### IN THE SUPREME COURT OF TENNESS EE AT KNOXVILLE May 2, 2002 Session
HAROLD WAYN E NICHOLS v. STATE OF TENNESSEE Appeal by P

ermis sion from

the Court

of Crimi nal Appeals Criminal Court for Hamilton County Nos. 205863, 213883-213896 D. Kelly Thomas, Jr., Judge, by Designation

No. E1998-00562-SC-R11-PD - Filed October 7, 2002

The petitioner, Harold Wayne Nichols, f

iled po st-convi ction pet

itions see king re lief fro m his conviction for felony mur der, his sentence of death, and his numerous convictions for aggra vated rape, fi rs t d eg re e b ur gl ar y, and larceny upon the b asis of ine

ffectiv e assista

nce of c ounsel, a s well
as other leg al grounds. After conducting seve ral evidentiary

hearings, the trial court denied relief
as to the felony murder

conviction and sentence of death, but granted pa rtial relief by or

dering new sentencing hearing s as to the rema ining co nvictions

. The Court of Criminal Appeals concluded that the trial cou

rt erre d by allowing the petiti oner to a ssert his r ight ag ainst

self-incrimination during the post-con viction pr oceedings, y

et upheld the trial court’s judgmen

t in all othe

r respe cts.
After reviewing the record and a pplicable au t hority, we conclude: (1) that the petitioner was not deniedhis right to the effective assistance of counse l based on the fai lure t o inv estiga te and chall enge his confessions as false; ( 2) that the petitione r was not d

enied hisright to

the effective assistance of counsel based on the failure to challenge the le gality of his a rrest; (3) tha t the petitioner was not deniedhis right to the effective assistance of counse l at the sentencing phase of his capital trial based
on the failu

re to pre sent additional mitig atin g e vidence ; (4) that the petiti oner wa s not denie d his right to the effective assistance of counsel at the se ntencing pha se of his ca pital trial based on the failure to object to misconduct by the prosec ution; (5) that the petitioner was not denied his righ t to the effective assistance of counsel at the sentencing phase of his capital trial based on the fa ilure to request mitigati ng instr

ucti on s; (6) that the petitioner was not denied his right to the effective assistance of counsel at the sentencing pha se of his capital trial based on the failure to raise issues regarding the constitutionality of capital punishment; (7) that the petitioner wa s notdeniedhis right to the effec tive assis tance of counsel a t the sente

ncing phase

of his capital trial based on the failure to ob je ct to th e d is co ve ry o f n ot es pr ep ar ed by a defense psy cholog ist on self

-incrimi nation g

rounds; (8) that the Court of Cri minal Appe als did not err in refusing to remand the

case for additional DNA testi ng; (9) that the Court

of Criminal Appeals erred by addressing the issue of whether the petitioner had a right against self-incrimination in this post-conviction procee ding but the error had no effect
on the outcome; and (10) that the trial court’s findings were not c learly er roneous and cumulative-2-

error did not require the reversal of th e p et it io ne r’ s c on vi ct io ns . A cc or di ng ly, we affirm the Court of Crimina

l Appeals ’ judgme

nt. Tenn. R. App.P. 11 Appe al by Per mission; Judgment

of the Cour

t of Crim inal Appeals Affirmed

E. R IL EY A NDERSON , J., delivered the opinion of the court, in whichF RANK F. D ROWOT A , III, C.J., and J ANICE M. H OLDER , and W IL LI AM M. B ARKER , JJ., joined. A DOLPHO A. B IRCH , J R ., J., filed a concurring and dissenting opinion.
Ardena J. Garth, District Public Defender, and Ma ry Ann Green, Assistant Public Defender, Chattanooga, Tennessee; Donald E. Dawson , Post-C onviction Defender, and Catherine Y. Brockenborough, As sist ant Post-Co nviction D efende r, Nashville, Ten

nessee, for the a

ppellant , Harold Wa

yne Nichols.
Paul G. Summers, Attorney Gene ral and Reporter; Michael E. Moore, Solicitor Gene ral; Gordon W. Smith, Associat

e Solicitor

Genera l; Gill Robert Geldreich, Assistant Attorney General; William H. Cox, II I, Di strict Att

orney Genera l; and C. L

eland Da vis , C. Caldwell H

uckaba y, a nd Glenn R. Pruden, Assistant District Attorneys Gene ral, for the appellee, State of Tennessee

. David M. El dridge and Jeanne L. Wiggins, Knoxville, Tennessee, for Amicus Curiae , The National Association of Crimina

l Defens e La

wy ers and T

he Tenne ssee Asso ciation o f Criminal Defens e Law ye rs.
OPINION
BACKGROUND Procedural History

The petitione

r, Haro ld Way

ne Nicho ls, was c onv icted of felony murder a nd sentenced to death for the 1 988 killing

of 21-y ear-ol d Karen Pulley in Chattanoog a, Tennessee. I n imposing the death penalty, the jury

found that Nichols had several prior convi ctions for violent felonies, including five aggravated ra

pes committed against four different victims. To place the is sues in thispostconviction appeal in the appropriate context, we first summarize the extensive background facts and procedural history

. On September 30, 19 88, the p etitioner, Harold Wayne Nichols, broke into a home in the Brainerd area of Chattanoo ga and

found the

victim, Ka

ren Pulle y, a lone in an

upstairs b edroom. After forcibly remov ing Pu lley’s cl othi ng, Nichols raped her and struck her in the hea d with a board he had foun d in th e home. After the rape, Nichols struck the victim in the head with the board at least four more times as she struggled. Although Pulley was found alive by

one of her room mates, she died the f

ollowing day . The ca

use of de ath was th

e blunt tra

uma to the

victim’s h

ead, whi c h resulted in skull fr

acture s and mass ive brai n injuries

.1 W e will refer to these vic tims by initials o nly.

2 The convictions for the off enses against

P.G. and P.R. were affirmed by the Co urt of C rimina l App eals. State v. Nic hols , No. 03C0 1-9108-CR -00236, 199 5 Tenn. Crim. App . LEXIS 9 98 (Dece mber 19, 199 5).
-3- Several months later, on January 5, 1989, poli ce officers arrested Nichols a fter receiving information that he committe d several rapes in the East Ridge are a near Chattanooga that were unrelated to the Pulley rape

and murder. When questioned by office rs of the East Ridge Police Department

on January 6, 1989, Nichols confe ssed to s everal rapes that occurred in De cember of 1988 and early

January of 19 89. When questioned later by D etective Richard Heck of the Chatt anooga Police Department, Nichols confessed to the rape and murde r of Karen Pulley a

nd gave
a videotaped statement in whichhe discussed the layout of the victim’s home and be droom, his entry point into the home, the facts of the rape and murder, and his disposal of the murde r weapon. Following these confessions, Nichols was first charge d with and co nvicted of numerous offens e s involving

four dif ferent victims: 1 aggravated ra

pe and first degree burglary committed agains tT.R. on December 27, 1988; aggr avated rape and f

irst deg ree bur

glary committed

agains t S.T. on January 3, 1989; two counts of aggravated r ape and first degree

burgla ry committed

agains t P.R. on January 3, 1989; and ag gr av at ed ra pe , f

ir st de gr ee bu rg la ry, and petit larceny against P.G.
on December 20, 1988. Nichols pl ed guilt y to the off enses inv olving T .R. and S.T ., but ele cted to go to jury tria

ls for the offenses involving P.G. and P.R. and was convicted. 2

After these convicti ons, N ichols pled guilty to char ges of felony

murder, aggrava

ted rape, and first degree burglar

y for the off

enses against Karen Pulley . At a sentencing hearing to determine the punishmentfor the felony murder conviction, the prosecution sought the death penalty based upon two agg ravatin g circumstance s: that Nichols had prior convictions for felonies involving violence and that the killing of Pulley had occ urred during the commission of a felony. See Tenn. Code Ann. § 39-13-204(i)(2) and (7). The State introduced Nic hols’ five prior convictions for aggr avated rape agains tT.R., S.T., P.G., and P.R., as well as his videotaped confession to the murder and rape o f Karen Pulley.

In mitigati on, the de

fense introduced evidence of the defendant’ s character and backg round. Reverend Robert Butler testified that he had known Nichols since his childhood and that Nichols had the “best quality” of c

haracter as a child. Winston Gonia, a minister who hadknown Nichols since age ten, also

testifie d th at Nichols was a good person. Similarly , Reverend Charles Hawkins testified that he had visited Nichols at an orphanage on many occasions and that Nichols had bee n a “v ery fine young ma

n.” Reverend Hawkins testified that he could not

associate the crimes with the person he once knew.

A co-employee , Larry

Kilgore, testified that he worked with Nich ols at Godfathe r’s Pizza and considered

Nichols to be a dependable employ ee and a friend. Kilgore testified tha t Nichols had recei ved promotions leading to assistant manager and worke d night shifts and did pap erwork

.-4-

Kilgore was shocked at Nichols’ arrest and said that the person who committed these crimes was not the person that he knew.
The defenda

nt’s wife , Joanne Ni chols, testifie d that she married Nichols in

1986 and that he
was a perfect gentleman who wa s nice, caring, and never mean to he r. The couple lived for a

time withNichols’ father, whom Joanne Nichols described as harsh and unloving. She testified that her husband worked late hours and sometimes did not come home all night. She did not think that Nichols raped and killed the victim because he never show ed any indica tion thathe would

act in that
manner. She admitted that she told an inv estiga

ting off icer tha t Nichols had said

the murder was an accident. Finally , she testified that she did not want her husband to die.
Nichols, age 29 at the time of the sente ncing h earing, testified about his family backg round. When Nicho ls was ten years o f age, hi s mot her di ed of ca ncer an d he was placed in an o rphan age by his father. Nichols did not know why he had been placed in the or phanag e and did not reca

ll any ab use takin g p lace while he was there. When Nichols was about to be a dopted in 1976, he was instead returned to his father with whom he had a difficult rela tionship.
Nichols joined the army and received an honorable discharg e in 1984. He married his wife, Joanne Nichols, in 1986, and he believed they had a good marriage . Nichols testified that he had a prior co nvic tion for assault with intent to commit rape and that he had a daughter throug h a prior relation ship for whom he pai d child support up until the time of his arrest. Nichols said that he enjoyed his job and had r eceived promotions from cook to assistant manager.
Nichols testifie d that whe n he committed actsof vio lence, he had a “strange energ ized feeli ng” that he could not resist or stop. He concede d that he had nev er sought help for or told anyone ab ou t h is cr im in al ac ti vi ty. He did no t know Kare n Pull ey and i nten ded o nly

to bur gla rize her home and not to kill her. He knew Pulley wa s hurt during his attack but hedid nothing to help her; instead, he disposed of the murder weapon and his clothing . Although he was remorseful, he admitted that he would have continued his violent behavior had he not been arr ested.

Dr. Eric Engum, a

clinical psychologist, testified that he met with Nichols five or six times and that Nichols was of “high averag e” intelligence and fairly a

rticulate. He diagnosed

Nichols w ith “intermittent

explosive disorder,” which is marked by an irresistible drive to c ommit a violent, destructive act until the act is committed. Dr. En gum test ified tha t the cond

ition may relate t o organ ic factors or

developmental factors such as a hostile environment, abuse, absence of love, and abandon ment. In Nichols’ case, ther e was the presence of a har sh, hostile father and th e abandonment

of being placed in an orphana ge after his mother’s death. Dr. Eng um testified that Nichols was not a

psy chopath a

nd was not

alway s violent o

r evil; ind eed, ac cording

to Dr. Eng

um, Nichols’ confessions reflected his “good side taking responsibility for w hat [his] bad side did.” Dr. Engum concluded

that Nichols would function well in an institutionalized setting but would repeat the destructive behavior if released.3 The Court concl uded t hat the jury ’s rel ianc e upo n the f elony m urde r circum stance to imp ose the death senten ce for felony murder violated articl e I, § 16 of the Tennessee Constituti on for the reasons expla ined in State v. Midd lebrooks , 840 S.W .2d 3 17 ( Te nn. 19 92) , but that the error was ha rmless beyo nd a r easo nab le dou bt. See Nic hols , 877 S.W .2d a t 739

. -5- The jury imposed a sentenc e of death after finding that the evidence of the two aggravating circumstances outweighed the evidence of mitigating ci rcumstances be yond a rea sonable doubt. The trial court later imposed a 60-year sentence for the ag gravated rape and a 15-year sentence for the first degree burglar

y, to be serv ed consecut ively. This Court affirmed the c onvictions and the sentence of death on direct appeal. State v. N ichols , 877 S.W.2d 722 (Tenn. 1994). 3

Post -Conv icti on Pro ceedin gs
In April of 1 995, Nich ols filed a petition f or post-c onviction

relief s eekin g t o set asid

e his felony murder c onviction

and dea th sentence. I

n Decem ber of 19 96, he fil ed post- convic tion petitions challenging all of the aggravated ra

pe and related convictions in the non-capital cases. The mainallegation underly

ing all of the post-conviction petitions was that the petitione r was de nied his right to the effective assistance of c ounsel under the United States and Tennessee Constitutions.
The trial cou

rt conducted evide

ntiary hearin gs on the post-conviction petitions over the
course of eight day s, considered thousands of pages of records and documentary evidence, and heard testimonyfrom

dozens of witnesses. Nichols introduced extensive evidence in an effort to show that his trial co u nsel wer

e ineff ective in his capita

l and non- capital c ases bec ause the y f ailed to investig ate evidence of his innocence and failed to cha llenge his numerous confessions to all of the offense s. Nichols also introducedthe testimony of numerous witnesses that he contends should have been presented as mitigating evidence in the penalty phase of his ca pital tria l. Althoug

h the State calledNichols to testify in support of his alleg ations, Nichols in voked his c onstitution al righ t again st self-inc riminatio n and ref

used to an swer que stions.
The pe titioner’s trial counsel in all of the cases were Hug h Moore and Rosemary

Brya n. Moore had defended defendants in two capital ca ses before representing Nichols and had published workin a capita

l defens e manual . Bry an had wo rked on o ne prior

capital c ase, had

atte nde d
numerousseminarsin crimina l defens e, and ha

d a prac tice con sisting o f 40 to 70 percent criminal
cases. Moore and Bry an presented time records indicating that they worked ove

r 1,300 out-of-court hours and 259 in-court hours on the Karen Pulley case, in addi t ion to over 650 out-of-court hours and nea rly 30 in-cou

rt hours o n the othe

r cases
. Following the hearings, the trial court made detailed findings of fact and c onclusions of law and deniedpost-conviction relief by upholding the fe

lony murder conviction, the death sentence, and all of the non-capital convictions. Thetrial court, however, granted pa rtial relief by

ordering new4 The sent ences forthe co nviction s involv ing T .R., S.T ., P.G ., and P .R. or iginally am ounte d to an effecti ve term of 647 years in the Department of Correction. The po st-convict ion court found tha t the se nten cing in t hese case s di d not
com ply with t

he procedures in State v. Pea rson , 858 S. W.2d 879 (Tenn. 1993), and State v . Blo uvett , 904 S. W.2d 111 (Tenn. 1995). T his part of t he post-convicti on ruling was not appealed by the Stat e and therefore is not at issue in this app eal.
-6- sentencing procee dings on the non-c apital co nvictions

. 4 Al t hough th e Court of

Criminal A

ppeals concluded

that Nichols should not have been permitted to invoke his right against self-incrimination in these post-conviction proceedings and that a re viewing court is allowed to draw a neg ative inferencefrom such a failure to testify , it nonetheless held that the evidence supported all of the other determin ations mad

e by the trial court and affirm

ed its judg

ment. We granted this appeal.
STANDARD

OF REVIEW
The Ap ri l 1 99 5 p et it io n c ha ll en gi ng Ni ch ol s’ co nv ic ti on fo r f el on y murder an d death sentence is governed by

the Post-Conviction Procedure Act then in effect, which r equired that allegations be proven by

a preponderance of

evidence. See Tenn. Code Ann. § 40-30-101, et seq
. (1990). The December 1996 petition challenging all of the convi ctions in th

e non-ca pital cas es is governed by t he more r ecent Pos t-Convict

ion Proce dure Ac t, whic h requires that allegations be proven by cle ar and convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997).

A trial court ’s fin dings of fact are conclusive on appeal unless the evidence in the record preponderates against them

. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). When reviewing factual issues, the appell ate cour t will not re -weigh or re- evaluat e the evidence; moreover, factual questions involving the credibility of witnesses or the weight of their testimony are matter s for the trial court to resolve. Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997). When reviewing legal issues, ho wever, or a mixed question of law and fact such as an ineffective a ssistance of counsel claim, the appe

llate court’s review i s de novo withno presumption of correctness. State v. Burns , 6 S.W.3d at 461.
INEFF ECTIVE ASSISTA NCE OF C OUNSEL

To establish ineffective assistance of c ou nsel under the Sixth Amendment to the United States Constitution and article I, § 9 of the Tennessee Cons titution, a petitioner must show that counsel’s performance was deficient and tha t the deficiency

prejudiced the defense. See Strickland
v. Washington , 466 U.S. 668, 6 92, 104 S. Ct. 2052, 2067 , 80 L. Ed.2d 674 ( 1984); Goad v. Sta te , 938 S.W.2d 363, 370 (Tenn. 1996). Because a petitioner must establish both prongs of the test, a failure to prove either deficiency or prejudi ce pr ovides a sufficient basis to deny relief on the ineffective assistance claim. Id.

To prove a d

eficien cy in counsel’s performance, a petitioner must show th at counse

l’s acts
or omissions were so serious that they fe ll below an ob

j ective standard of reasonableness under-7-

prevailing professional norms. Strickland , 466 U.S. at 688, 104 S.Ct. at 2064; Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). As this Court has observed:

[T]he assistance of cou n sel requ ired unde r the Sixth Am

endment i s c ounsel reasonably

likely to render a

nd rendering reason ably effec tiv e assistance. It is a violation of this stan dard for defense counsel t o deprive a criminal defendant of a substant ial de fense by his own ineffe ctivene ss or incompetence.

. . . Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s in terests, undeflected by

conflicting considerations. . . .
Id

. at 934-35 (qu otin g Beasley v. United States , 491 F.2d 687, 696 (6th Cir. 1974) (citations omitted)). In re

viewing counsel’ s conduc t, a

“fair assessment . . . requires that every effort be made t o el iminate the distorting effects of hindsight, to reconstruct the c ircumstances of counsel’s challenged

conduct, and

to evaluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S.Ct. at 2065.

A key aspect of counsel’s performanc e pertin ent t o the alle gationsraised in this case is counsel’s duty to investigate. De fense counsel “must cond uct appr opriate

investig ations, bo th factua l and le ga l,” and “must assert them in a proper and timely manner.” Baxter , 523 S.W.2d at 932, 935. As the United State s Supreme Court has s aid, “co

unsel hasthe duty

to make re asonable investigations or

to make a reasonable decision that makes particular investigations unnecessary .” Strickland , 466 U.S. at 691, 104 S. Ct. at 2052. Although a defendant’s statements or confessions do not elimina

te counse l’s duty to invest i gate, the reasonableness of c ounsel’s actions “may be determinedor substantially influenced by the defendant’s own statements or actions.” Id. at 691, 104 S. Ct. at 2066 . Moreove r, counse l’s c onduct must be “assessed for reasonableness in all the circumst ances, applying a

heavy mea sure of deference to counsel’s judgments.” State v. Burns , 6 S.W.3d at 462.

To establish

that a deficienc y r

esulted in prejudic e, a petitioner “ must show th at there is a reasona ble probability that, but for counsel’s unpr o fessiona l errors, the result of the proceeding would have been different. A rea sonable probabi lity is a probability sufficient to undermine confidence in the outcome.” Strickland , 466 U.S. at 694, 104 S.Ct. at 2068. In short, a petitioner must establish that

the deficiency

of counsel was of such

a degree that it deprived the def endant of
a fair trial and

called into question the reliability of the outcome. State v. Burns , 6 S.W.3d at 463. In cas es involving a guilty plea, a petitioner must establish that but for counsel’s deficiency , h e would have gone to trial instead of entering the plea of

guilty. Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).
ANALYSIS

I. Ineffectiv e Assista

nce of Counsel – F ailure to Inve stigate-8- A. Petitioner’s Allegations
The petitioner argues that he was denied his rig htto the effective assistance of counsel with respect to his felony

murder c apital co nviction a nd with re spect to a

ll of his non- capital c onviction s. His underly

ing arg uments ar e two-fo ld: that histrial cou nsel fail ed to inve stigate

evidence of his innocence and failed t o c hallenge all of his confessions in light of the evidence of his innocence. Nichols also argues that the Court of Crimina

l Appealsapplied an incorrect standard of revie w by requiring him to prov e his act ual innoc ence of

the offe nses. We will review each of his underly ing arguments and analy

ze them in light of trial counsel’s conduct and performance

. 1. Serology Evidence Regarding Karen Pulley and T.R.
The pet it ioner argues t hat hi s coun sel we re ineffecti ve for f aili ng to i nvest igate s erolo gy evidence th at ex cl ud ed hi m a s t he pe rp et ra to r o f t he mu rd er an d a ggr av at ed ra pe of Ka re n P ul le y, notwithstanding his guiltyplea to the offenses. Rely ing upon a report prepared in 1989 by the Tennessee Bureau of I

nvestigation, the petitioner argues that sperma tozoa found in a vaginal swab taken from the victim, which did not contain A, B or H antigens, excluded him as the perpe trator because he is a blo od ty

pe O sec retor who produc es H antig ens in his b odily fluids.
Mike VanSant, a forme

r T.B.I . serolog

ist, te stified at the post-conviction he aring that massive bleeding and blood

transfu sions may

affec t serolog

ical test s on blood samples but noton saliva or vaginal samples. Although VanSant testified that semen from a vaginal swab is distinguishable from blood even when the vaginal swab is bloody , he agreed that the blood flow will have a “cleansing action” over a period of time. He was then a sked:

Q. [B]ut just beca

use ther e’s a lot of blood, that doesn’t hide the fact that ther e’s seme n the re, that whatever antigens y ou would get from the semen?

A: No t n ec es sa ri ly.
There was no fu

rther te stimony

or evide nce foll o wing up o n th is issue; accordingly , given the equivocal nature of the evidence reg a rding whether massive bleeding may have had a cleansing action that affected the discovery of antigens, as well as the lack of expert testimony indicating that the petitioner was excluded as the perpetrator, the Cour t of Criminal Appeals concluded that the evidence was inconclusive.
Si mi la rl y, Nichols claims that serology evidence excluded him from the c lass of po ssible offenders in the ag grava

ted rape of T.R., notwithstan ding hisguilty plea tothe offense. In pa

rticular, he argues that

saliva and vaginal swabs of the victim reveale d the presence of a ty pe B antigen and that he a nd the vic tim were

both ty pe O sec retors w ho secre ted only typ e H antig ens.-9-

VanSant testifie d th a t as a T.B.I. ser ologist in 1989, he tested a saliva sample taken from T.R., which revealed a

B antigen, and a vaginal sample, which revealed B and H antig ens in three of four tests andonly an H antig en in one of the four tests. He indicated that he did not test the saliva sample for semen and that the results were there fore inconclusive. Although VanSant agreed that it was a “d efinite possibility” that the rapist was a ty pe B secretor, he testified that he also found a sample of spermatozoa on the victim’s bedspread that contained only ty pe H antigens. According to Van Sant, the type

H antigen could only

have been produced by

the victim, Nichols or any other type O secretor; moreover, although the typ e B antig en must

have been produced by

someone other than the petitioner, its presencedid not exclude the petitioner or anyone else as the perpetrator of the offense.
VanSant testified that he was unawar e at the time he per

formed h is analy sis that the victim had sexual relations three day s before the offense:

[T]here were seven areas of stain on the be dspread . . . . Had I

known that she had voluntary se

xual intercourse previously I would have tested maybe two or three differen t areas to try to find something different than the H [antigen] because, you know, I can’t say , that could just be hers.
Alth ough VanSant said he would not expect to find antigens in a sample three day s after sexual intercourse, he acknowledged that the releva nt “literature” states tha

t antige ns may be found up to nine days later. A

fter reviewing all of the evidenc e, the Court of Criminal Appeals again determined that the evidence was inconclusive.
2. Murder Weapon The petitioner contends that his counsel were ineffe ctive be cause th

ey failed to investig ate the circumstances concerning the of ficers’ discovery

of the alleged murder weapo n. As s tated above, Nichols’ confess ion to the mu rder and rape of

Karen Pulley

indicate s that he g ave a de tail e d description of the route he used in fleeing the scene and of the area

in which he had disposed of the two-by-four

by throwing it out of his ca r window. A ccording to Detective Heck, the pe titioner accompanied

officers to the scene and a board was found that the petitioner stated “looked like the one he threw out the window of his car.”

At the post-co nvicti on hearing, Steve Miller, an officer with the Chattanooga Police Departm ent, testifie d that he d

id not find a two-by-f

our board in his search of the area whe re it was later found. Susan Saunders Massey, w ho was Karen Pulley ’s roomma te, testif ied she w as taken

to the area by

police a nd saw a t wo-by -four le aning a

gainst a tree. She did not recognize the board but believedthere had been a two-by -four in their home under a washer that was be ing repaired. Fi na ll y, Dr. Neal Haskeall, a forensic entomologist, testified that no blood or fiber evidence was found on the two-by-four

that linked Nichols to the murder of Karen Pul ley. H e also found no evidence of plant material even though the board was alleg edly discarded by the petitioner in September of 1988 and not recovered until January of 1989.-10-

3. Hair Evidence
The petitioner argues that his counsel were inef fective for

failing to investigate hair samples collected from the Karen Pulley

crime scene; in particular, evidence a t the post-conviction hearing indicatedthat two slides cont aining s everal

samples f rom the pu

bic area of

the victim each revealed
one hair that

was inconsistent with Pulley or Nichols. The petitioner argues that the evidence may have established reasonable doubt inasmuch as the evidence also showed that the victim had never had sexual intercourse before the rape.

As the Court o f Criminal Appeals observed, the report prepared by Forensic Science Associates and r el ied up on by Nich ols wa s not dated unti l afte r the p ost-c onvi ction hearin gs concluded; thus, the St

ate had n o opportun

ity to contest the issue and no expert witness testified as to the result. In any

event, the report itself stressed that because “ha irs are ubi quit ous in the environm ent, degrade very

slowly, an d are easily

inadvertently picke d up, transferred, or shed, a loose hair is of relatively

little significance without some inde

pendent k nowledg e that it

is related to the inciden t bein g investigated.” The evidence showed tha t Karen Pulley lived with two other
women from whom hair samples were not evaluated as re ference samples as part of the foren sic evaluation now relied upon by the petitioner.
4. Alibi Defens e
Nichols contendsthat his trial counsel were ineffective for f ailing to investigate evidence of alibi defenses for all of the offenses. During post conviction, Nichols cited evidence that he was at workat the time an offense was committed against T.M. – an off ense not at issue in this post

conviction proceeding – and arg ued that the evidence of an alibi for th is offense should have prompted his trial counsel into investigating defenses for all of the other offenses to which he gave false confess ions. The

record indicate s, howeve

r, that Ni chols confessed and later pled guilty

to the offense agains t T.M., an d was also identifie d by

T.M. as the person who attacked her. Although the petitioner argues this “rock solid” alibi should have prompt ed trial counsel to investigate alibi defenses in the other cases, he did not present any alibi evidence at the post-co nviction hea ring regarding any

of the offenses at issue in this proceeding.
5. Other Evidence and Suspects
The petitioner argues that his counsel were ineffective for failing to investiga te that a pistol recovered from the trunk of his car did not match the description of a “blue stee l revolver” used in the offense

agains tS.T. The record reflects that Nichols confesse d to the offense against S.T. and entere d a guilty

plea; before the

plea wa s entere d, the pro secutor stated tha

t S.T. had i denti fie d Nichols from a photograph and that Nichols had consented to a search of his car that reveale d a .38 revolver belonging to S.T.-11-

According to Dwight Short, a witne ss present ed at the post-conviction hearing by the petitioner, a proper

ty sheet prepared by

police officers indicated that the pistol was an “Auto SST,” which he interpreted to mean a stainless steel automatic. Short also testified, however, that the serial number recorded for the

pistol on the

propert y r eport wa s trace d to a “thr ee inch . 38 Ross revolver with a blue finish.”

In addition, the petitioner argued that his counsel were inef fective for failingto investig ate a suspect named Fred Coats because there was evidence that a police dog tracked a scent from P.R.’s residence following the offense to a car owne d by Coats’ mother and that P.R. had identifie d Coats. The record

reveals, however, that during the a ggravated rape

trial of P.R., the victim testified that she saw a photograph of Coats in which there we re fea tures that resembled the perpetrator. After later seeing Coats in a lineup, however, she told the officers he was not the rapist. She also testified that she identified Nichols as the one who had raped her, and she made an in-c ourt identification of him at trial. The petitioner asserted that the defense failed to pursue ot her possi ble suspectsas well.
6. Ofshe Deposi tion

In addition to

presenting evidence of alleg ed innocence, Nichols presented the deposition of Dr. Richa rd Ofshe , a Ph.D. in

sociology, w

ho teach es, work s, and re search

es in the field of police interrogations and false confessions. Ofshe d iscuss ed “coercive” interrog ation techniques, which
can lea d to fals e confe ssio ns th rough t he mak ing of t hreats or pro mises , and “ persu ading” interrogation

techniques, which can lead to false confessions by convincing an innocent suspect that he or she committed the crimes. Ofshe testified that numerous factors must be reviewed in analyzing the nature of the interrogation and the ver acity of a c onfession: whether a confession has been recorded in its entirety; whether the c onfession contai ns any details un iquely known to the defendant; whether the confession has been tainted or conta minated b y a

n office r telling the suspe ct the fa

cts of the offense; and whether the confe ssion is corroborated by other evidence.
After reviewing Nichols’ conf

essions, O fshe det

ermined that ther e were no indica tions as to how the statements came about or whether they were reliable. I

n Ofshe’s view, trial counsel should have investigated whether officerstold Nichols that he would receive “treatment” in exchang e for his statemen

ts, whe ther officers “rehearsed” Nichols’ statements before recording them, and whether Nichols had requested an attorney . Ofshe testified that therewere no indications in the record that trial counsel h ad invest

igated the circumstance s of the confe ssions, despite the lack of physica l evidence, and that

any attorney

who fails to conduct an investigation cannot competently a

dvise a defenda nt on whet

her to ple ad guilt

y or go to tri al.
Ofshe acknowledged that at the time of the offe nses, co nfessio ns, and c onviction s in this case, his field

of study was in its earliest stag es with regard to resea rch and p ublicatio n. Ofshe

did nottestify reg arding any

of Nichols’ traits or characteristics that may have mad

e him susc eptible to undue pressur

e or risk of givin g a fal se confe ssion unde r the interrog ation techniques he had described. Ofshe admitted that he never met with the petitioner.5 On direct appeal, this Court f ound no proc edural or cons titu tional er ror with respe ct to the p rosec utor’s
exerc ise of d iscretio n in this reg ard. State v . Nich ols , 877 S. W.2d 735-36.
-12- Applying Ofshe’sframew ork, the p etitioner asserts t hat his confessions bore sev eral ind icia of falsi ty a nd unreli ability . For inst ance, he contends that his c onfessio ns to the of fenses a gain s t T.R., S.T., P.G., and P.R. we re coac hed by East Ridg e investig ators who used lea ding que stions to elicit one-word respon ses in a short period of time. He also asserts that the interroga tion was contaminatedby the fact that investigators showed him incident reports of the offenses and pr ompted him with r egard to details. Similarly , the petitioner now argues that his confession to the Pulley
o ffen ses was coached by Detective Richard Heck of the Chattanoog a Police Department and contained details that were inconsistent with the actual facts of the inve stigation.

B. Counsel’s Conduct Hugh Moore, lead

counsel for

Nichols, t

estified that he r eviewe d files and recor

ds, talke d to investigating officers, interviewed witnesses, and visited the crime sce nes. He was a

ware the prosecution’s strategy

was to obtain convictions for the rapes and then to use those convictions in seeking the deat

h penalty for the

murder of Karen Pulley , and he argued at trial and on appeal that the procedure was improper because the rape offenses had occurr ed later in time. 5 When aske d whether he had considered

filing a motion for a speedy trial on the Karen Pulley

charg es, Moore

said he was concerned such a strateg y would reduce

the amount of time in which they had to pr epare for the capital charge.

Moore conceded that theguilty pleas we re entered with respect to the charg es against S.T. and T.R. before the petitioner had received a n independent psychia

t ric examina tion. He stated, however, that there been n o evi dence to support a mental incapacity or insanity defense

when Nichols was examined by

state-e mploy ed menta

l health p rofessio nals follo wing the charg es. Moore conceded that he di d not cros s-examine the victim s in the trials of P.G. and P.R., a nd therefore did not ask them about their identifications of the petitioner or other possible suspects.

Moore was questionedabout the defens e’s con sider ation of vari ous i ssues such a s sero logy
r eports, hair samples, other possible suspects, weapon description, and other matters. He did no t recall exactly why the defe nse had n ot pursue d DNA tes ting, but expresse d conce

rn that a result adverse to Nicholscould have been used against the defense . Althoug

h Moore w as unable

to reca ll
some details r

elating to the inve stigatio n, he rei te rated se veral times that the strategy had been shaped by Nichols’ numerous c onfessions to the charged offenses, including the murder an d rap e of Karen Pulley

. Moore and his co-counsel spent nearly 70 hours meeting with Nichols in prison, du ring which Nichols c onsistentl y c onfirmed

his statem

ents to office

rs. Moore concluded that Nichols had said nothing to indicate the confessions were false or had been coe rced and that investigation of other suspects“did not seem fruitf ul.” When t

hey were un success ful at ha ving Nic hols’ sta tements suppressed, counsel focused upon presenting a mitigating defense to the death penalty, a strat egy-13-

withwhich Nichols was familiar and understood. Moore did not bel ieve that any of the evidence at the post-conviction hearing would have chang ed Nichols’ decisions to plead guilty or the de fe ns e’ s m it ig at io n s tr at eg y. Rosemary

Brya n, co -counse

l, testified that her investigation included numerous convers ations withNichols, r

eviewing the prosecution’s files, int erviewin g police office

rs, and a ttempting to interview the victims of the rapes, who declined to speak with her. Bry an admitted that Nichols pled guilty to two of the rapes, T.R. and S.T., because he wanted to “get th em over with” and b ecause other charges were dismissed

in ret urn. S he adm itte d that altho ugh these guilty plea s were entered prior to Dr. Eng

um’s examin ation of N

ichols, the petitio ner h ad already been examined by Dr. Nickerson, who had found no basis for a competency or insanity issue. Bry

an could not recall why the cases involving P.G. and P.R. went to trial or why the victims were not asked about other possible suspects. She believed that P.R. was not asked about Fred Coats as a possible suspect because the victim ’s direc t testimony fully explained

why she had mi sidentifi ed Coats. Brya n testified that the petitioner had admit

ted the f acts ag ainst him in

“grea t detail” and that he never told her the confessions were fa lse or coerced. She

describ ed Nicho ls’ state

ments to her about the offenses as “very

vivid,” containing facts that only he and the victims would have known. Brya n testified that

the defense investigated many of the issues raised by Nichols in post-conviction, such as the victims’ identifications of the petitioner, the suppression of statements, and possible alibi defense s. With reg ard to pos sible alib i defens es, for e xample, Br

ya n testifie d:
Another thing we were a ware of is that [Nichols ] wa s clocke d in
some of the time s th at s ome of the rapes were supposed to have occurred, but I talke d to [Nichols] about those things. . . .
There was one, and it may have be en [T.M.], where he supposed

ly could not have done it according to his wife. Well, I spent man y , many hours talking to [Nichols and his wife] about this t ime thing and was this really a defense we had and it turned out it wasn’t and again I don’ tremember why . It was either he was clocked in but he had [gone] to deliver a pizza. Brya n testifie d that “there we

re thing s like that

. . . we looked at and

tried to a scerta

in if they would be hel pf ul an d t he y weren’ t . . . .” She concluded that cha

llengin g all of

the conf essions a s false would have been “ludicrous” and would have re quired that the defense “manufacture a defense.”
Alth ough she and Moore

investig ated all

of the offenses, Bry an said that most of their work
was on the death penalty case and that Nichols played a knowing, active role i n form ulati ng t he defense strateg y. B ry an said

that the defense focus became mitigation but that she and Moore very caref ully decided what witnesses to p

resent in the penalty phase . She believed that the petitioner’s family were not as co o perativ e with re gard to testify ing at tr ial as the y a ppeare d to be in po stconviction.-14-

Michael Cohan tes tified tha t he work ed with la wy ers Moor

e and Br ya n as an in v estigator. Cohan, wh o h ad ye ar s of experience in law enforcement befor e becoming a private investigator, recorded 1 63 ho urs loca

ting and interviewing wit

nesses a nd over 5 0 hours dis cussing the defe nse withcounsel. C ohan testifi ed that Nichols told him extensive details about his attack on Karen Pulley that cor roborat ed the fa cts he ha d told inve stigating offic ers, as w ell as a dditional fac ts. Cohan testified that he worked primarily on the Pulley

offense but also worked

on the other cases when re quested t

o do so by

trial cou nsel.
C. Findings and Conclusions
1. Karen Pulley Offenses
After reviewing all of the testimony and evidence from the trial and extensive post-con victio n hearing s, the trial court determined that theineffe ctive as sistance of counse

l claim wit

h respect to the Kare n Pulley offense s was with out merit:
Trial counsel and investigator Cohan testified that any allegation that counsel should have more f ully resear ched the possibility

of a fal se confession was ‘ludicrous.’ The petitioner gave ve ry detailed statemen ts to trial c ounsel se

parate from his statements given to the police. Trial counsel testified that they thoroughly discusse d the options available with the petitioner and th at the petitioner understood that

his confessions would be very damaging evidence

at the guilt phase. They

advised h im that if he enter

ed a gu ilty plea and took responsi bility for his a ctions that the jury

might tak

e this into consideration in the penalty phase de spite t h e obviousl y w eighty aggravating

factors. Under a

ll the cir cumstanc es, the decision to plea
was a strategic decision which will not nowbe questioned using 20- 20 hindsigh

t. It is also noted that counsel’s time records ‘speak for themselve s’ as to the substantial amount of time expended by counsel on this case.

We agree with the Court of Cri minal A ppeals that the evidence in the record does not prepond erate against the trial court’s factual findings. With respect to the murder and rape of Ka ren Pu ll ey, trial counsel testified regarding their investig ation and defense strategy , which they admitted
was influenced by N

ichols’ confessions. The petitioner’s detailed and emotional videotaped confession to the murder and rape, for instance, desc ribed the victim’s house, the petitioner’s point of entry, the lay

out of the bedroom, and the facts of t he rape and murder . The pet itioner a lso consiste ntly admitted h

is guilt regarding the Pulley offense to his counsel, investigator, and mental health expert. As we have

noted, it isentirely

reasona ble for c ounsel’sactions to be influenced by
a defendant’s own statements. See Strickland v. Washington , 466 U.S. at 691, 104 S. Ct. at 2066 (stating that rea sonableness of counsel’s actions “may be determined or substantially influenced by the defendant’s own statements or actions”).-15-

In a ddition, the recor

d revea ls s ubstan tial evidence corroborating the testimony of trial counsel and the defense investigator. At the sentencing phase for the rape and murder, for example, Nichols admitted that he broke into the victim’s home, raped her, and killed her whe n he was trying to leave. The petitioner’s wife also indicated that she had a sked about the Karen Pulley offense and that the petitioner told her that it was an accident. D r . Engum’ s testimony at sente ncing a lso in di ca te d t ha t N ic ho ls ha d c om mi tt ed th e o ff en se s a ga in st Ka re n P ul le y. Nichols continued to admit his guilt even after the sentencing hear ing. Brya n testified, for exampl e, that the petitioner met with Karen Pulley ’s mother after the death sentence ha d been returned and in a brief but emotional meeting, “apologized over and over for what he h ad done to her daughter . . . .” Similarly, the petitioner’s uncle, Claude Nichols, testified during post conviction that he visited his nephew in prison after t he Karen Pul ley

trial and that he a dmitted the

crimes. Las tl y, Dr. David Solovay, a c linical psychologist re lied upon by the petition er in this p ostconviction proceeding, indicated that the petitioner had e xpressed his guilt and remorse. Despite his confe ssions and

statemen ts, the pe titioner’ s main argument

is that his confessions should have been challenged a s false because t hey conta ined inac curaci es and omi ssions and because there was evidenceof his innocence. The argument is immediately undercut, however, by

the fact that the petitioner never refuted his confessions or his own sta

tements to his tria

l counsel and other s. As the Court o f Criminal

Appeals stated, it

is in this co ntext in whic h trial co unsel’s c onduct mus t be viewed:
[W]e will first consider the situation in which trial counsel found

themselves at the time of the petitioner’s trials. The pe titioner had givenmultiple confessions to the offense s with which he was charged

. . . . The pe

titioner’ s stateme

nts to both

trial cou nsel, as w ell as the

ir investigator, were consistent with his confessions to law enforcement offic ers. Trial counsel’s motions to sup press the confess ions w a s unsucce ssful. The petit

ioner ha s not attem

pted to exp lain how, in vi ew of his continuing to assert that the confessions were true, t ria l counsel could have effectively presented a ‘false confess ion’ def

ense
. (emphasis added).
The evidence presented at post-conviction did not alter the fa ct tha t the petitioner

consiste ntly admitted his guilt and never provided a basis for a fa lse confession defense. Nichols never told his counsel, for example, t hat the confession to the Karen Pulley offenses was false or coerc ed. Morever, there was no evidence presented at post-conviction indicating that the petitioner suffered from a mental impa irment, intellec tual def iciency , or other

condition

that ren dered him prone to being led or co nfessing

falsely . Althoug

h Dr. Ofs he discus sed the is sue of fa lse conf essions in gener al, he never met the petitioner and did not address any of the petitioner’s own characteristic s. Indeed, as the intermedia te court noted:6 Th e petitio ner vigo rously a sserts that t he Cour t of Crimi nal Appeals appli ed th e in corre ct s tandard by requiring him to s how “actu al innocense” to establish prejudice. We disagree. The ap pellate court f irst not ed that the evidence prese nted a t the po st-conv iction w as inco nclusive and th erefo re failed to s how t hat couns el’ s re prese ntat ion
was defic ient . The appell ate court then det ermined t

hat any defic iency was not prejudicial by properly f inding that

there
was no reas onable probabil ity of a dif ferent outcome. -16- There was not, and has never been, a showing that the

petitioner was suscepti ble to suggestions and pressure and might have be en led int

o giving false confessions. In f act, had trial counsel tried to present such a claim, they would ha ve been confronted by

proof showing that the pe ti ti on er wa s t we nt y- eight years old a nd married, with three previous felony convictions and time spent i n the Tennessee prison sys tem. Thus, he could not have claimed youth and inexperienc e as reason s for f alsel y confessi ng.
Ac co rd in gl y, when viewed in the appropr iatecontext – that applicable to trial counsel at the time of their representation – we agr ee with the trial court’s conclusion that the evidence presented during the post-co nv iction failed to establish that trial counsel’s performance was de ficient. The evidence showed that counsel and their investigator put thousands of hours into the investigation of the offense s and con sidered numerousissues an d the viab ility of several possible defenses. They had
nu merous meet ings and conversations with the petitioner, who was awar e of and understood the evidence of his guilt andthe strategy used in his defense. While the lens of hindsight indicates that trial counsel c ould have

developed some of t

he issuesmore full

y, s uch as the

se rolog y and the absence of phy sical evidence o n the alle ged mur der wea pon rela ting toKaren Pulley , Nichols s till confessed and the issues were fully litigated by the post-c onviction trial court. In sum, as the trial court found, nothing at post-conviction established that trial counsel’s representation fell below an objective standar

d of rea sonableness eithe r in faili ng to inve sti gate e vid ence of innocenc e or in failing to challenge the con fessions as false when viewed in the context of the petitioner’s own confess ions and st

atements of guilt

. In addition, we also ag

ree with the Court o f Criminal

Appeals ’ conclusion that the petitioner failedto show any prejudice under the second prongof the an aly sis with respect to his guilty plea to th e o ff en se s i nv ol vi ng Ka re n P ul le y. 6 As we have pointedout in gr eat deta il, the re cord reveals that Nichols c onfesse d to the of fenses a gainst Karen Pulley

and that h

e knowingly a

nd volunta

rily entered pleas of guilty . The petition er was w ell aware that the defense strateg y was to acc ept responsi bility for his actions and focus on mitigating evidence

. Moreove r, give n his confessions and the consistent statements of guilt he madeto his trial c ounsel and others, it would be specula tion to find that the evidence at the post-conviction, which did not exclude Nichols as the perpetrator or otherwis e establish a defense, woul d have resul ted in a decision to proceed to trial instead of pleading guilty

. See Hill v. Lockhart , 474 U.S. at 59, 106 S. Ct. at 370.
2. Non-Capit

al Convict

ions-17-

The trial court’s findings with respect to counsel’s performance in the rape cases involving T.R., S.T., P.G., and P.R. were nearly identical to its findings with respect to counsel’s performance in the Kare

n Pulley cases, and it concluded that the petitioner had not established his allegations by clear and convincing evidence. We again agree with the Court of Criminal Appe als that the evidence in th e recor d does not p repon derate agains t the t rial c ourt’ s fact ual fi ndin gs and that the petitioner failed to establish that tria l counsel were de ficient.

As with t he Kare

n Pulley case, tr ial couns el’s inve stigatio n and def ense we re rea sonably shapedby Nichols’ confe ssions and statements to the non-capital offenses. Nichols confessed to the offenses involving

T.R., S.T., P.G., and

P.R. His confess ion to the rape of P.R. described his entry into the victim’s home with a screwdriver, the location of the victim, the clothing he tore from the victim, and the circumstances of the offense. His co nfes si on to th e r ap e o f P .G . d es cr ib ed hi s e nt ry, use of a knife, the location of thevictim on a couch in the living room, and the facts of the offe nse.
Alth ough the petiti oner now argue s that his trial counsel failed to investig ate evid

ence of his innocence and failed to challenge his confessions as false because they

were given in a short period of time in res ponse to lead ing questions asked by police officers, we once ag ain observe that he
never refute d his confessions or his statements to his trial counsel and never provided a basis for a false confession defense. I

n addition, the record reveals that substantial evidence corroborated

trial counsel’s testimony. By entering guilty

pleas for the off

enses agains t S.T., for example, the petitioner acknowledged

the evidence of his guilt, which included S.T.’s identification of him from
a photogr aph and th

e finding of a pisto l belong ing to S.T . in his car. In enter ing guilty pleas for the offenses against T.R ., the petitioner conceded the evidence of his g uilt and knowingly and voluntar ily waived his right to a jury

trial. Finally, in the trials for the offenses against P.G. and P.R., the victims made in-court identifications of the petitioner as the assailant, and the juries f ound that the petitioner’s guilt was proven bey ond a reasonable doubt.

In sum, the evidence at the post-conv iction hearings did not establish the deficient performance

of counse

l given t he petiti oner’s conf

essio ns an d con siste

nt sta tements of

guil t. We
c onclude that trial counsel’s representation did not fall below an objective stan dard of reasonablenes s either in failing to investigate any evidence of innocence or in failing to challenge the confessions as false.

In addition, we agree with the Court of Criminal Appeals ’ conclu sion that N ichols fa iled to show any prejudic e under t

he second prong

of the an aly sis. As we

have disc ussed, the record reveal s that Nichols c onfesse d to the offenses against T.R. and S.T. and that h e knowingly a

nd volunta

rily entered pleas of guilty

to the offenses. In light of his confessions and cons istent sta tements of

guilt,
as well as trial counsel’s testimony that the petitioner was fully a ware of the defense strateg y and all of his options , it

would be speculation to find from any of the evidence introduced at post-conviction th at he wo ul d h av e p ro ce ed ed to tr ia l i ns te ad of pl ea di ng gu il ty. See Hill v. Lockhart , 474 U.S. at 59, 106 S. Ct at 370. Similarly, the petitioner’s confessions to the off enses committed against P.G. and P.R. were read to the jury in the trials for those offenses, and the victims ide

ntified him as the-18-

perpetrator. The evid

ence at post-con viction with respect to P.G . and P.R. th erefor e failed to establish a reaso nable pr

obability of a diff erent ou tcome but for the p erforma

nce of c ounsel.

II

. Ineffectiv e Assista

nce of Counsel – Un

lawful A rrest
The petitione

r argu es th at his tri al counsel were ineffective for failing to seek suppression of his statem

ents on the basis that he was arrested without a warra nt and without probable cause on January 5, 1989. N

ichols as serts tha

t police n otes indic ate that i t was not un

til after his arrest that at least three of the victims identified him from a photograph taken by police on January 6, 1989, and that the state ments he ma

de during the peri od of alle ged ille gal det ention shouldhave bee n suppressed. The State maintains that the police verified the anony mous tip by discovering

evidence of Nichols’ prior arrest for a sex crime and that an ar rest was made af

ter at le ast

one of the

victims identifie d Nichols f

rom his mug

shot.
The tria l court re viewed th e evidence in

the record and the testimony of trial counsel, who recalled that they vigorou sl y sought

suppress ion of Nichols’ stat ements on

numerousground s. Alth ough the t rial co urt dete rmined tha

t counsel “should ha

ve more f ully pursued t

his issue, ” it found tha t [v]iewing the exhibitsand rec ords as a whole, it appears that some of the photo iden

tificatio ns occur

red aft er the pe titioner’ s arres t. Th is fact, however, d oes not establish that none of the identifications
occur r ed before

his arre st. Numer

ous docume

nts and/or statemen ts refer to some pre-arrest identifications. . . . No victims were calle d to ask at what point they had ma de t h ese id entificati ons. A ltho ugh petitioner has pointed out

the amb iguities , . . . he ha s failed t o establish the lack of any pre -arrest identifications and thus has failed to establish any prejudice

. . . . We agree with the Court of Criminal Appeals’ conclusion that the record does not prepond erate against the trial court’s factual finding s inasmuch as there is evide nce in t he record indicating that Nichols had been identified before his arrest. An of fense report dated January 6, 1989 and prepared by

the East Ridge Police Department states that officers r eceived an anony

mous tip on January 5, 1989, which led to a computer check and discove ry of Nichols’ prior arrest for a sex offense. The report indicates that a victim identified Nichols as the perpetrator from his mug shot and that “she was the fourth victim in a row” to identify Nichols. I n addition, the record reveals that at the trial of P.R., Captain Holland of the East Ridge Police Department testified that the vict i m ident ified Nichols prior to his arrest on January 5, 1989. A s both the trial court and Court o f Criminal Appeals observed, none of the victims were called to testify in post-conviction as to when they made an identification of Nichols. Accordingly , we conclude that the e vid ence in the record does not prepo nderate

agains t the tria

l court’sfactua

l finding s on this cla

imand that the petitioner has failed to establish that his trial counsel were deficient on this ground.-19-

In a similar vein, Nichols argues that counsel were ineffective for f ailing to seek suppression of his statements on the basis that he was not taken before a judicia l office r within 72

hours of h

is arrest. The tria

l court sp ecifica

lly r ejecte d the basi s for this c laim:
Alth ough no paperwork on the arraignme nt was intro du ced, there was evidence of an ar

raignm ent. In the t

ranscr ipt of the m

otion to suppress , the petitioner himself referred numerous times to the fact that he was arraigned the day after he was arrested. . . . I n addition, [the assistant

district a ttorney ’s] notes refer to an arraig nment before
a special judge as well. Under these cir cumstanc es, petitioner has not established that he was not arraigned, that counsel wa s ineffective or that he was in

any way prejudic ed by

counse l’s fail ure to chall enge the timing of the arraignment.

We a gree with the Court of Criminal Appeals’ conclusion that the evidenc e in the record does notprepond

erate a gainst t he trial cou rt’s factual findings on this issue. We also agree tha t the petitioner failed to show that suppression would not have been required given that Nichols was read his Miranda

rights, that he c onfesse d within 24 hours of his arrest, and that there appeared to be no intervening circumstances or misconduct in regard to obtaining the con fessions. S ee State v. Huddleston , 924 S. W. 2d 6 66, 674 (Te nn. 199 6). In sum, we c onclude t hat the pe titioner f ailed to establish that he wa s denied t

he effective as sistance

of counse

l on this ba sis.

II I. Ineffective A ssistance of Counsel – Mitigating Evidence

A. Standards in Capital Sentencing The Eighth and Fourteenth Amendments to the United States Constitution manda te that a death sentence be based on a

“particularized consideration of relevant aspects of the character and record of each . . . defendant.” Woodson v. North Carolina , 428 U.S. 2 80, 303, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976). As a result, courts are “particularly

cautious in preserving a defendant’ s right to counse

l at a capital sentencing hearing .” Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 1996) (quoting Deutscher v. Whitley , 884 F.2d 1152, 1160 (9th Cir. 1989) ). Although there is no requirement

that defense counsel present mitigating evidenc e inthe pena

lty p hase of a capital t rial, counsel’s duty

to investigate and prepare for a capital trial encompasses both theguilt and sentencing phases. Goad v. Sta

te , 938 S.W.3d a

t 369-70; State v. Melson , 772 S.W.2d 417, 421 (Tenn. 1989).
When a petitioner challenges a death sente nce based on

ineffe ctive as sistance

of counse

l in the penalty

phase, he or she m

ust show tha

t “there is a reaso nable pr

obability that, absent the error s, the sentencer . . . would have concluded that thebalance of aggr avating and mitigating circumstanc es didnot warrant death.” Strickland , 466 U.S. at 695, 104 S.Ct. at 2069. Where the alleged prejudice invol ves coun sel’s failure to present sufficient mitigating e vidence, several factors are of signif icance: (1) the nature and extent of the mitigating evidenc e that was available bu t no t presented; (2) whether substantially similar mitigating evidence was presented to thejury in either the gui lt or pena

lt y phase of the

proceedings; and (3) whether the re was such strong evidence of-20-

aggravating

factors that the mitigating evidence would not have affected the jury’s deter

mination. Goad v. Sta

te , 938 S.W.2d at 371.

B. Petitioner’s Allegations
The petitioner argues that his counsel were inef fective during the sentencing pha se of th e capital proceeding for the rape and murder of

KarenPulley for failing

to present sufficient evidence of mitiga ting cir cumstanc es. The St

ate maintains that the trial court pr operly denied r elief on this claim after finding that the mitigating evide nce now cited by

the petitioner would have duplicated
or been cumulative to that

introduced by trial c ounsel. We will review the evidence introduced by Nichols a t the post- convicti on hearings. Deborah Nichols Sullivan, the petitioner’s sister, who testified by deposition, said that she loved her brot

h er and tr

ie d to take care of him after their mother died of c ancer. She described Nichols as quiet, with a mild demeanor, and

recalled that he held his mother’s hand while she was ill. She testif

ied that sh

e was a fraid of her father’s intense spankings, which often left welts and stripes. She was “sure” Nichols r eceive d such spa

nkings a s well. She would not confirm that she
was sexually abused but did say “that would be me and not [the petitioner].” When they were placed in the children’s home, she was told it was because her fa ther could not care for them.
Debora h Nichols acknowledged that trial counsel probably tried to contact her

but that she didnotreturn their calls. Indeed, counsel Rosemary B ryan testified that she spoke to the witness two
or three t imes and that they hoped she would testify about the family background, their ab usiv e father, and the orphanage

. Counsel said, however, that Deborah Nichols “was the most unwilling witness that you would ever want to put on the stand.” The witness told counsel, for example, that she would not ta

lk about a ny a buse in the famil y and had nothing to say

that would help her brother. Moreover, her husba n d said tha t she would

not testif y under any

circumst ances. F inally , counsel said that Nichols decided he did not want to make his sister testify under the circumstances.
Several othe r witness es testif ied as to th

eir exper iences with Nichol s, as well as with Nic

hols’ fa mi ly. Diana Allred testified that sheand her b rother li ved with

the Nicho ls’ family

from 1961 to 1967 following

the deat h of their parents. She said that Nichols’ father would get angry

and “spank” Nichols and his sister, Deborah, an d that s he saw Deborah bleeding af ter the spankings. Allred testified that Nichols’ father often undressed in front of her and once asked if he coul d get in bed withher. She said that although Nichols seemed like a “normal”child when she lived there, he and his sister seemed frightened and shy years la ter after Allred had moved out. Royce Sampley , Diana A

llred’s b rother, testifie d that the

Nichols’ homewas a “t hreate ning” place in that Nichols’ father was often angry and cursing. Sampley

testified that he never

saw any sexual abuse of Nichols. Neither Allred nor Sampley had any c ontact with Nichols after 1971 and
were not awa re of the charges ag ainst Nichols at the time of the trial and sentencing. Denn i s Sa mp le y, brother of Royc e Sampley and Dia na Allred, testified that he was not familiar with Nich ols butthat he had lived in the same children’s home. He testified that he rec eived whippi ngs in the7 However, Pam ela Taylor, a part-t ime investi gator, test

ifi ed that she vi sit ed the chi ldren’ s home, conduct ed int erviews , and gathe red inf ormation a

bout it s operati on. She l earned th at t he home’s pol icy wa s to keep c hil dren sepa rate fro m tho se ou tside the churc h and that the ho me ha d guid elines as to how c orp oral p unishm ent with a pad dle was to be ca rried o ut. -21- home, as did other children, and was not permitted to tell any one. He described it as a “hellacious home.”
Juanita Herron , a cousin, sa

id that Nic

hols beca me “distur

bed” an d “sad” f

ollowing his mother’s death. She testif ied that N ichols’ si ster had

reporte d sexual abuse and that family member s arranged to have the children placed in a children’s home. Louella Wagner, also a cousin, testified that Nichols’ father was strict. Margaret Crox and Linda Crox Johnson, who had been neighbors of the Nichols, said that the petitioner’s father did not seem concerne d about his children.
Jim Gumm

testifie d that he w ent to sch ool with Nic hols until th

ey were bo th sophomore s in high school and that he alway s considered Nichols to be “one of the nicest guy s around.” Nancy At ch le y, who taught Nichols in the seventh and eight grades, testified that he had been a sweet, kind, and well-mannered

student who was quieter than the other boy s. Jacqueline Boruff, whose son was
a friend of Nichols when they were teenag ers, said that Nichols was “sweet” and that his father was
an “ass” who was cold and uncaring. L ike several of the post-conviction witnesses, Boruff sa id that she was not co ntact ed befo re the c apita l sent encin g procee ding.
Several witnesses testified regarding the c hildren’s home in which Nichols a nd his sister had been placed after their mother’s death. Claude Nic h ols, the pet itioner’s uncle, testified that the petitioner’s father s aid the childre n had been placed in a group home throug h a decision of the church. Winston Gonia, who had testified during the capital sentencing, testified that he had been
a board member of the Tomlinson Children’s Home; the group home was a

disciplined place but he
never saw any a

buse take place there. Jackie Bailey , an academic and personal counselor a t th e Tomlinson Children’s Home from 1974 to 1977, te stified th at she counseled D eborah N ichols but had no information about the petitioner or his background.
Linda Melton, a former house parent at the Tomlins on Chil dren’s Home, testified that the petitioner and his sis ter wer

e close. She said th at the 15- ye ar-old Nichols ne

ver cau sed any

problems and was a “sweetheart.” Melton testified that the children’s activities were church-r elated and that paddling was not used as a means of discipline. 7 Arlyne McG

riff testified by de

position that she was
a house parent at the home just before it closed; she reca lled that Nichols talked ab out his mother and did not ca

use any problems

. She testified that Nichols’ fath er visite d two or thr

ee times w

hile she was th

e house p arent. N

either Me lton nor Mc Griff we

re conta cted by trial cou nsel.

Fi na ll y, Nichols presented testimony fr om three expert witnesses. Dr. Kenneth Nickerson,
a clinical psy cholog ist, evalu ated Nichols in April and May of 1989. He testified that he interviewed Nichols and revi ewed not es taken by Dr. Frau sto Nata

l, a psychiatrist who had conducted an interview and examination. Dr. Natal’s notes indicated that Nichols denied murdering a ny of th e-22-

victims. Dr. Nickerson testified that Nichols had not shown any prior signs of “intense or explosive emotions,” that he wa s found co mpetent to stand tria l, and that he was not le gally insane a t the time of the of fenses.

Dr. David Solo vay , a clinic al psy cholog ist, te stified tha t he revi ewed the case not es, examination, assessme

nt, repor ts, and te stimony

of Dr. Er ic Engu m, who had

testifie d on Nicho ls’ behalf in the sen tencing proceeding. Dr . Solovay said that Dr. Eng um did a “fine job” and that Engum’s notes and da ta were similar to his own. He criticized Dr. Engum for fa iling to identify himsel f as a member of the defense team, howe ver, and for failing to present the petitioner’ s background

as a mitigating factor. Dr. Solovay did not agree with the diagnosis of intermittent explosive disorder , but inste ad diag nosed Nic hols as having borderline personality disorder. Dr. Solovay said that Nichols had learned to “ disa ssociate” from threatening situations. He admitted that his report revealed that Nichols had acknowledg ed his guilt to him and had shown remorse.

Dr. Frank Einstein tes tified that he is a mitigati on specia

list who wo

rks with de

fense at to rn eys in capital defense representation. He described that mitigation work involves examining
a defendant’s life, identify

ing life events that led up to theoffense, and presenting the complete story of the defendant’s life for the jury ’s consideration. Dr. Einste in testified that sig nifican t events in this c ase included Nichols’ inability to re member events before the ag e of ten, the presence o f Nichols’ cousins in his home, the death of his mother and grandmother, the physical and e motional abuse in the home, and his being placed in an orphana ge.
Dr. Einstein said thatDr. Engum and investigator Michael Cohan ide

ntified th e major e vents in Nichols’ life. He believed t hat trial counsel s hould hav e prese nted addi tional inf ormation t

o huma nize Nichols a nd to illustr

ate the c onduct of

Nichols’ father, the presence of phy sical and sexual abuse in the home , and the i so lation of the fa mily. Dr. Einstein said that although trial c ounsel identified many

of these themes, th

ey didnot present the evidence in such a way to establish a link between Nichols’ background and the crimes. He admitted that some mitigation themes can have a nega tive eff ect and t hat it is dif

ficult to s econd-g

uess coun sel.
C. Findings and Conclusions
The trial court, after considering the testimony of all of these witnesses during the postconvi ction hearin gs and r eview ing th e recor d, mad e ext ensiv e find ings o f fact, inclu ding:

Petitioner presented numerous relatives and acqu aintan ces at the hearin gs in this matter to demonstrate the amount and type of mitigating evidence which was not pres ented a t the sentencing hearing at the or

iginal tr ial. . . . Ma

ny o f these w itness es, h owever, were cumulative and only expounded on issues whi ch were raised throu gh the evide

nce pre sented by

trial cou nsel a t the s entencing hearin g. . . . The psycholog ist retai ned by post-conviction counsel
even testifie d that whil e he may have ha d more pe

rso nal hist ory

in-23- conducting his evalu ation, it w as esse ntially the same kind of informat ion Dr. En gum and

trial cou nsel had a t the original tria

l.
The trial court further concluded:

Many of the witnesses testified that they wer e not contacted and that the petitione

r probab ly d

id not know

how to con

tact them . Some witnesse s, however, testified that the petitioner knew how to contact them but that they rece

ived no contact and did not step forward on their own. Using

20-20 hind sight mor

e wit ness es may have

been preferable; based upon all the evidence and documentation, however, this court finds that counsel [were] not derelict in their investigation of this case and that no prejudice has been shown. . . . Any additional witnesses would have been cumulative or the weig ht of their testimony would have been mini mal. The aggravator of prior violent fe lonies wa s very

substantia

l.

We agree with the Court of Criminal Appeals that the evidence in the record supported the trial court’s findings and conclusions.

In applying

the first part of the analy sis in Goad v. Sta te , 938 S.W.2d at 371, the trial court
correctly noted that the nature and the extent of the evidence at post-conviction foc used on the petitioner’s famil y backgr ound, ab usive father, placement in a children’s home, and ple asant persona lity as a chil d. Althoug

h witnesse s desc ribed the pe titioner’s father as angry and abusive, Nichols himself

never testified regarding

any possible abuse he

suffered at home or

in the children’s home. On ly one w itness, Deborah Nichols, said that she saw her father a buse the petitioner; how ever, she made herself unavailable to trial counsel and re fused to testify. Severa

l witnes se s testified that Nichols was a pleasant child who was quiet and well-ma nnered. Although one witness claimedthat abuse took place in the children’s home, there was no evidence that Nichols was ever abusedthere; indeed, several other witnesses testified that the o rphanage was not an abusive environm ent. Finally , there w as expert testimony questioning whether Nichols suffered from a n explosive disorder, as diagnosed by Dr. Engum, and questioning the manner in which trial counsel presen ted th e mit igati ng them es and evide nce at t he sen tenci ng.
In applying the

second Goad

factor, the trial court correctly found that the evidence was cumulativ e to that pre sented by trial counse l at sentencing. Three witnesses at sentenc ing had testified about

Nichols’ backg

round an d placem

ent in an o rphanag e. Sever

al witnes ses said

they had known Nichols to have been a “fine y oung man” and to have possessed good character as a c

hild and
as an adult. Sev eral wit

nesses, including

Nichols, t

estified about his troubled

relation ship with hi s father and the abandon

ment asso ciated w ith being placed in an orph anage . Nichols denied, however, that he was ever phy sically abused by his father or at the orp hanag e. Fina lly , there was expert testimonyregarding Nichols’ intermittent explosive disorder and how it af fected his co nduct

. Ac co rd in gl y, the record indicates that trial counsel identified and supported therelevant mitigating-24-

themes. The evidence presented a t post-conv iction did not contes t trial counsel’s p erforma nce in this regard, but

rather, second-guessed the qua ntity of the mitigating

evidenc e and the

manner o f its presentation.

Fi na ll y, with resp ect to the third and final Goad

factor, it appears that any of the evidence at post -convic tion which was not cumulative or may have bolstered the evidence presente d at trial would n ot have affected the jury ’s determination given the strong evidence supporting the prior violentfelonie s agg

ravatin g circumstance . In s um, Nicho ls has not e stablishe d a reas onable probabil ity that the jury would have c oncluded that the “balance of ag gravat ing an d mitigating circumstances did not warrant death.” Strickland , 466 U.S. at 695, 104 S.Ct. at

2069; see also Goad v. State , 938 S.W.3d at 371.

IV. Ineffective A ssistance of Counsel – Prosecutorial Misconduct The petitioner next argues that his trialcounsel were ineffective for f ailing to object to the prosecution’s misconduct in eliciting the facts of the rape offe nses u sed to prove the prior violent felony aggravating circumstance during the sentencing phase of his capital trial. The State maintains that counsel were not ineffective beca use there was no misconduct by the prosecution.
The record reveals that in its cross-examination of Nichols, the prosecution asked about the rapes he committ

ed aga inst T .R ., S.T., P.G., and P.R. In particular, the prosecutor a sked whether Nichols had committed a rape on December 21, 1988, by using a knife; whether

Nichol s had committed a rape o n Decem ber 27, 1 988, by

using an electri cal cor

d; and wh ether Nichols had committed a

rape against two victims on January 3, 1989, one of whichinvolved the use of a knife. Nichols a dmitted tha

t he commit

ted all of the offe nses.
I n St ate v. Bigbee , 885 S.W.2d 797 (Tenn. 1994), the prosecutor introduced the facts of a prior murder conviction it relied up on as an ag gravating circumstance and strongly

implied in closing argum ent that the jury should return a death sentence based on the facts of the pr ior murd e r conviction for which the defendant had only received a life s ent ence. Indee d, the prosecutor’s argument containe d extensive

refer ences to the fac ts of the p

rior murd er, the vic tim of t he prior murder, the family of the victim of the pr ior murder, and the ne ed to impose the death pe nalty because of the prior murder. Id. at 810. We concluded that the introduction of such evidence is error where the prior conviction on its face involves violence or the threat of violence, and we he ld that the prosecu

tor’s ar gument, which impr

operly enhanced the impact of

the aggravating

circumstance, affected the jury ’s determination to the prejudice of the defendant. Id. at 811-12.

In applying Bigbee , we have focused upon the nature and extent of the evidence introduced, the prosecutor’s intent, and whether the evidence or arg ument impr

operly enhanced the agg

ravating circumstance or affected the jury ’s verdict to the prejudice of the defendant. See Statev. Stout , 46 S.W.3d 689, 701 ( Tenn. 200 1); State v. Chalmers , 28 S.W.3d 913, 918 (Tenn. 2000). We have, in effec t, clarified that Bigbee involved serious prosecutorial misconduct and that not every violation of the Bigbee

hold ing war rants revers ible e rror an d a re-s enten cing.8 W e note that bo th the Court of Crimi nal Appeals and the St ate rel y upon Tennessee Code Annotated § 39-13- 204(c), which p resen tly states in pa rt: “In all case s where the state relies upon the aggravat ing factor that

the defendant was pr eviou sly convi cted of one (1) or more felonies, other than the present char ge, whose statut ory elements invol ve the use of violen ce to t he person, eit her part y shal l be permit ted to i ntroduce evid ence concerning the facts and circum stance s of the p rior co nviction .” Ne ither the inte rmed iate co urt nor the State acknowledge that thi s st atut e was not in e ff ect unt il 1998, we ll aft er the of fen ses and t ria l i n th is case, nor do they otherwise cite reasons for applying t he statute in this c ase. -25- Ac co rd in gl y, our rev iew of the record reveals that trial counsel did not render ineffective assistance of

counsel by fa

iling to object

to the pro secutor ’s questio ning. F irst, we n ote that Bigbee had not been decided at the time of the sentencing in this case; thus, counsel cannot be considered deficient for fai ling t o obj ect to a viol ation of its hold ing. Second, the record indicate s that the f

acts of the underlying

rapes were briefly

cited by the prosecutor and admitted by N ichols wit hout a lengthy discussion or

de ta il ed de sc ri pt io n o f t he ra pe s. Fi na ll y, the prosecution did not enhance the aggravating

circumstance by

unduly or repe atedly emphasizing the unde rlying f acts of the prior convicti ons, nor

did it imply that the jury

should impose the death penalty ba sed on the facts of the prior c onv ictions in such a manner that affected the verdict to the prejudice of the petitioner. 8 Ac co rd in gl y, we conclude that trial counsel were not deficient in failing to object to the prosecutor’s conduct and that there was no reasonable probability of a different outcome even h ad co unsel objected.

V. Ineffective A ssistance of Counsel – Jury I nstructions
The petitione

r argu es that hiscounsel were ineffective for f ailing to request that

the trial court charge the ju ry with re gard to the de finit ion o f mit igati on, t he wei ght to be gi ven mi tigating evidence, the mitigating circumstances in Tennessee Code Annotated § 39-13-204(j)(7) and (8), and several non-statut o ry mitigating circumstances. As the State asserts, each of the issues is without merit.
First, this Court has held that a jury instruction on the definition of mitigation or the weight to be given mitigating circumstance s is not required. See State v. Brimmer , 876 S.W.2d 75, 83 (Tenn. 1993). Ne

xt, the rec ord did not

support a

n instruc tion on the

mi tiga ting cir

cumstanc e in Tennessee Code Annotated § 39-13-204(j)(7 ), i.e. , the youthfulness of the de fendant, given that Nichols was a 28-y ear-old high school gradua te with an hono rable discharg e f ro m t he mi li ta ry. Third, contrary

to the petiti oner’s contention, the trial court did charge the jury on the mitigating circumstance in Tennessee Code Annotated § 39-13-204(j)(8), i.e. , that the defenda nt’s cap acity

to apprec iatethe wrongfulness of his conduct or to conform his conduct to the requirements of the law
was substantia

lly impaired

as a res ult of a me

ntal disease or def

ect that s ubstantia

lly a ffecte d his judgmen t. Finally, we ha

ve held that the trial court was not required to charge the jury on specific, non-statutory mitigating

circumstances at the time of this offense and trial. See State v. Cauthern , 967 S.W.2d 726, 747 (Tenn. 1998). Accordingly , trial cou nsel wer e not def icient fo r failing to request these ins tructions

.-26-

In a related issue, N

ichols ar gues tha t trial counsel we

re defi cient fo

r failing to object to the trial court’s instruction that “the verdict must be unanimous” because it misled the jury to believe that unanimity was require d to return a life sentence. As the State observes, this Court has rejected argume nts contesting the unanimous verdict instruction. See State v. Nesbit , 978 S.W.2d 872, 902- 903 (Ten n. 1998); State v. Brimmer , 876 S.W.2d at 87.

VI. Ineffective A ssistance of Counsel – Constitutional Issues

Th e petitione r argues that trial counsel were ineffective for failing to challeng e the constituti onality

of the de ath pena

lty on the basis that it cannot be administered fairly and cites the dissenting opinion in Callins v. Collins , 510 U.S. 1141, 1143, 114 S. Ct. 1127, 1128, 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting). This Court has repeatedly upheld the constitutionality of the death penalty in this State. See Terry v. State , 46 S.W.3d 147, 169 (Ten n. 2001); State v. Stout , 46 S.W.3d at 71 9; State v. H all , 976 S.W.2d 121, 166 (Tenn. 1998).
Nichols also arg

ues that tr

ial couns el w ere i neffective for failing to challeng e the constituti onality

of the death penalty

on the basis that it violates the fundame ntal rig ht to life without
se rving an y c ompelling state interest. This Court has rejected such a claim. State v. Mann , 959 S.W.2d 503, 5 36 (Tenn . 1998); State v. B ush , 942 S.W.2d 489, 523 (Tenn. 1997).

VII

. Ineffective A ssistance of Counsel – Psychologist’s Notes
The petitioner argues that his trialcounsel were ineffective for fa iling to argue that the trial court’s order requiring the defense to disclose the notes of Dr. Eric Engum at trial violated his right agains tself-incrimination under the United States and Tennessee Constitutions. TheState contends that trial cou nsel were no t ineffective because the disclosure of the note s for the purpose of impeachment or rebuttal did not violate the petitioner’s right ag ainst self-incrimination.
The record reveals that the trial court’s order stemmed from the defense’s failure to prepare a final report of Dr. Engum’s findings until the second day of trial. On direct appeal, we held that the notes were discoverable under the circumstances of the

case pursuant to the discovery provisions of Tenn. R. App. P. 16(b)(1)(B):

We thus conclude that when a psy chologist or psyc hiatrist does not preparea summary

report, but insteadrelies on extensive memoranda to record not only observations and hy

pothesesbut also evaluatio ns, such records are

discoverable. . . . Although we do not suggest that the trial cou

rt should r

equir e a form al report in every case, we do conclude, under the facts of this cases, t hat Rule 16 authorized discovery of the av ailable r

eports to the extent that they related to the testimony to be giv en at tria

l.
State v. N ichols , 877 S.W.2d at 730.9 DN A analysis “ means the process through which deoxyri bonuclei c ac id (DNA) in a human bi ological

specimen is anal yzed a nd compar ed wit h DNA from another

biologi cal specimen for identif ication purposes.” Tenn. Co de A nn. § 4 0-30 -402

. -27- The petitioner now argues that his counsel were inef fective for failing to arg

ue that the disclosure violated his constitutional right against self-incrimination and that the error w as prejudicial because the prosecution used the notes to impeach the testimon y of Dr. Engum by chargingthat he was a member of the defense tea m attempting to help Nichols avoid the d eath pe na lt y. Alth ough Moore and Bry an admitted at the post-conviction hearingthat the disclosure and the prosecution’s cross-e

xamination o f Dr. Eng

um was da

maging to the defense, they

did not believe it affected the ju

ry ’s verdi ct.
As the State notes, this Court has indicated that wher e a defendant initiates a psychiatric examination and introduces evidenc e from the examinatio n, his rig

ht against self- incrimina

tion is notviolated by disclosure of the information or the prosecution’s use of the information for impeachment

and re buttal. See State v. Ma rtin , 950 S.W.2d 2 0, 24 (Te nn. 1997) . The same principles apply to the sentencing proceeding of a

capital trial. State v. Re

id , 981 S.W.2d 166, 172- 73 (Tenn. 2001).
Moreover, although as the trial court noted, “hindsight may indicate that the failure to prep are a final re port may have been imprud

ent,” it isclear th at the issu e did not a ffect th e jury ’s verdi ct. The prosecution would ha ve be en entitled to a final report that would not have violated the petitioner’s right

agains t se lf-incrimination; indeed, on direct appeal, we said that the notes wer e tantamount

to a repo rt under the fac ts of this case. Dr. Engum testified that he evaluate d Nichols and interviewed

several background witnesses and tha t he ultimately determined that Ni chols h ad an intermittent explosive disorder. The prosecution’s cross-examination attempted to impeach Dr. Engum’s testimony by

charging that Engum wa s a member of the defense team and by showing that Nichols acted

with deliberation and in his own self interest. In sum, when the evidence is viewed along with the pe

titioner’ s confes sion and th e overw helming weight of the aggravating circ umstance, it is clear th at the pe

titioner h as faile d to show a reasona ble probability of a diffe

rent outcome but for counsel’s failure to argue that the di sclosure o f the notes violated his right against selfincrimination.

VII I. Remand for Additional DNA Testing

The petitioner argues that the Court of Criminal Appeals erred in refusing to rema nd the case to the trial court for

additional DNA testing to establish his innocence. 9 The State maintains that the issue of additio nal DNA te sting wa s not prope rly raised by the pe

titioner and was correctly denied.
The record indicates that the post-conviction trial court authorized DNA testing of evidence taken from the rape kit performed on Karen Pulley . After finding that “[n]o r esults whi ch would establish any prejudice

to the petitioner . . . were submitted to the court at the final hearing ,” the trial10 An appellate court “on its ow n mo tion or on m otion of a party may consi der fact s concerni ng the a ction that

occurred after judgment. Consideration of such fact s lies in the discr etion of the appell ate court. Whi l e neit her controlling nor fully m easur ing the c ourt’s discre tion, co nside ration g enera lly will extend only to th ose fac ts, capa ble of ready dem onstration, affecting the positions of the pa rties or the subject ma tter of the action such as mo otness, bankr uptcy , di vorce, deat h, ot her j udgment s or pr oceedi ngs, rel ief fr om the jud gme nt requ ested or gra nted in the t rial court , an d othe r si mil ar mat ter s.” Tenn. R. App. P. 14.
-28- court d en ied th e peti tion er’s re quest for add itio nal DN A test ing. Th e peti tion er did not ch allen ge the trial court’s denial of additional DNA testing as an issue on appe al. Following the Court o f Criminal Appeals ’ decis ion and its denial of a petition to rehear, Nich ols filed a motion for c onsidera tion of pos t-judgm

ent fac ts 10 requesting that the case b e remanded for additional DNA t esting. The motion asserte d that the

Court of Cr

iminal App eals’ rejection of the serology evidence concerning Ka r en Pulley in effect meant that the court was requiring the petitioner to show actual innocence to establish the prejudi c e compone nt of his ineffective assistance of counsel claim, and that additional DNA testing wa s required to meet such
an “unreasonable” standard. The motion was accompanied by the records and documents regarding Nichols’ initial request for DNA analy sis, which had been granted by the trial court, and his motion for additional DNA testing, which had been d enied. Th e petitioner asked that the record be supplemented and asse

rted tha t due proc ess requ

ired con siderati on of this is sue beca use his libe

rty interest s outweig

h any interest the State may have in f inality of the jud

gments.
The Court of Criminal Appeals denied the motion for two reasons. First, the court stated that it had not required actual innocence to establish the prejudice prong of the ineffective assistance of counsel claim; ins tead, it a pplied the

analy sis of whe

ther the petitione r had shown a reas onable probabil ity of a different outcome. Second, the court found that the motion was not ba sed on pos tjudgment facts as required by Tenn. R. App. P. 14. The court concluded: Seeking to utilize the

doorway made ava

ilable by [Ru le 14] for consi de ration of ‘facts concerning the a ction that occurred after judgmen t, ’ the pet itioner asks by the motion to have this court consider argume nts and supporting documents as ‘facts’ and rule ex parte on a matte

r which w as not ra

ised previously

in his appeal. . .

. The petitioner has recast

the arg uments raised in his previous petition to rehear, that this court

erred in its treatment of the serology evidence presented and in its application of the standard for determining whether counsel w as ineff

ective, and now pr

esents them as the

basis of his motio n to consid

er post- judgmen t facts.
Our review of the record revea ls that the Court of Cri minal Ap peals correctly denied the motion for cons ideratio n of post- judgmen t facts and the r equest to remand the case for additional DNA testing. The petitioner misconstrues the appellate court’s analy sis of the ineffective assistance claim – the court concluded that Nichols failed to show that his trial counsel were de ficient inasmuch
as he repeatedly

admitted that he committed the offenses and the serology evidence did not

exclude-29-

him as the assailant. When the c ourt also consider ed the pr ejudice componen

t, it properly a

nalyzed whether the petitioner showed a reasonable pr obability of a differ

ent outcome.
In any event, th e motion fo

r conside ration of post-judg

ment fac ts was improper given that it did not contain post-judgment facts but rather reasserted matters that had been denied by the trial court and were not appealed

at all by the petitioner. I

n addition, as the State recognizes, relief based
on DNA analy sis may be sought upon making t

he requi red show ing purs uant to the appropr iate procedure. See Tenn. Code Ann. § 40 -30 -40 1 (“ Po st -Co nvi cti on D NA A nal ysis Act of 2 001 "). In sum, the Court of Criminal Appeals did not abuse its discretion in denying relief.

IX. Right Against Self-Inc rimination

As summarize d earlie

r, Nicho ls did not te stify

in support

of his post-con

viction a llegat ions. Moreover, when called to the stand by the prosecution, the petitioner invoked his right against selfincrimination and refused to answer questions about the offenses or the pos t-conviction alleg ations.
Alth ough the State did not appeal the issue, the Court of Criminal Appeals held that the trial court’s decision to allow the petitioner to invoke his right against self-incrimination was errone ous. The intermediate court reasoned that there is no right against self-incrimination in a post-conviction
case under the Fifth Amen dment to the United States Constitution or article I, § 8 and 9 of the Tennessee Constitution because the petitioner had already been convicted of the of fense s being challenged. The cou rt also sta ted that a reviewing cour

t may draw a negativ e infer

ence fr om a petitione r’s fail ure to te stify

in support

of the pos t-conviction alleg ations.
Nichols initially

argue d that the

Court of Cr

iminal App eals er

red in ad dress i ng this issue because it had not been appealed by the State and was not proper ly before the court for review. Nichol s has addit

ionally argue d that the

re is a ri ght ag ainst self

-incrimi nation in a

capital p ostconviction procedure due

to the likelihood that a capital conviction or sentence may

be reversed and remanded for new procee dings. I

n sum, Nichols argue s that a pe titioner s hould not be

forced to make statemen

ts in a post- convicti on hearing bec ause the state ments may be used in later procee dings if the pe

titioner i s success ful in obta ining pos t-conviction relie f. The Sta

te argues that the Court of

Appeals erred in addressing this issue beca use it was not raised on appealand that the court’s decision amounts to an improper advisory opinion.
Alth ough we ordered the parties to file additional briefs on this issue, we now agree with the parties t hat the inte rmediate court erred in addressing this issue. See

Tenn. R. App. P. 13(b) (“Review will gener

ally extend only

to those iss ues pres ented fo r revie w”). Nic

hols was permitted to assert h is right a gainst self-incrimination by the trial c ourt and did not answer any of the questions asked by the pr

osecutor about the offense s or the po st-convi ction alle gations

. The State opted not to appea l the tria l court’sruling i n this resp ect.
Alth ough the petitioner was not prevented from a ssert ing a right against self-incrimination, he argues on this appeal that he was harme d because theintermediate court drew a negative inference-30-

from his fail ure to testify as it consider ed each issue on appeal. I t is not clear from the c ourt’ s language, however , whethe r it did in fact d raw suc h an infe

rence o r whethe r it was sim

ply observing that a court may c

hoose to do so. (“[W]e conclude that an adverse inference c ould have been drawn because of the petitioner’s refusal to answer questions of the State.”). I n either case, this Court has drawn no infer

ence fr om the fa ilure to test ify, and it has not aff ected our conclusions that the evidence supports the trial court’s findings and that the petitioner has not shown h e is entitl e d to relief. Accord

ingly , our rev

iew of wh

ether a right a gainst s elf-inc

riminatio n appliesin postconviction cases under the facts and circumstances of this case would amount to an advisory opinion. We therefore hold that the Court of Criminal Appeals erred in addr essing this issue, but that the error has not affected the result.

X. Trial Court’s Findings and Cumulative Error
The petitioner argues that the trial court’s finding s were clearly er ro neous and that the cumulative effect of all the errors in the rec ord amounted to reversible error. Our re view of all of the above issues necessarily

reveals that these two contentions are without merit.

CONCLUSION
After reviewing the record and a pplicable authority, we

conclude: (1) that

the petitioner was notdenied hi s right to

the eff ective a ssistance

of counse

l based on

the failu re to inve st igate a nd chall enge his confessions as false; (2) that the petitioner was not denied his right to the e ffective assistance of counse

l based on the failu re to cha llenge the leg ality

of his ar rest; (3) that the petitioner
was not denied his right to the effective assistance of counsel at the se ntencing phase of his capital trial based on the failure to present additional mitigating evide nce; (4) that the pet

itioner w as n ot deniedhis right to the effective assistance of counsel at the sentencing phase of his capital trial based
on the failure to object to misconduct by the prosecution; (5) that

the petiti oner wa s not denie d his rightto the ef

fective assistanc e of coun sel at the sentenc ing pha se of his c apital tr ial base d on th e failure to reque st mitiga

ting instr uctions; (6) that the petitioner was not denied his right to the effectiveassistanc e of coun sel at the sentenc ing pha se of his capital trial based on the failure to raise issues regarding the constitutiona lity of c apital punishment; (7) that the petitioner was not denied his right to

the effective assistance of counsel at the sentencing phase of his capital trial base d on the failure to object

to th e d is co ve ry o f n ot es pr ep ar ed by a defense psy chologist on self-incrimination ground s; (8) that t he Court of Criminal Appeals did not err in refusing to remand the c ase for additional DNA testing; (9) that the Court of Cri minal Appe als erred by address in g the issue of whether the petitioner had a

right against self-incrimination in this post-conviction proceeding , but the error had

no eff ect on the

outcome; and (10) that the tr ial cour t’s findin gs wer

e not cle arly
errone ous and c umulative error d id not req uire the revers al of the

petitione r’s convictions.

Ac co rd in gl y, we affirm the Court of Criminal App eals’ jud gme nt. It appearing that the petitioner is indigent, costs are taxed to the State of Tennessee.-31- ____________________________________ E. RIL EY ANDER SON, JUSTI CE