# FILED
December 7, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

EDMUND GEORGE ZAGOR SKI, ) FOR PUBLICA TION ) Appellant, ) FILED: December 7, 1998 ) V. ) ROBERTSON CIRCUIT ) STATE OF TENNESSEE, ) HON. JANE W. WHEATCRAF T, ) JUDGE Appellee. ) ) No. 01SO1-9711-CC-00240 ) ) (Post Conviction)

For the Appellant: For the Appellee: Samuel L. Felker & John Knox Walkup Joseph F. Welborn Attorney General and Repor ter Nashville, Tennessee Michael E. Moore Solicitor General Amy L. Tarkington Assistant Attorney Gener al Nashville, Tennessee



### O P I N I O N

AFFIRMED BARKER, J.1 For a m ore com plete recitatio n of the fa cts, see this Cou rt’s opinion in p etitioner’s direc t appeal. Stat e v. Za gorski , 701 S.W .2d 808, 8 10-11 (T enn. 198 5), cert. denied 478 U.S. 1010, 10 6 S.Ct. 3309, 92 L.Ed.2d 722 (1986). 2 OPINION
We granted this post-conviction appeal to d etermine whether there is ineffective assistance of counsel where, at the express

instruction of a competent and fully informed defendant, defense counsel does not investigate or pr

esent mitigating evidence at the sentencing phase of a capital trial. F or the reasons provided h erein, we hold that there is not.

BACKGROUND
The petitioner, Edmund Zagorsk i, was convicted i n 1984 of the first degree premeditated murders of John Dale Dotson and Jimmy Porter. The ev idence at trial was that petitioner lur

ed the two men into a wooded area in Robertson County under the pretense of a drug deal. Once there, petitioner shot bo th men and slit their throats, taking a substanti al sum of money they had broug ht to purchase marijuana. 1
The sentencing phase of the trial was held immediately after the jury returned its guilty ver

dicts. Neither the State no r the defense offered any additional pr oof. The jury sentenced the petiti oner to death based upon two ag gravating circumstances: (1) the murders were committed b y the defendant while he w as engaged in committing robbery of the victims, and (2) the murders wer e especially heinous, at rocious, or cruel in that they involved torture or depravity of mind. Tenn. Code Ann. §39-13-203(i)(7), (5) (1982).2 Mr. W alton is now a Circuit C ourt judg e in the Nin eteenth J udicial Distric t. 3 Following his uns uccessful direct appeal to thi s Court, the petitioner fil ed a post-conviction petition alleging, among other things, that he was denied his constitutional right t

o the effective assistance of counsel at trial. Petitioner c

ontends that his two trial l awyers were i neffective in failing to inv estigate and to present mitigating evidence

during the sentencing po rtion of his trial. We affirm the dismissal of his post-conviction pet ition.
The evidence introduced at the p ost-conviction heari ng was undisputed. Although the petitioner hims elf did not testify, he introdu ced the testimony of Jeffrey Blum, a program specialist with the Davidson County Public Defender’s Office, and his two former lawyer

s, Larry Wilks and James Walton. 2 Sheriff Ted Eme ry and Dete ctive Ronnie Perry from the Rober tson County Sheriff’s Department testified for the State.
Before trial, petitioner made i t clear to his counsel that he wanted to focus exclusively on

avoiding a first deg ree murder conviction. He unequivocally informed counsel that if convicted, he preferred death instea d of a possible sentence of life in prison. Counsel advis

ed the petitioner about the import ance of and the need to investigate and use infor mation about his family backg round; however, petiti oner prohibited his attorneys from having any contact with his family or delving into his pas t. He further instructed counsel that no mitigating ev

idence was to be presented at the sentencing phase of trial.
Despite petitioner’s ex

plicit instructions, counsel took certain steps to investigate his family

background. Counsel ini tially sought funds to tr avel to the petitioner’s home town in Michigan; however, they did not go because of his strict instructions. Mr. Wilks instead contacted the petitioner’s mother by telephone. Mrs.3 The opinion was l ater adopted by the BPR as Formal Ethi cs Opinion 84-F-7 3. 4 Zagorski spoke wi

th a heavy Polish acc

ent and was immature and ver y childlike, apparently the result of a c hildhood head injury. While she referr ed to the petitioner as “my boy” and was obviously concerned about his fate, she was of little assistance and provided no information that could be pursued for mitigati on.

Counsel also obtained the ser vices of an independent psyc hiatrist, Dr. Ben Bursten, who examined the petitioner and confirmed that he w as both competent and ineligible for an insanity defense. Dr. Bursten’s findings and proposed te stimony were not helpful to the defense and cou nsel chose not to call him to testify at trial.

On several occasions du ring the trial court proceedings, counsel adv ised petitioner of his rights

and the potential consequences of his decision to forego any investigation or us

e of his family background and other mitigating ev idence. The petitioner was adamant in his chosen course of action and he expressed full awareness of the ramifications of the death penalty.
Counsel testified that the petitioner’s instructions fo rced them to choose between honoring his w ishes and following thei r own professional judg ment. For guidance under those circumstances, counsel contacted the B oard of Professional Responsibility (BPR

). The BPR issued an informal opi nion 3 advising counsel to fully inform petitioner that he had a right to pursue a defe nse of his choice, but that his chosen defense strategy confli cted with counsel’s et hical responsibiliti es. If petitioner persisted, then counsel w ere advised that they s hould tell him that they w ould file a motion to withdraw from their representation and ins ure that he was competent to represent himself at all stag es of the trial where the c onflict was imminent.4 Evidence of pet iti oner’s background was pr ovided by

Jeffrey Bl um. He contacted several mem bers of th e petitioner’s family bef ore the e videntiary hea ring. 5 Counsel, however, never considered withdrawing from petitioner’s case because of their professional obli gation to him. They repre sented him during the entire trial and follow

ed his chosen defense strategy of preventing a first deg ree murder conviction and foreg oing mitigating ev idence.
After the guilty ver

dicts of first degree murder, counsel again conferred w ith petitioner about the need to pursu e mitigating evidenc e. He directed counsel to do nothing and say nothing at the sentencing hearing because he wanted the death penalty. Once again, counsel explained to petitioner the possible consequence s of his decision. Although initially resistant, the petitioner finally allowed his lawyers to make a closing argument on hi s behalf at the sentencing heari ng. However, cou nsel did not argue any mitigating

factors in their closing

because they believed t he trial court had limited their argument i n that regard.

Mr. Wilks testified that he intende d to argue that the victims were drug dealers who were armed, intoxicated, and dangerous. However, he believed the only available arguments for t he defense were those supported by the evidence, leaving them with little recou rse since they did not pr esent any proof at the sentencing phase. The trial court refused to ins truct the jury on three

requested mitigating

factors: the victims’ participation in criminal activity, petitioner’s lack of prior violent convictions, and petitioner’s youth. Essentially, counsels’ argument during the sentencing phase was a plea f or mercy.
Testimony at the evidentiar y hearing reveal ed potential mitigating evidence with respect to the petitioner’s family background that had been available at the time of trial. 4 The petitioner grew u p impoverished in Tecumseh, M ichigan where he li ved in a6

tenement apartment and then later in a small house. His mother w as always criti cal of him because she wanted a daughter. An aunt helped care f or the petitioner during his childhood because his mother w as impaired by a brain i njury. Between the ag es of eight and ten, the petitioner could not read or wri

te and he developed a stutter. Although he suffered from poor vision, he went without eye glasses for over a year.

Petitioner’s father had litt le or no involvement i n his life. When petitioner was about fourteen years old, a man i n his neighborhood took him unde r his wing and involved him in the Boy Scouts. Nevertheless , the petitioner began to use drugs and alcohol at an early ag e. His grades in sch ool were below av erage and he likely di d not finish high school. He had minor skirmishes wi th the law as a juveni le and federal drug convictions as

an adult; however, he ha d no convictions of viol ent crimes prior to the commission of the murders.
Following the ev

identiary hearing, the trial court held that the petitioner failed to prove that his trial lawyers were ineffective. The trial cour t found that counsel conducted the defense at the sentencing hearing based upon instruc tions from the petitioner, who was

competent to aid in his ow n defense and to have input in the tr ial decisions.

The trial court’s decisi on was affirmed by the Court of Criminal Appeals. The intermediate court determined that counsel were not inef fective for the alleged failure to investigate mitig ating evidence because pet itioner had not shown any resulting prejudice. As to the failure to introduce mitigating evidence, the intermedia te court concluded that counsel performed effectiv ely in carrying

out petitioner’s demands after informing petitioner of the cir cumstances and the consequences o f his decision.5 The p etition was f iled in 1989 and is go verned by the pre-1 995 Po st-Con viction Pro cedure Act. See Tenn. Code Ann. §§40-30- 101 - 124 (repeal ed 1995). There i s no explanati on in the r ecord for th e lengthy delay bet

ween the fil ing of th e petit ion and the ev identi ary heari ng held in late 1995. 6 Lawyers repr

esenting capital defend ants have a dut y to prepa re for both the guilt phase and senten cing pha se of a trial. Goad , 938 S.W .2d at 370 -71; State v. Melson , 772 S.W.2d 417, 421 (Tenn. 1989)
7 State v. Melson , 772 S.W .2d 417, 421 (Tenn. 1989 ). 7 We affirm the judgments of the courts below and hold that when a competent and fully informed defendant instruct s counsel not to investi gate or present mitigat ing evidence at trial, counsel will not later be adjudged ineffective for following those instructions.

EFFECTIVE ASSIS TANCE OF CO UNSEL
To prevail on a claim of ineffective counsel in this proceeding, petitio ner must prove by a preponderance of the evidence 5 that the advice giv en or services render

ed by his counsel fell below the range of competence demanded of attorney s in criminal
cases. Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975). He must also demonstrate prejudice by showing a reasonable probability that but for counsels’ error, the result of the proceeding w ould have been different. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 8 0 L.Ed.2d 674 (1984); Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996).
The petitioner contends that his trial attorneys w ere ineffective in failing to investigate and present mitigating evidenc

e despite his instruction s to the contrary. Generally, a defense attorney ’s failure to investigate and prepare for a possible capital sentencing hearing is

below the range of competence d emanded of criminal attorneys. See Californ ia v. Brown , 479 U.S. 538, 107 S.Ct. 837, 93 L. Ed.2d 934 (1987); Goad , 938 S.W.2d at 369. 6 Although there is no req uirement that counsel present mitigating evidence during the sentencing phase of trial, 7 this Court has emphasiz ed the8

importance of mitigating ev idence in capital cases “because of the belief ... that defendants who commit criminal acts that are attributable t o a disadvantaged background, or to emotional a nd mental problems may be less culpable than defendants who have no such excuse.” Goad , 938 S.W .2d at 369 (quot ing California v. Brown , 479 U.S. 538, 544, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987)).
In this case, petitioner’ s counsel recognized the importance of exploring and presenting mitigating

evidence. They yiel ded, however, to the petitioner’s demands that no evidence be offered in mitigation upon his convictio n of first degree murder. The petitioner understood that he face d the death penalty, but he nevertheless instructed his attorney

s to refrain from any inve stigation into his family background and to essentially forego any defense at the sentencing p hase.
We distinguish petitioner’s case from t hose in which counsel has been adjudged ineffective for making the decision not to inves tigate or present mitig ating evidence. See e.g. Austin v. Bell , 126 F.3d 843, 849 (6th Cir. 1997), cert. denied

___ U.S. ___, 118 S.Ct. 1526, 140 L.Ed.2d 677 (1998); Goad , 938 S.W.2d at 370. It is undisputed that counsels’ inac tion in this case was solely and alone the resul t of petitioner’s instructi on not to pursue any mitig ation evidence.
Under these exceptional circumstances, the critical issue is whether a lawyer should follow the lawful demands of his client when those dema nds may cause detriment to the client’s c ase. This Court has adopted the C ode of Professional Responsibility to as

sist and guide lawy

ers in their relations hips with clients and others. See Tenn. Sup. Ct. R. 8. Generally, the client has exclusive authority to make decisions about his or her case, which are bindi ng upon the lawyer i f made within the framework of the law. Tenn. Sup. Ct. R. 8, EC 7-7. For example, in criminal cases, it8 See also Tenn. Sup. Ct. R. 8, DR 7-101(A)(3) , which states that “[a] l awyer shal l explai n a matter to th e extent reason ably necessar y to permit

the cli ent to make informed deci sions regardi ng the representation.” 9 is the client who deci des what plea to enter and w hether an appeal should be taken once he or she has been fully adv ised by counsel. Id.
Counsel’s role in a criminal case is to assist the defendant in making a def ense and to represent the defendant before the cour t. State v. Franklin , 714 S.W.2d 252, 262 (Tenn. 1986). The assistance of couns el insures, among other thi ngs, that the defendant is fully advised of hi s or her rights, the av ailable defense strategies, and the consequences of pursuing one s trategy over another. According to the Code of Professional Responsibility, “a lawyer should exert the lawyer’s best efforts to insure that decisions of the client ar e made only after the client has been informed of relevant considerations.” Tenn. Sup. C t. R. 8, EC 7-8. 8 Counsel may even w arn the client about harsh consequences that might result from pursuing an ill-advised, but legally permissible strategy

. Id.
Ultimately, howev

er, the right to a defense belon gs to the defendant. Franklin , 714 S.W.2d at 262. Counsel must remember that decisi ons, including whether to forego a legally av

ailable objective becaus e of non-legal factors, are for the client and not the lawyer. Tenn. Sup.Ct. R. 8, EC 7-8. As J ustice William Brennan of the United States Supreme Court has stated: [t]he defendant, and not his lawy er or the State, will

bear the personal consequences of a conviction. It is the defendant, the refore, who must be free personally to decide whether in his parti cular case counsel is to his advantage. And although he may conduct his own defense ultimately to his ow

n detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.” Illinois v. Allen , 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (Brennan, J., concurring). Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (footnote omitted).10 When a competent defendant knowingly and vol untarily chooses a law ful course of action or defense strateg y, counsel is essentia lly bound by that deci sion. If the defendant is prejudiced in some respect by his own decision, he should not later be heard to complain about those consequences by challenging the con duct of his counsel. See State v. Dunn , 453 S.W.2d 777, 779 (Tenn. 1970); Dukes v. State , 578 S.W.2d 659, 665 (Tenn. Crim. App. 1978).

Counsel, in this case, r easonably represented the peti tioner despite his chosen defense strategy. First, counsel vigorously defended the petitioner during the guilt phase of the trial. Moreov er, counsel spoke to petiti oner’s mother and obtained the services of Dr. Bursten, a forensic psychiatrist. Mr. Wilks testified tha t petitioner’s mother provided little information which could be pur sued further. Dr. Bursten examined the petitioner and concluded that he was menta lly competent and ineligible for any form of insanity defense. Dr. Bursten told counse l that if he testified, he would explain that the petitioner could be a “mean person.” Counsel mad e a strategic decision not to present Dr . Bursten’s testimony at trial.
Furthermore, counsel proper ly advised the petiti oner of the need for mitigating evidence and the potentially devastating consequences of his decision to f orego such evidence. Counsel testified that they had no difficulty communicating with the petitioner and they consulted him at every cri tical stage of the proceedings. Petitioner was adamant and did not waiver in his decision after counsel fully advised him of his rights and the risks involved.

Counsel had no reservati ons about petitioner’s competenc y to make decisions and to understand the consequences of his chose n defense strategy. Before trial, petitioner’s competency to stand trial and the feasibility of an insan ity defense were evaluated at Middle Tennessee Mental Health Institute (MTMHI). The evaluators11

found the petitioner competent to assi st in his own defense and inel igible for an insanity defense. As stated, Dr. Bursten’s separate ev aluation also affirmed the petitioner’s competency.
The record before us clearly shows that the petitioner made an intelligent and voluntary decision not to investigate or present mitigating ev idence, and that he was competent to make that decision. C ounsel fulfilled their role as advocates for the petitioner and were not i neffective in abiding by his informed decision to forego the use of mitigating evidence. Because we hold that counsels’ performance did not fall below an objective s

tandard of competence, it is unnecess ary for us to address the issue of prejudice. Strickland , 466 U.S. at 697, 104 S.Ct. At 2069; Goad , 938 S.W.2d at 370.

THE ETHICS OPINION
Finally, it is appr

opriate to address the ethical considerations raised i n Formal Ethics Opinion 84-F-73 of the Board of Professio nal Responsibility. As previously mentioned, petitioner’s counsel sought advice from the BPR on how to represent the petitioner given the un ique circumstances in this case. The BPR recogni zed that petitioner’s defense strateg y was both moral and l egal, but opined that it w as nevertheless in conflict with counsels’ duties

as defense lawyers. The B PR recommended to counsel the following steps to address the conflict with the petitioner:

Counsel should fully inform the accused of his legal ri ght to conduct a defense of his choice as g uaranteed by the Constituti on. The accused should be fully adv ised by counsel that his rights and interests are in conflict with c

ounsel’s moral beliefs and ethi cal responsibilities.In [sic] event the accused mai ntains his insistence on no actions or arguments on his behalf agains t the death penalty being i mposed then counsel should advise the accused that a motion to withdraw from those portions of the trial wi ll be filed with the cour t. The consequences of this action should be fully ex plained to the accused. The court should be fully informed of the conflicts betw een counsel and the accused.12 Counsel should seek adjudica tion that the accused is competent to represent himself during ... any ... portion of the trial where the conflict is imminent. Counsel should mov e the court to withdraw from representation during the portion of the trial where the conflict is manifested. In the event the court fails to grant such motions, the attorney should seek an immedi ate review by the appellate court. See Board of Professional Responsibility, Formal Op. 84-F-73 (1984).
Counsel followed the BPR’s opinion in part by informing the petitioner of h is rights and how his c

hosen defense strategy conflic ted with his legal interests. Counsel, however, c

hose to continue their repres entation of the petitioner and nev er informed the trial court of their conflict.

Under the circumstances i n this case, counsel had no obl igation to seek to terminate their representati on of the petitioner. Withdrawal of counsel i s governed by Disciplinary Rul e 2-110 of the Code of Professional Respo nsibility, and in in digent criminal cases, by Tennes see Code Annotated section 40-14- 205. Our review of those provisions rev

eals that no grounds exi sted for mandatory withdr awal. The petitioner never expr

essed a desire to discharg e his appointed counsel and there was no evidence that counsels’ services were meant to cause harm to another person or that the representation woul d result in the violat ion of a Disciplinary Rule. See Tenn. Sup. Ct. R. 8, DR 2-110(B ).
Moreover, even if counsel had sought to withdraw from petitioner’s case, such action would have req uired permission from the tri al court. Tenn. Code Ann. § 40-14- 205 (1984); Tenn. Sup. Ct. R. 8, D R 2-110(A)(1). Tennessee C ode Annotated section 40-14-205 provides that a c ourt-appointed lawyer

may withdraw from r

epresentation only upon the trial court’s finding of good cause. Although the circumstances in th is case may have risen to the level of good cause, w e will not speculate as

to whether the trial court woul d have granted a withdrawal in the middle of thi s capital trial.9 Counsels’ deci sion to re main on petit ioner’ s case was in accordance wi th EC 7-5, whi ch permits counsel t

o continue r

epresentati on “even though t he client has elected t

o pursue a course of conduct contrar

y to t he advice of t he lawyer ,” provi ded the lawy er does not assi st in i llegal conduct or assert a fri

volous le gal posit ion. Tenn. Sup. Ct. R. 8, EC 7- 5.
10 Other juri sdicti ons have adopted si milar procedure s. See Koon v. Dugger , 619 So.2d 246, 250 (Fla . 1993); W allace v. Sta te , 893 P.2d 504, 512 -13 (O kla. Crim . App. 199 5), cert. denied 516 U.S. 888, 116 S.Ct. 232 , 133 L.Ed .2d 160 ( 1995). 13 Counsel determined that the petitioner’s legal interests would be served best if they continued their representation throughout the pena lty phase of the trial. We are persuaded that counsel acted both r easonably and competently i n representing the petitioner instead of seeking to withdraw from his

case. 9 However, we a re concerned that at no time did counsel inform the trial judge on the rec ord about the circumstances or their d ecision to carry out the petitioner’s defense strateg y.
In prospective cases, w hen a defendant, against his counsel ’s advise, refuses to permit the investigation and presentation of mitigating evidence, counse l must inform the trial court of these circumstances on the record, outside the presence of the jury. The trial court must then take the following steps to protect the defen dant’s interests and to preserv e a complete record: 1. Inform the defendant of his right to present mitigating ev idence and make a determination on the recor d whether the defendant understands this right and the import ance of presenting mitigati ng evidence in both the guilt phase and sentencing phase of trial; 2. Inquire of both the def endant a nd couns el whethe r they have discussed the importance of mitigating evidence, the ri sks of foregoing the use of such evidence, and the po ssibility that such evidence could be used to offset aggravating circumstances; and 3. After being assured the defendant u nderstands the importance of mitigation, inqu ire of the def endant whethe r he or she desires to forego the presentation of mitigating evidence. 10
This procedure will insure that the accused has intelligently and voluntarily made a decision to forego mitigating evidence. Trial judges, however, shall not inquire of counsel as to the content of any k nown mitigating ev

idence. To hold otherwise14

would potentially forc

e counsel to act against the client’s wishes and

would risk the disclosure of privil eged or confidential information.

CONCLUSION
We recognize the professional, person al, and moral conflicts that lawyers encounte r when repres enting a defenda nt who c

hooses t o forego the use o

f mitigating evidence . Nevertheless, w e must preserve a competent defendant’ s right to make the ultimate decisions in his or her case once hav ing been fully informed of the rights and the potential c onsequences involved

.
Accordingly, w

hen a defendant instructs counsel not to investigate or pr

esent mitigating evidence, counsel must follow the procedure outlined in this case to insure on the record that the defendant is c ompetent and fully aware of his rights and the possible consequences of that dec ision. Thereafter, counsel w ill not be adjudged ineffective for abiding by the defendant’s lawful decision.
The judgment of the Court of Criminal Appeals is affirmed. Unless s tayed by this Court or other approp riate authority, the sentence of death shall be carried out as provided by law on the 15th day of April, 1999.

___________________________ William M. Barker, Justice
Concur: Anderson, C.J., Drowota, Birch, Holder, JJ.