### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON September 12, 2000,

Session
JACK JAY NORTH, JR. v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Hardin County

No. 7695, C. Creed McGinley, Judge

No. W1999-01301-CCA-R3-PC - Decided October 25, 2000

The appellant, Jack Jay North, Jr., was convicted of first degree murder by a Ha rdin County jury

and

was sentenced to life imprisonment without the possibilit

y of parole . On appeal, he a sserts that the post-convicti

on court erred in finding trial counsel’s performance to be effective during the sentencing phase of trial. Specifically, the appellant contends that trial counsel was ineffective for (1) failing to offer mitigating proof at the sentencing phase; (2) for f ailing to request funds for a mitiga tion specialist; and (3) for not objecting to comments made by the State during cl osin g arg uments of the sentencing phase. After review, we affirm the judgment of the Circuit Cour t o f Hard in C oun ty.
Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is affirme

d.

D AVID G. H AYES , J., delivered the opinion of the cour

t, in which G ARY R. W ADE , P.J. and T HOMAS T. W OODALL , J., joined.
Patrick T. McNally, Nashville, Tennessee, for the appellant, Jack Jay North.

Paul G. Summers, Attorne y General and Re

porter, Michael

Moore, Solicitor Ge

neral, J. Ross Dyer, AssistantAttorney General, G. Robert Radford, D istric t Attorney General, and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The appellant, Jack Jay

North, Jr., was foun

d guilty of f

irst degree murder in the Circ uit Courtof Hardin County. The jury then sentence d the appellant to life without the possibility of parole. This court affirmed theappellant’s sentence and conviction on direct appeal. See Statev. Jack Jay North, Jr. , No. 02C01-9512-CC -00369 (Tenn. Cri

m. App. at Jackson, Dec. 12, 1996). On July 6, 1998, the appellant filed a petition for post-conviction relief. Following a hearing, the postconviction court

entered an order denying the appellant’s petition. I n this appeal of right, the appellant asserts the follow

ing errors: (1) tria

l counsel was ineffective because he failed to argue mitigating proof at

sentencing; (2) trial

counsel was ineffective because he failed to request funds-2-

for a mitigation specialist; and (3) trial counsel was ineffective for not objecting to comments made by the State during closing arguments of the sentencing phase. Following re view, we affi rm the jud gmen t of the Cir cui t Co urt of H ardi n Co unt y.
Background

The appellant and his friend, Galen Rhodes, drove from Corinth, Mississ

ippi, to Savannah, Tennessee, to pay a spe

eding ticket for

a friend. After

they found th

e courthouse

closed, they

began driving around Savannah. At some point, the appellant and Rhodes went to the house of the victim, Ronald “Frog” Phillips . According to the appellant, Rhodes went to the door of the house and fired

a shotgun. The appellant entered the house to find Phillips wounded and crawling across the floor. As Phillips begged for his life, he was fatally shot in the face.

The appellant left the scene in his ve hi cle and Rhodes followed him in the victim’s truck. Later that same night, the appellant was involved in an automobile accident. At the scene, a shotgun and the victim’s radio were found in the appellant’s vehicle. An elec tronic organizer was also found in the appellant’s vehicle, which had “murder” typed in the memory section of the device.

I. Failure to P

resent Mitigati

ng Evidence at Sente

ncing The appellant argues that he was denied effective assistance of counsel when tria l counsel failed to investigate, identify and present mitigating evidence during

the sentencing

phase of trial. In response, the State contends that theappellant did receive eff

ective assistanc

e of counsel bec

ause adequate mitigating evidence was introduced to the jury during the g uilt/innoce nce phase of tria l.

To succeed in a po

st-conviction cla

imof ineffective assistance of counsel, the appellant

must prove, by clear

and convincing evidence, Tenn. Code Ann. § 40-30-210(f)(1997), that the services rendered by trial counsel were deficient and that, but for the deficient performance, the results of the proceeding would

have b een different. Strickland v. Washington , 466 U.S. 668, 687, 10 4 S.Ct. 2052, 2064 (1984). For purposes of deficient performance, the appellant must show that counsel’s representationfell below the ra nge of compete

nce demanded of

attorneys i

n criminal cases,

and that, butfor these errors, the result of the proceeding would have been differe nt. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). When this court undertakes review of

a lower court’s decision on

a petition for post-conviction relief, the lower court’s findings of fact are given the weight of a jury verdict and are conclus

ive upon appeal a

bsent a finding that the evidence preponderates against the judgment. See State v. Davis , 912 S.W.2d 6 89, 6 97 (Tenn. 1995). This court may not reweigh or reevaluate the

evidence or subs

titute its inferenc

es for those draw

n by the post-

conviction court.

In the present case, the

appellant contends that trial counsel was ineffective because he failed to investi gate and utilize mitigatio n evidence ab out the app ellant’s b ackground du ring senten cing. The testimony of three family members at the post-convic tion hearing rev ealed the following information about the appellant’s background: The appellant’s mother abused drugs and alcohol while pre

gnant with

the appellant. When the appellant was three weeks old, the appellant’s mother and father separated.-3-

The appellant’s father divorced the appellant’s mother and was awarded custody

of the appellant. The a

ppellant’s mother

, however, disa

ppeare d with the appellant before the appellant’s f

ather was able to

pick him up. The appella

nt was told that his moth e r’s boyfriend, Mr. Smith, was his father. When the appellant was four y ears old, his mother brought the appellant to his biological father, told him “T

his is your real daddy”, and said, “Here he is. I cannot

take care of him.” The appellant’s mother then left. The appellant’s mother, however, testified that the appellant’s father took the appellant from her at gunpoint. Regardless, the appellant remained with his father until his father died

when he was approximately twelve years old. The appellant was then returned to his mother. After he commenced livi

ng with his mother, he began engaging in juvenile delinqu

ent acts. Durin

g his t eenage years, the appellant developed

alcohol dependency and was place d in a n adolescent program called Turning Point. Turning Point determined that the appellan t ha d numerous psychological

problems and recommended treatment at Parkway Ho sp ital. The appellant obtained this treatment and various other treatment prog

rams between the ages of thirteen and eighteen. The appellant wa s twenty y ears old when the homicide took place.

The appellant also argues that trial counsel had only been practicing for

two years a

t the time of trial and had very little trial experience. Additionally, the appellant c ontends that

trial counsel failed to investigate

his past and failed to interview potential family members and friends for the purpose of gathering mitigation evidence. Moreover, the appellant asserts that trial counsel was deficient for failing to produce any witnesses or testimony on his behalf at the sentencing hearing.

Trial counsel, howeve

r, testifie d that he investigated the crime scene and spoke with the appellant’s mother o n numerous occasions. Trial counsel also testified that he spent many hours visiti ng with the appellant, explained all aggravating and mitigating factors to the appellant, and informedhim of both the guilt/innocence phase and sentencing phase of trial. Trial counsel further testified that it was his

opinion that adequate proof of the mitigating factors was presented to the jury at the guilt/innoce

nce phase. Spec

ifically, tr

ial counsel te sti fied that the jury was aware of appellant’s intoxication at the time of the incident. Trial counsel also testified that they were aware of his age and that

he was tryin

g to work things o

ut with his ex-wife at that

time. Additionally, trial counsel testified that the jury was aware that R

hodes had been the

“leader” in

the murder and that the appellant was und

er extreme

duress or the substantial dominion of Rhodes when the murder took place. Trial counsel explained that neither the appellant nor his mother informed h im of the facts and circumstances surrounding the appellant’s childhood or any possible impact it might have had

on the appellant. Trial counsel, however, also testified that he never examined any of the appellant’s school records, institutional records, psychiatric records, or a ny of appellant’s records containing allegations of sexual abuse.

At the sentencing hearing, trial counsel offered no proof on the appellant’s behalf, other than the following clo

sing argument:-4-

Ladies and gentlemen, you have found him

guilty of first degree murder. Now, y ou must go back there and

decide the punishment for him. The General just mentioned

a few moments ago

that Mr. Rhodes mad

e the statement he ’d give his life if he could have for Mr. Phillips. Bu t you folks kno

w that it w as Galen R hodes that was in control and snuffed his life out. Galen Rhodes was in control of the situation throughout the entire time.

Our client testified yesterday

in length. He was very emotional about this. He even said in the middle of his testimony that the man did not deserve to die.

Ladies and gentlemen, the punishment should go to the man who is responsible for the actual taking of

Mr. Phillips’ life a

nd that’s Galen Rho

des. To send this man to prison without the possibility of parole would be an injustice.

I want you to believe one thing. The next 12 people tha t sit up here in that case of State of Tennessee versus Galen Rhodes, they will serve justice --

JayNorth was 21 and previously divorced. He had a hard time. He came over here to pay a ticket for

David Houser and that’s what he did. He never made it back to Corinth because o

f Galen Dway

ne Rhodes.

Life imprisonment - I

t isn’t easy t

o send this man to priso n for life without the possibility

of parole for

life. He’d have a har

d, hard row to hoe . I’m not goin g to stand here and say you

should go back there and say he doesn’t deserve to be treated tha t wa y. Yo u ha ve fo und him guil ty.

Take into consideratio

n the guts it took to s

it on this stand and tell wha t happened in front of his family, his friends and his own family . Consider his

emotion - He can’t make that up. And he did say, “That man did not deserve to die.” Thank y ou.
Likewise, the State made a closing argument at sentencing b

ut offered no ad

ditional proof. I

n his brief, the appellant argues application of the well-established law that in capital ca

ses, "[E]vidence about the defendant's background an d character is r

elevant becaus

e of the belief .. . that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and menta l prob lems may be less culpable than d efendants who have no such excuse." California v. Brown , 479 U.S. 538, 544, 107 S.Ct. 837, 841(1987).

At this juncture, however, we note that a sentence of life without the possibility of parole may be distinguished from

a sentence of death and from other felony, non-ca pital cases. A sentence of death is “unique to all other forms of punishment” and involves Eighth Amendment conce rns. State

v. Harris , 989 S.W.2d 307, 316 (T enn. 1999); State v. Butler , 980 S.W.2d 359 (Tenn. 1998). Tho se
sameconcerns,however, do not apply outside the death penalty context. Harris , 989 S.W.2d at 916.-5-

Con seq uen tly, a sentence of life without the possibility of

parole inv olv es i ssu es w hic h are sta tut ory, rather than constitutional, in nature.

With respect t

o a c apital trial, our supreme court has observed that there is no legal requirement and no established practice that the accused must offer evidence at the penalty phase, Statev. Melson , 772 S.W.2d 417, 421 (Tenn. Crim. App.), cert. denied , 493 U.S. 874, 110 S.Ct. 211 (1989). The basic concern of counsel duri n g a capital sentencing is to neutralize the aggravating circumstances advanced by the State and to pre

sent mitigating e

vidence on behal

f of the defenda

nt. Thus, c ouns el has a duty to investigate and prepare for a c apital trial in both the guilt and the sentencing phases, Goad v, State , 938 S.W.2d 363, 369-37 0 (Tenn . 1996). Furthermore, before counsel selects a strategy for sentencing in a c apital case, he or she mus t conduct a reasonable inv estigation into the appellant’s background for mitigation evidence to use at sentencing. See Baxter v. Thomas , 45 F.3d 1501, 1513 (11 th Cir.), reh’g denied
, (1995)( en banc ), cert. denied
, 516 U.S. 946, 116 S.Ct. 385 (1995).

Although the consti

tutional g uarantees aff

orded a sentenc

e of death are d

istinct from a sentence of life without par ole, nonetheless,

the two share, wit

hin the statutory se

ntencing schem

e of this state, common pu

rposes. A principle

purpose is to permit the jury to impose individualized punishmentbased, in part, on the proof introduced at the jury sentencing hearing . Tenn. Code Ann. § 39-13-204. Therefore, with respect to a sentence of life without the possibility of parole, evidence may be presented at s

entencing as to

any matter

the court deems r

elevan t, and may inc

lude, but is notlimited to, the nature a nd circumsta nces of the crime, the defendant’s character, background h ist ory, physical co

ndition, any e

vidence tending

to rebut the agg

ravating circ

umstances enumerate

d by the State, and any evidence tending to establish any mitigating factors. Tenn. Code Ann. § 39-13- 204 (c) (1 997 Re pl.). In this regard, a sentence of life without parole is analogous to a sentence of death. Accordingly, when a defendant is potentially exposed to a sente nce of life without the possibility

of parole, trial counsel must conduct a reasonable investigation of the def end ant’s background

for purposes of d

iscovering mitig

ating evidence . Anything l ess than a reason

able investigation is d

eficient.

In the present case, trial counsel’s failure to investigate was deficient. At minimum, tri a l counsel could have reviewed the appellant’s school or institutional records. The appellant’s mother testified she made trial counsel aware of the appellant’s alcohol depende

ncy and re

lated problems. It is not sufficient for trial counsel to claim that the appellant never told him of his chi ldho od problems. If reasonable inv esti gation would have led trial counsel to the discovery of any information which could have b een us ed as mitigation evidence, his failure to conduct such an investigation is b

elow the standar

d expected of attor

neys in crim

inal cases.

We must then determine whether trial counsel’s defi c ient performance prejudiced the appellant. Strickland , 466 U.S. at 687, 104 S.Ct. at 2064. In the present case, the jury found th e following three

aggravating

circumstances. (5) The murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse bey ond that necessary to produce death;-6-

(6) The murder was committed for the purpose of

avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant, or another; (7) The murder was kno win gly committed, solicited, directed, or aided by the defendant, while the defendant

had a s ubstantial role in committing or attempt

ing to commit, any first degree murder, arson, rape , rob bery, burglary

, theft, kidnaping, aircraft policy, or unlawful throwing, placing, or discharging of a destructive device or bomb.

Tenn. Code Ann. § 39-13-204(i), (5), (6) and (7). A sentence of life

without the possibilit

y of parole shallbe considered a

ppropriate

if the State proved beyond a reasonable doubt at least one statutory aggravating

circumstance contained in § 39-13-204(i), and the sentence was not otherwise imposed arbi tra ril y, so as to co nstitut e a gross abuse of the jury’s discretion. Tenn. Code Ann. § 39-13- 207(g)(1997 Repl.); See also Harris , 989 S.W.2d at 317. In Harris , o ur supreme co urt held that, “when a sentence is based in part upon one or more agg ravating circ

umstances, but at l

east one valid aggravating

circumstance remains, the jury’s reliance upon the invalid agg

ravating circ

umstance is notreversible.” Id. While the ju ry in t he present case did not rely on an invalid aggra vating circumstance in making their de cision, they

did rely on th

ree aggrav

ating factors w

hich are clear

ly supported by t he fac ts and circumstances of this case. As the post-conviction court concluded, “evenif all of the Petitioner’s proffered mitigation evidence had been presented during a sentencing phase it would not have had any effect on the outcome of the trial.” We agree. Nothing contained in the mitigating evidence produced at the post-conviction proceeding is so impacting or rises to such

a level as to convince us that the jury verd ict wou ld have been different had the evidence been presented. Therefore, we find the appellant was not prejudiced by tria l counsel’s deficient performance a

t sentencing. Ac

cordingly , this issue is without m

erit.

Add iti ona lly, the appellant contends that trial counsel was

ineffective fo

r failing to req

uest funds to obtain

a mitigation specialist. Specifically, the appellant contends that tria

l counsel should have made requests “for a mitigation investigator/s pecialist to assist counsel and to present testimony during the sentencing tri al.” To support his position, the appellant cite

s State v. Barnett

, 909 S.W.2d 423, 428 (Tenn. 199 5), which holds tha

t a non-capital,

indigent defen

dant is constitutiona

lly entitled to the assistance of a state-funded psychiatric expert . A s previously stated, we find the appellant was not prej udiced by trial counsel’s f ailure to i ntroduce th e mitigati ng ev idence at sentencing. Sinceno prejudice res ulted to the appell

ant, we find it

unnecessary

to further addre

ss trial counsel’s f

ailure to reques

t funds to obtain a mit

igation special

ist.

II. Failure to Obj ect During Closing A rgument at Sente

ncing The appellant argues that trial counsel was ineffective for failing to object to the following comments made by

the State during c

losing argume

nt of the sentenci

ng phase:

(1) The State refer

red to the appella

nt’s alleged g

ang involvement; (2) The State argued that the appellant should receive life without parol

e because he indicated no re

morse for the dea

th of the victim;-7-

(3) The State referre

d to the appellant’ s co-defendant and stated that the codefendant,

“stands heads and shoulders ab ove [th e appellant]” because the co-defendant indicated remorse; (4) The State interjecte d its personal opini

on during closing

arguments

by using terms such as “I think”; (5) The State argued that the appellant shou

ld receive life w

ithout parole

because it would be a deterrence and serve as crime control; and (6) The Statemade referenc es to parole possibilities by telling the jury to let the “parole board”

worry abou

t the appellant’s r

elease when the

time comes.

In return, the State

primarily asserts that the petitioner was not unduly prejudice d by the prosecuting at torney’s statements during closing argum

ents of the senten

cing phase. Add

itionally, the

State points to trial coun sel’s expl anation at the post-c onviction proceeding f or not obje cting:

It wouldn’t have cha

nged their mind in

my opin ion. Strategica

lly, I thi nk it would have done more harm to

[the appel

lant]. We already had - They ha d already gone out and spe nt m aybe 1 9 to 20 m inu tes fin din g him guil ty, so we knew we had a problem. This jury wasn’ t going to tolerate a whole lot of mess. If I g ot up and started objecting every time - General Radford was bad about say ing “I think” - then

I think it would have done more harm than good.

Af ter reviewing the evidence presented to support the allegation that counsel was inef fective fo r failing to object to the above comments, the post-conviction court found:

While this court in reviewin g the record in

this case, finds th

at certain state

ments

were made in argument

that might be inap

propriate and subject to obje

ction, the same

were not so prejudicial or

inflammatory

as to have effec

ted the outcome of

this trial. Once again th e evidence wa s overwhelm ing.

As we have noted above, ine ffective assistance requires the presence of both the elements of deficient performance and prejudice. Strickland
, 466 U.S. at 693, 104 S.Ct. at 2067. After revie wing the reco rd, we agree with the post-conviction court and find that the appellant was not prejudiced by

trial counsel’s f

ailure to object to

the State’s remar

ks.

We recognize that our scope of review here is limited. Generally, the factual findings of the trial court in post-conv iction proceedin

gs “are concl

usi ve o n appeal unless the evidence preponderates against the judgment.” Coker v. State , 911 S.W.2d 357, 369 (Tenn. C rim. App. 1995); State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). First we m us t decide whether the comments made by the State were, in fact, proper. As to the first three statements listed above, we find none constitute misconduct on the part of the State. Fur thermore, wh ile the prosecutor

must not express personal beliefs or opinions, an a rgument pred icated by the words “I think” or “I submit” i s unlikely to be adjudged a personal opinion. Coker , 911 S.W.2d at 368; United States v. Stulga , 584 F.2d 142 (6 th Cir. 1978). Therefore, the fourth statement listed above-8-

also raises no misconduct. The fi na l two statements, ho wever, do constit

ute inappropriat

e comments. Any references to parole possibilities during arg ument, e v en indirect references, are improper. State v. Nichols , 877 S.W.2d 722, 733 (Tenn. 1994), cert. denied , 513 U.S. 1114 (1995); Smithv. State , 527 S.W.2d 737, 738 (Tenn.1975); Graham v. State , 202 Tenn. 423, 304 S.W.2d 622 (1957). Likewise
, the State’s commen ts on crime contro

l and its deterren

t effect were a

lso improper. See Statev. Smith , 857 S.W.2d 1, 12 (Ten n. 1993); See also State v. Irick , 762 S.W.2d 121, 131 (Tenn.198 8); cert. denied , 489 U.S. 1072, 109 S.Ct. 1357 (1989).

If misconduct is found but no objection was made, t he next layer of review in the post-conviction context is to determine whether the failure to raise or preserve the substantive issue amounts to ineffective a

ssistance of coun

sel. Coker , 911 S.W.2d at 371. After careful review of the record, we conclude that the comments made by the State during c losing arguments had no effect

on the outcome of this case. We do not find the statements made by the Stat e to violate th

e appellant’s constitutional rig hts. As such, these

statements do not c

onstitute reversi

ble error and this issue is without meri

t.

CONCLUSION

This court finds that the appellant was not denied effective assistance of counsel for failing to provide mitigation evidence or for failing to object during the sentencing phase of trial. Therefore, we af fir m th e ju dgme nt o f th e Ci rcui t Co urt of H ardi n Co unt y.

___________________________________ DAVID G. HAYES, JUDGE