed because he was held in custody for forty days before a probable cause determination occurred. See State v. Huddleston , 924 S.W.2d 666 (Tenn. 1996). In Gerstein v. Pugh , 420 U.S. 103, 114, 125 (1975), the United States Sup reme Court ruled that the "Fourth Amendment requires a judicial determin ation of probable cause as a prerequisite to extended restraint of li berty following ar rest" and that the determination "must be made ... either before or promptly after arr est."
In 1991, the Supreme Court defined what is "promp t" under Gerstein

. County of Riverside v. McLaughlin , 500 U.S. 44 (1991). The Court ruled that a "judicial determination of probable cause within 48 hours of arrest will, as a general matter, comply

with t he promp

tness r equire ment of Gerstein ." Id. at 56. For hearings occurring before f orty-eight hours pas s, the arr ested ind ividual mu st "prove that his or her probable caus e determination was delay ed unreasonably." Id. The Court fo und, howe ver, that wh ere a prob able cau se determ ination occurs af ter fort yeight h ours, t he "burd en shift s to the governm ent to de monstra te the ex istence of a bona fide emergency or other extraordinary ci rcumstance." Id. at 57. The Supr eme Court has held that the rule in McLaughlin , "'is to be applied retroactively to all cases, state or federal, ... not yet final' when the rul e [was] announced." Powell v. Nevada , 511 U.S. 79, 80 (1994) (quoting Griffith v. Kentucky , 479 U.S. 314, 328 (1987) (omission in ori ginal)).

Our supreme court has held that where the rule in McLaughlin is violated, the exclus ionary rule is the appr opriate remedy. Huddleston , 924 S.W.2d at 673. The court ruled that "apply ing the exclusionary

rule to evidence obtained as a result of the illegal det ention will deter further violations." Id. Any confession46 obtained in vi olation

of McLaughlin must be excluded unless the state can demonstrate the confession is "suff iciently an act of free will to purge the primary taint." Id. at 674. Four factors are rel evant in reaching thi s determination:

(1) the pres

ence or absence o

f Mirandawarnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and finally, of particular s ignificance, (4) the purpose and flagrancy of the official misconduct. Id. at 674-75. The burden of proving the admissibility of the c onfession rests on the prosecution. Id.

The petitioner argues that he is entitled to relief under Huddleston , insisting its rul e of exclusion is a new law which should be applied retroactivel y. In our view, howev

er, the petitioner has failed t o demonstrate by a preponderance of the evidence that he did not receive a prompt judicial determination of probable
cause.

On Februa ry 3, 1990, the petit ioner was a rrested in Refugio C ounty, Texas, on charges unrelat ed to this case. The next day , he appeared before a Justice of the Peace. Bail w as set at $1000. The petitioner w as unable to secure a release. On February 24, 1990, the petitioner sig ned a written confession. O n March 1, 1990, he was returned to this state to face the firs t degree murder charge. A preliminary hearing

was held on this charg e on March 15, 1990.
On February 4, 1990, a Tex as magistrate signed the following document: Before me, the undersigned magis trate of the47 State of Texas on this day per sonally appeared [the defendant] ... and said person was given the following warning by me: (1) You are charged w

ith the offense of evading arrest. An affidavit charging y

ou with this offense ... (has n ot) been filed in this Court. [the option on the form stating an affidavit has been filed was marked throug h, indicating an affidavit had not been filed]. (2) You have a right to hire a lawyer and have him present prior to and during any interview and questioning by peace officers or attorney s representing the State. .

.. (3) You have the rig ht to remain silent. (4) You are not requi red to make a statement, and any statement you make can and may be used against you in Court. (5) You have the rig ht to stop any intervi ew or questioning at any ti me. [an option (6) to advise of the right to an examining trial was marked through, ind icating the petitioner w as not advised of the right to an examining trial].

*** Check while reading . [Rights (1) throug h (5) are checked off; but right (6) to an exami ning trial was not checked]. Place of Warning: Refugio Co. Jail
The petitioner argues that two inferences may be drawn from this document. First, the magistrate could not have made a probable cause determination at the time the document was comp leted because an affidavit charging the offense had not ye t been filed. Second, because he w as not advised of his right to an examini ng trial, he never r eceived one. The petitioner d id not offer testimony on this issue a t the evidentiary hear

ing.
At the conclusion of the hearing , the trial court made the foll owing findings of fact:

[T]he petitioner claims that he was not properly tak en before a magistrate for a probable cause hearing and remained in custody illegally for twenty-one days before confessing to the murder of Rodney Compton. At the post conviction evi dentiary hearing, pr oof was presented showing that the petiti oner was taken before a magis trate within twenty-

four hours of his arrest in Tex as on other48 charges. A one thousand doll ar bond was granted, which the petitioner co uld not make, and the petitioner confes sed to th e Tenne ssee off enses twen ty-one da ys later while in custody for the Texas offenses. This Court concludes that the petitioner has failed to carry his burden of proof with respect to this issue. There has been insufficient proof presented that the confessions were taken in viol ation of the petitioner's Four th Amendment rights.
The response of the state completely fails to address the legal issue. It insists that the issue is moot because the petitioner fai led to prove this allegation. The state argues the petitioner should have presented more pr oof that he did not receive a p robable cause de termina tion. It in sists tha t the pet itioner s hould ha ve offered the testimony of the Texas magi strate regarding the admonition of his rights and should hav

e presented t

estimony ab

out the standa rd procedur es and forms employed in Refugio County or the nature of an examining trial in Texas.

In his reply brief, the pe titioner submits that Texas law clarifies the state's concerns. Relevant sections of the Texas Code of Criminal Proced ure were attached to the reply bri ef as an addendum.

Our rules of evidence provide for mandatory judicial notice of statutory law in Texas: Rule 202. Judicial notic e of law.--Mandatory

Judicial Notice of Law.--The court shall take judicial noti ce of (1) the common law, (2) the cons titutions and statutes of the United States and of every state, territory, an d other jurisdiction of the United States, (3) all rules adopted by the United States Supreme Court or by the Tennessee Supreme Court, and (4) any rule or regulation of w

hich a statute of the United States or Tenness ee mandates judicial notice. Tenn. R. Evid. 202(a).49 In Texas, the statutory l aw provides for at lea st two types of pre-tr

ial hearings: (1) an initial appearance before a magistr ate where one is advi sed of certain rights, and (

2) an examining tria l. See Tex. Code Crim. P. Ann. ar t. 15.17, 16.01. Article 15.17(a) governs the initial appear ance and provides in part: (a) In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county w here the accused was arrested or, if necessary to provide more expeditiously to the person arrested the warnings described by this article, before a magistra te in a county bordering the county in which the ar

rest was made. The arreste d person may be taken before the magi strate in person or the image of the arrested person may be broadcast by closed circuit telev

ision to the magistrate. The magistrate shall inform in clear language the pers on arrested, either in pers on or by closed circ

uit television, of the accusation against him and of any affidavit filed therewith, of his rig ht to retain counsel, of his r ight to remain silent, of his rig ht to have an attorney pr esent during an y interview wit h peace o fficers or attorn eys representing the state, of his right to terminate the interview at any

time, of his right to req uest the appointment of counsel if he is indig ent and cannot afford counsel, and of his right to have an examining tri al. He shall also inform the pers on arrested that he is not required to make a statement and that any statement made by him may be used agai nst him. The magistrate shall allow the perso n arrested reasonable time and opportunity to consult co unsel and shall admit the pers on arrested to bail if allowed by la w.
Under Texas law, an "examining trial" in felony cases is described in part as follows:

Article 16.01. Examinin g trial When the accused has been brought before a magistrate for an examining trial that officer shall proceed to examine into the tr uth of the accusation made, allowing the accus ed, however, sufficient ti me to procure counsel. In a proper case, the magistrate may appoint counsel to represent an accused in such examining trial only, to be compensated as otherwise provided in this Code. The accused in any felony case shall have the right to an examining trial before indictment in the county hav ing jurisdiction of the o

ffense, whether he be in custody or on bail, at which time the50 magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailabl e case. (Emphasis added). Other sections provide guidance on how the examining trial is conducted and prescribe the cal ling and cross-exa mining of witnesses. Id. , art. 16.06, .07. "The same rules of eviden ce shall apply to and g overn a trial before an examining court that appl y to and govern a final

trial." Id. , art. 16. 07. In ou r view, the examining trial i n Texas is similar to a preliminary hearing

in this state. See Tenn. R. Crim. P. 5(a).

The record suggests that the petitioner did have an initial appearance as required under Article 15.17. Because the Texas document indica tes an affidavit charging an offense had not been filed with the court, it is not likely that a judi cial determination of probable cause w as made at that time.
We also agree it is likely that the petitioner did not hav e an examining trial. The offenses with w hich the petitioner was

charged, evading ar

rest, driving without a license, and dr iving without i nsurance, were all mis demeanors. See Tex. Penal Code Ann., art. 521.025 (pr oviding that a vio lation of the law requi ring that a license be carried is a misdemeanor); art. 601.191 (pr oviding that a vio lation of the motor vehicle liabil ity insurance requi rement is a misdemeanor); and ar t. 38.04 (providing that ev

ading arrest is a Cl ass B misdemeanor, unless a peace officer suffer s serious bodily inju ry due to th e escape , which is a f elony). Un der Texas law, the petitioner would not be entitled to an examining trial for the misdemeanor offenses. Tex. Code Crim. P. Ann., art. 16.01.

The reco rd leaves o pen the p ossibilit y that the petition er may not have received a prompt judicial determination of probable cause . It does not, however, establish by a preponderanc e of the evidence that he did not. In Gerstein , the51 United States Supreme Court provided guidance on what type of procedure would satisfy the requirement o f a prompt judicial determinati on of probable cause. The Court observed th e safeguards b uilt into a prelim inary hearing, such as the calling and cross-examination of w itnesses and the appointment of counsel , are not constitutionally req uired for a probable cause deter mination. 420 U.S. at 119-20. The hearing does not have to be adversarial. Id. at 120. The Court ruled that hearsay and written testimony may be adequate for the judicial determination of whether there is probabl e cause. Id. The Court explained that the use of an "informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination its elf." Id. at 122.

That there was not an examini ng trial in Texas and that the magistrate did not determine probable cause at the initial appea rance does not make it more likely than not that an informal procedure was not used at another con stitutionally permissible time. The record does not include papers filed in court in Refugio County. The proof in the recor d is inadequate for any deter mination that a constitutional violati on occurred.

In Green v. State , 872 S.W.2d 717, 718 (Tex. Crim. App. 1994), the court observed that the pr obable cause determination w as noted on the "docket sheet."The cour

t presum ed this probabl e cause d etermin ation w as made t

o satis fy the rule in Gerstein

. Id. at 721. Su ch an inf ormal pro cedure in this case would have satisfied constitutional g uidelines. The burden in a post- conviction case is on the petitioner to demonstrate his claim by a preponderance of the e vidence. He has not done so on this issue.52 III The petitioner complains that pr osecutorial misconduct occurring during the course of the tri al requires rever sal. Specifically, he complains that the prosecutor's arguments r epeating and emphasizing Sheriff Hodges' testimony th at the petitioner had "killed before" were highly prejudicial and improper.

Initially, we note

this claim has been wai ved. The post-convicti on statute in effect when the petition was filed def ines waiver:

(b)(1) A ground for rel ief is waived if the peti tioner knowingly and under

standingly failed to pr

esent it for determination in any procee ding before a court of compete nt jurisd iction in which the gr ound cou ld have been presented. (2) There is a rebuttable pr esumption that a ground for relief not raised in any such proceeding which was held was waived. Tenn. Code Ann. § 40-30-112(b) (r epealed 1995). Our supreme cour t has held that "the rebuttable presumption of wai ver is not overcome b

y an allegation that the petitioner did not personall y, knowingly , and understandingly fail to raise a ground for relief." House v. State , 911 S.W.2d 705, 71 4 (Tenn. 1996). The court continued, "[w]aiver in the post-conviction context is to be determined by an objective standard under which a petitioner is bound by the action or inaction of his attorney." Id. Clearly, this claim of prosecutorial misconduct was available on direct appeal. We will nonetheless briefly address the merits.

As stated previously , Sheriff Hodges testified that the petitioner acknowledged to him that he had "killed before." The last stat ements made during closing argument by the state were as follows: "Recall what the Sheriff said to him when he was alone with him. He said, 'Son, y ou've killed before.' [A] nd that's true, members of the jury, not specul ation."53 Our supreme court recently reaffirmed several well -established guidelines which c

ontrol closing arg ument: We have recognized that closing argument is a valuable privilege for both the State and the defense and have allowed wide latitude to counsel in arguing their cases to the jury. Nonetheless, closing argument is subject to the discretion o f the trial judge, and must be temperate, predicated on evid ence introduced during the trial, and relevant to the issues being tried. State v. Ronnie Michael Cauthern , ____ S.W.2d ____, No. 02C01-9612-CC-00108, slip op. at 18 (Tenn., at Jackson, Mar. 23, 1998) (citations omitted ).

In our assessment, however, any misconduct on the state's part did not affect the jury's verdict in this case. The test to be applied in reviewing a claim of prosecutorial misconduct i s "whether the improper c onduct could have affected the verdict to the preju dice of the defendant." Harrington v. State , 385 S.W.2d 758, 759 (Tenn. 1965). The factors, set out i n Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), and adopted by the Tennessee Supreme Court i n State v. Buck , 670 S.W.2d 600, 609 (Tenn. 1984), are as follows:

(1) the conduct complained of, view ed in light of the facts and circumstances of the cas e; (2) the curative measures under taken by the court and the prosecution; (3) the intent of the prosecutor in mak ing the improper statement; (4) the cumulative effect of the improper conduct and any other error s in the record; and (5) the relative strength or weakness of the case. The first factor, the conduct complai ned of, weighs for the petiti oner. The argument was patently improper

. See Tenn. R. Evid. 404( b). The se cond fa ctor, the curative measures undertaken by the cour t and the prosecution, also w eighs for the6 Thes e issues are listed in an adden dum to the brief. 54 petitioner. Neither the s tate nor the court made any att empt to cure this error. The third factor, the intent of the pros ecutor, also weighs

for the petitioner as there i s no legitimate reason for the conduct. The fourth factor weighs for the state, as there were no other instances of misconduct. The final f actor, which we find controlling, is the strength of the case. Giv en the confession, the strength o f the case was overwhelming. In our view, the imprope r conduct did not contribute to the guilty verdict. Thus, the issu e is without merit.

IV

Counsel for the petitioner has raised a myriad of issues in an attempt to preserve the issues for future litigation. 6 Specifically, he rai ses the following issues: (1) whether the trial cour t erred by limiting

the questioning of prospective jurors about their attitudes about the death penalty ; (2) whether the trial cour t erred by refusing to allow certain juror

s to be challenged for cause and excluding other jurors; (3) whether the trial cour t gave erroneous definitions of "reasonable doubt" during voir dire and in the guilt and penalty phases; (4) whether the trial cour t erred by allowi ng the introduction of irrelev

ant and prejudicial evidence; (5) whether the trial cour t erred by givi ng instructions that reli eved the prosecution of the burden of proving all elements of the offense; (6) whether the trial cour t erred by excludi ng the petitioner's mental health records during the guilt phase; (7) whether the trial cour t erred by refusing to allow the jury to review the petitioner's55 written statement during jury deliberation; (8) whether the prosecutor fail ed to disclose evidence; (9) whether th e prosecuti on failed to pe rform adequate testing or conceal ed test results obtained from the crime scene; (10) whether prosecutorial misconduct requires reversal; (11) whether the district attorney for Anderson County abused his discr etion by seeking the death penalty in this c ase; (12) whether the Tennessee Supreme Court's proportionality review violates due process in that the court has failed to pr omulgate the standards by whic

h it conducts its review; (13) whether the absence of an instr uction allowing the jury to impose a life sentence based on mercy is unconstitutional; (14) whether the mandatory impos ition of the death penalty upon a finding that aggravating ci rcumstances outweigh the mitigating circumstances is unconstitutional; (15) whether Tenn. Code Ann. § [39-13- 204(i)(7)] fails to narr

ow the class of persons e ligible fo r the deat h penalt y; (16) whether the death penalty unlawfully infringes upon the petitioner 's right to life; (17) whether the death penalty is per se cruel and unusual punishment; (18) whether the trial court's exclusion of Dr. Engum's testimony during the guilt phase violated constitutional

rights; and (19) whether the cumulative effect of all these errors violates peti

tioner's constitutional rights.
We must conclude that none of these issues present a bas is for relief.56 First, all of the issues are waived under Rule 10, Tenn. Ct. Crim. App., which provides that "[i]ssues which are not supported by argument, citation to authorities, or appropriate references to the record will be tr eated as waived in thi s court." Several of the issues have been waived under the post-conviction statute because they were avail able at trial but not pursued at that time. See Tenn. Code Ann. § 40- 35-112(B) (repealed 1995). Others are waived for failure to present any pr oof at the post-conviction hearing to support the claim. Finally, other issues have previously been decided against the petiti oner. We will briefly discuss each issue.
The post-conviction statut e in effect when the petition w as filed defines waiver: (b)(1) A ground for r elief is waived if the petitioner knowingly and under

standingly failed to pr

esent it for determination in any procee ding before a court of compete nt jurisd iction in which the gr ound cou ld have been presented. (2) There is a rebuttable pr esumption that a ground for relief not raised in any such proceeding which was held was wai

ved. Tenn. Code Ann. § 40-30-112(b) (r epealed 1995). Our supreme cour t has held that "the rebuttable presumption of wai ver is not overcome b

y an allegation that the petitioner did not personall y, knowingly , and understandingly fail to raise a ground for relief." House , 911 S.W.2d at 714. The court continued, "[w]aiver in the postconviction context i s to be determined by an objec tive standard under w

hich a petitioner is bound by the action or inaction of his attor ney." Id.
Issues (1) and (2) concer ning the jury selec

tion process have been waived because they were available at t rial and on direct appeal but not pursued. See House 911 S.W.2d at 714; Tenn. Code Ann. § 40-30-112(b) (r epealed 1995).57 The third issue concerns jury instructions on reasonable doubt. This issue is without merit. At the guilt phase, the jury was instructed as follows:

Reasonable doubt is not a mere pos sible doubt because everything relating to human affairs is open to some possible or imaginar y doubt. It is an honest doubt engendered after an investigation of all of the evidence and an inability after such investigation to le

t the mind rest easily as to the moral certainty of guilt. And this certainty is requi red as to every esse ntial element of the crime charged or incl uded in this indictment. A similar instruction was given at the penal ty phase.

Several cases discuss

challenges to this ty

pe of instruction. See State v. Bush , 942 S.W.2d 489, 52 (Tenn.), cert. denied , 118 S. Ct. 376 (1997). These challenges are based on the U nited States Supreme Court case , Victor v. Nebraska , 511 U.S. 1 (1994). In Victor , the United States Supreme Court ruled that a jury might "understand [the instr uction containing the phras e 'moral certainty'] to allow conviction on proof that does n ot meet the beyond a reasonable doubt standard." 511 U.S. at 13. The Court ruled , however, that a reas onable doubt instruction that contained the phrase "moral cer tainty" might nonetheless comport with constituti onal guidelines if used in conj unction with other phras es that lend content to the phrase. Id. at 15.

In State v. Nichols , 877 S.W.2d 722, 734-35 (Tenn. 1994), our supreme court considered a challenge to a jury instruction which included the term "moral certainty" used in conjunction with a char ge that "[r]easonable doubt is that doubt en gendered by an invest igation o f all the proof in the case a nd an ina bility, after such investigati on, to let the mind rest easil y upon the certainty of y our verdict." Id. The court concluded that the instruction properly reflected "th e evidentiary certainty require

d by the 'due process' cl ause of the federal constitution and the 'law of the land' provision in our state constitution." Id. In our view, Nichols controls in58 this instance.

The fourth issue is that the tri al court erred by all owing the introducti on of irrelevant and prejudicial evidence. In our view, this issue is waived because it was available at tr

ial and on direct appeal but not pursued. See House , 911 S.W.2d at 714; Tenn. Code Ann. § 40-30-112(b) (repealed 1995).

The fifth issue is whether the t rial court erred by giving instruc

tions that relieved the prosecution of the burden of proving all elements of the offense. This issue is waived because it was avail able at trial. In Sandstrom v. Montana , 442 U.S. 510 (197 9), the Un ited Sta te Supre me Court r uled tha t jury instr uctions t hat relie ve the prosecution of the burden of proving an essential elem ent of the offense are unconstitutional. At the time of petitioner's trial, the prohibition against burd enshifting jury instr

uctions was well -established; any complai nt based on burdenshifting instructions s hould have been pursued at tri al. See House , 911 S.W.2d at 714; Tenn. Code Ann. § 40-30-112(b) (repealed).

The sixth and seventh iss ues, concerning the admissi on of mental health records at trial and the trial court's re fusal to allow the jury

to review the petitioner's statement durin g deliberation, are w aived for failure to pursue the issues at trial or on appeal. See id.

The eighth and ninth issues, c oncerning possible Brady violations and the state's failure to perform adeq uate testing on crime scene evidence, are waiv ed because of a failure to present proof. Ther e is no evidence at the post -conviction hearing concerning these allegations and we cannot speculate as to the substan ce of the claims. "We [must] decide cases ... on the bas is of the record as presented59 to us for our consideration." Dearborne v. State , 575 S.W.2d 259, 264 (Tenn. 1978). The burden is always upon the appealing party to develop a record which conveys a fair, accur

ate, and complete account of those proceedings which form the basis of the appeal. Id.

The tenth and eleventh issues concerning prosecutorial miscondu ct and abuse of discretion for seeking the death penalty are wa ived for failure to present them on direct appeal. House , 911 S.W.2d at 714.

The twelfth issue concerns a challenge to the way our supreme court conducts proportionality review. See State v. Bland , 958 S.W.2d 651 (Te nn. 1997), cert. denied , 118 S. Ct. 1536 (1998). This issue is waived for failure to cite any authority as well

as failure to provide ev idence. There is no proof in thi s record that the supreme court conducted an inad equate proportionality review in this case.

The thirteenth issue is w hether the denial of a jury i nstruction allowing the jury to consider mer cy is unconstitutional . First, this issue is waived for failure to cite any authority. Tenn. Ct. Crim. App. R. 10(b ). Even if we wer

e to review the merits of the issue, howev er, we would find for the state. The supreme court has consistently held no error occurs when a trial court refuses to give a mercy instruction. See State v. Bigbee , 885 S.W.2d 797, 813-14 (Tenn. 1994); State v. Melson , 638 S.W.2d 342, 366 (Tenn. 1982).

The petitioner next complains that the mandatory impositio n of the death penalty upon a finding that the aggravating circumstances outweig h the mitigating circumst

ances is unconstitutional. This issue is also w aived for failure to cite any authority. Tenn. Ct. Crim. App. R. 10(b). Nevertheless, our supreme court60 has rejected this argument. See State v. Smith , 868 S.W.2d 561, 582 (Tenn. 1994).

The petitioner also contends Tenn. C ode Ann. § 39-13-204(i)(7),the felony murder aggravating circumstance, fails to narrow the class of persons eligible for the death penalty. In State v. Middlebrooks , 840 S.W.2d 317, 34 6 (Tenn. 1992), a majority of our supreme cour t concluded that when a defendant is "convicted of first-degree murder sole ly on the basis of felony mur der, the aggravating circumstance set out in Tenn. C ode Ann. §§ 39-2-203(i)(7) (1982) and 39-13-204(i)(7) (1991), does not narrow the class of death-eligible murderers sufficiently under the Eig hth Amendment to the U. S. Constitut ion, and Article I, § 16 of the Tennessee Constitution because i t duplicates the elements of the offense." Courts have been reluctant to extend the holding in Middlebrooks and continue to uphold the constitutionality of the felony murder aggrav ating circumstance w

hen used in conjunction with the jury's finding of a pr emeditated murder. In Hall , our supreme court emphasized that "[i]mplicit in [the Middlebrooks holding] is the recognition that the circumstance properly may be applied if a defen dant is convicted of premeditated first degree murder." Hall , 958 S.W.2d at 692. This issue is without merit.

The petitioner next complains that the death pen alty unlawfully infringes on his rig ht to life. In State v. Bush , 942 S.W.2d 489, 507 (Tenn.), cert. denied , 118 S. Ct. 376 (1997), the supr eme court affirmed our court's deter mination that the death penalty does not unl awfully infringe upon o ne's right to life. (C ourt of Criminal Appeals' opinio n affirmed and appendixed to the supreme c ourt's opinion). The court qu oted from Gregg v. Georgia , 428 U.S. 153, 183 (1976):

[C]apital punishment is an ex pression of society's mor al outrage at particularl

y offensive conduct. This functi on may be unappealing to many, but it is essential in an ordered society that ask s its citizens to r

ely on legal61 processes rather than self-help to vindicate their wrongs. Bush , 942 SW.2d at 523 (alteration in origin al). This issue is ther efore without merit.
The petitioner also argues the death penalty is per se cruel and unusual punishment. Our supreme c ourt has routinely rej ected the argument that the death penalty in and of itsel f is cruel and unusual punishment. See generally , State v. Dicks , 615 S.W.2d 126 (Tenn. 1981); see also State v. Cauthern , 778 S.W.2d 39, 47 (Tenn. 1989). This complaint is w ithout merit.
The petitioner's next complaint is that the trial court's exclusion of Dr. Engum's testimony during the guilty phase violated his constitutional rights. This issue was previously determined on direct appeal. "A ground for relief is 'previously determined' if a court of competent jurisdiction has ruled on the merits after a full and fir hearing." Tenn. Code Ann. § 40-30-112(a) (repea led 1995). A "full and fair hearing" occurs if the "petitioner is given the opportunity to present pr oof and argument on the petition for post- conviction relief." House , 911 S.W.2d at 714 (footnote omitted).

This exact issue was raised on direct appeal and the supreme court ruled as follows:

It is well within the authority of States to exclude evidence through the appli cation of evidentiary r ules that themselves serve the interest of fairness and reliability-- even if the defendant would prefer to see that evidence admitted. A trial court's decision to admit or exc lude expert testimony cannot be disturbed on appeal unless there is a clear showing that the trial cour t has abused its discretion. We find no such abuse in this ca se. Brimmer , 876 S.W.2d at 79 (citations omitted). Acco rdingly, this is sue is without merit.62 The petitioner's final complaint is that the cumulative effect of all of these errors requires reversal. Because we have found no merit to any of these general challenges, w

e need not address this issue.
The judgment of the trial court de nying post-convi ction relief for the offense of first degree murder is affirmed. A new sentencing heari ng is granted due to the ineffective assistance of c ounsel in that phase of the trial

.

______________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ Paul G. Summe rs, Judge

_____________________________ William M. Barker, Specia l Judge