### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON April 9, 2002 Session

JOHN PARKER R OE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County No. P-22397 Joseph B. Dailey, Judge

No. W2000-02788-CCA-R3-PC - F iled November 20, 2002

The Defendant, John Pa rk er Ro e, wa s c on vi ct ed by a jury of first d egree premeditated mur

der. His conviction was affirmed on direct appeal. See State v. John Parker Roe , No. 02C01 -970 2-CR00054, 1998 Tenn. Crim. App. LEXI S 39 (Jackson, Jan. 12, 1998), perm. appeal denied(Tenn., Jan. 4, 1999). The De fenda nt subsequently filed for post-c onviction relief, alleging that he rec eived ineffectiveassistance of coun sel at trial. After an evidentiary hearing, the post-conviction court denied r elief. T his appea l followe d. We aff

irm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which D AVID G. H AYES and J AMES C URWOOD W ITT , J R ., JJ., joined.
Douglas A. Trant, Knoxville, Tennessee, for the appe llant, John Parker Roe.

Paul G. Su mm er s, At to rn ey G en er al an d R ep or te r; J. Ro ss Dye r, As si st an t A tt or ne y G eneral ; Willi am L. Gibbons, District Attorney General; and Amy

Weirich, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

In this appeal from

the trial court’s denial of post-conviction relief, the Defendant’s primary contention is that his t

rial lawye rs were ineffe ctive. Ho wever, he alsoclaims that he was denied due processbec au se one of his jailers sat on the jury that convicted him, and that the State committed prosecutorial misconduct by failing to disclose certain information about a witness and by making certain statements during closing arg ument.

STATUTE OF LIMITATIONS As a preliminary ma

tter, we address the State’s contention that the petition was filed outside the statute of

limitations . The State

did not ra

ise an issue about th

e timelin ess of the filing in its response to the petition; rather, the State raised thi s issue for the first time on appea l. The Stat

e1 Th is Court allowed the fi ling of t he supplemental record because we viewed the trial court’s order to be one which corrected a clerical mi stake. Cleri cal mistakes i n the record and err ors in the recor d ari sin g fr om overs igh t or omiss ion m ay be c orre cted b y a cou rt at any time

. See Te nn. R. C rim. P . 36.
-2- bases its contention solely on the filing date stamped on the face of the pe tition, which indicates that the petition was filed outside the one-y ear limitations period.
During the ora l ar gument of this case, counsel for the Defe ndant stated that the issue concerning the filing date had been discussed by the parties in open court prior to the hearing on the petition. The Defendant’s counsel further stated tha t the trial court

determined, after questioning the court clerk, that the filing date stamped on the petition was incorrect and that the petition had in fact been timely filed. Counsel fur ther stated that the Assistant District Attorney General who represented

the State in the post-conviction proceedings in the trial court ag reed that the petition was timely filed. In response t

o the Defendant’s lawy

er’s statements, the Assistant Attorney General representing the State during oral argument asser ted that the State simply relied upon the d atewhich
was stamped o n the petition. At or al argument, this Court suggested to the Defendant’s counsel that he consider

seeking to suppl ement the record to reflect that the petition had bee n timely filed. Subsequent

thereto, this Court ordered that the record be supplemented wi th a c op y o f the trial court’ s order dated April 19, 2002 which stated that the trial court had previously found that the petition was “received by the Clerk’s office on December 31, 1999 and was considered filed at that time, that simply a clerica l error in the Clerk’s office resulting in the petition being stam p filed January 12, 2000, . . . .” 1

The State subsequently req ueste d this Court

to recon sider the

order a llowing t he reco rd to be supplemented with the trial court’s order. The State arg ued that our orde r made imp

roper us e of Rule 36 and improperly a llowed the trial court to “re-write history” in this case. Given the State’s insistence that a factual dispute remained in the ca se, we g

ranted t he State’ s reques tand remanded this matter to the trial court for the purpose of conducting a hearing and allowing the parties t o present evidence and be heard on the issue of the timeliness of the filing of the Defendant’s petition for post-conviction relief.

The trial court conducted the hearing on July 19, 2002. The trial court subsequently entered an order, much of which we deem appr opriate to incorporate herein: The Court con ducte d an evidentiary hearing pursuant to the Order of the Cou rt of

Criminal Appeals entered on May 24, 2002. The Petitioner called threewi tnesses as well as introducing four exhibits. First, the Petitioner calledLasherrie Ha rris, who is andwas at the end of 1999 and in the beginning of the year of 2000 employ

ed in the mailroom which receives all mail for the Shelby County Criminal CourtClerk. A log book is kep t f or all UPS packages which are received. Ms. Harris brought with her and a copy was introduc ed of
a log entr y f rom J anuar y 3, 2000, which showe d a UPS package-3- havi ng been re ceived from the office of Doug las A. Trant to the Cr im inal Court Cler

k. This log

book i[s] kep t in the nor

mal cour se of business and the entry

was made by Ms. Ha

rris herself. The P etitio ner next c alled Joe Wa rren who is a Deputy Criminal Court Clerk. One of his responsibilities is maintaining the files of this Court in

the norma

l course of busine ss. He broug

ht with him the file in this case which is Docket Number 22397. Within that filewere located four documents of particula r pertinen ce to this hearin g. First, there were two copies of a letter dated December 30, 1999 from Douglas A. Trant to the Criminal Court Cler k. Those letters were cover letters stating that enclose d with

the letter was the Petition for Post Conviction Relief for filing and stated that in the abundanceof caution the Petition was bein g sent by two means , UPS andExpress Ma

il, in order

to insure that it would be filed before the statute of limitations ran on January 4, 2000. Also within the file were the two envelopes from UPS and, also, the Express Mail envelope which showed that it had been
ma iled from Douglas A. Trant’s office on De cember 30, 19 99 an d
was receiv ed by

the mailr oom on beh alf of the

Cle rk on D ecember 31, 1999 with a receipt signature by the addressee. P etitioner next called Pat Vincent who at the time of t hes e events was head

of operations for the Criminal Court Clerk’s office andhad been for

some 26 y

ears. H e testifi ed in

the normal course of business the Clerk ’s offic e retrie ved its mail from the mailr oom at least once an d o ft en tw ic e a da y. He said when the issue of this filing
arose he checked into the matter and discovered that the stamp filed date on the Petition of

January 12, 2000 w as a

clerica l error a nd that, in fact, the Petition hadbeen received by the Clerk on December 31, 1999 as was evidenced by the matters previously ref erred to above in the file of the Criminal Court Clerk. The State introduced no evidence. It is clear from the evidence introduced that the Petitioner not by one but two methods made sure that his Petition was timely filed anddid so prior to the ex pirat ion of the statute of limitations on January 4, 2000. The Petition w as addr essed to the Criminal Court Clerk at its appr opriate address and was received by the Clerk’s agent, the mailroom. If the mailroom o

r the Cler k did not route it to its appropr

iate plac e, that is not the fa ult of the Petitioner

who did everything

he could to make sure that it was timely filed. He sent it to the appr

opriate addresswithin the appropriate period of limitations andthe Petition was received not once, but twice, by the agent of the Clerk’s office

within the

statute of limitations. To adopt the State’s argument that Petitioner

would be r

esponsibl e for ma

king sur e that it2 The pro ced ural histo ry of this case gives thi s court an opportunity t o note our concerns about the State rai sing

the statut e of limit ations defense f or the first time on app eal. Pursu ant to the 199 5 P ost-Co nviction Act, “[n ]o co urt shall have juri sdic ti on to c onsi der a pe ti ti on fil ed after” the one-y ear statut e of limit ations has run, absent u nique ci rcumsta nces not perti nent t o this case. Tenn. Code Ann. § 40-30-202(b)( 1). Furt hermore, t

he Act i mposes an affirm ative d uty on tri al cour ts to dismis s peti tions “[i ]f i t plai nly appears fr om the fa ce of the peti tion, any anne xed exhibi ts or t he prio r proceedings in t

he cas e th at t

he pet it ion was not fil ed . . . with in the ti me set f orth i n the s tatu te of l imit ations

. . . .” Id. § 40-3 0-20 6(b ). Bec ause the timely filing of the petition is a “jurisdi ctional” f act, we are hesi tant to consi der the issue waive d if not ra ised in the trial cou rt. In this case, the st atute of l imitati ons ran on January 4, 2000. The petit ion was stamped “filed”on January 12, 2000. The State d id no t raise an issue ab out the timelines s of the filing in its response to the petition. The record of the original heari ng on the petiti on contains no reference to the st atute of l imitati ons iss ue. At the commence ment of t he heari ng on remand, the t rial court s tate d that

the s tatu te of l imit ations iss ue had been discus sed prior t o the ori ginal heari ng on the merit s of t he peti tion, and that

the cour t determined at t hat t ime that t he peti ti on had been properly and ti mely f iled. Unfortun atel y, t

hat discussion was not i ncluded in the record brought before this Court . On appe al, forthe firs t ti me, the State contended that t he petiti on must be dismissed as unti mely. Given the jurisdic tional na ture of the timely filing req uirem ent, it beh oov es the S tate to ra ise this iss ue at t he tri al level because, (con tinued ...)
-4- got to the mailroom to the Clerk’s off ice wo uld be a travesty

of justice andcerta

inly undermine the intent of the leg islature and the Supreme Court and the enactment of our statutes and rules governing post -conv icti on pet itio ns and their fili ng. The Court holds, now for

the third time, that this Petition was timely filed. . . . It is ordered that the clerical error of the filing date of the Petition be corrected to indicate that t he Petition was filed on December 31, 1999. Tenn. R. Crim. P. 36

. . . .

Taking issue with the trial court’s findings of fact and conclusions of law, the State argues that the Defendant has failed to demonstrate by clear and convincing evidence that his petition for post-conviction relief was received by the clerk on or before January 4, 2000. The State contends that the record does not

establish that the mailroom was an “agent” of the cler k; rather, the evidence merely establish es “ ha bit evidence that employees of the clerk’s office routinely went to the mailroom at least once and may be twice a day

to retrieve the mail.”

We find the Stat e’s arg ument unpersuasive. The proof adduced at the he aring established that the mailr oom for the Crimina

l Court Cler

k’s offic e rece

ived an E xpress Mail

e nvelope from defense counsel on December

31, 1999 and a UPS package from defe nse counsel on January 3, 2000. Testimony

further established that the court clerk retrieved its mail from the mailroom at least once
a day. Fina

lly, the director of ope

rations of the criminal court clerk’s office testifi ed that he investigated

the matter and determined that the package “was her e timely.” A post-conviction petition filed by

an attor ney is “filed when it is r

eceive d by

the cler k of cour t.” Tenn . Sup. Ct. R. 28, § 2(G). The proof

contained in the record supports the trial cou rt’s conclusion th at the pe tition in this case was file d timely , and this i ssue is the refore without me

rit. 22 (.. .cont inu ed)

as in this case , findings o f fact may b eco me ne cessa ry to de termin e whe ther a p etition wa s, in fact, filed time ly. See, e.g. , Sup. Ct. R. 28, § 2(G) (“If papers requi red orpermitted to be fil ed by these rules are prepared by or on behalf of a pro

se petition er inca rcera ted in a corre ctiona l facility and are not receiv ed by the clerk of the court un tilaft er the time f ixed for fil ing, f

iling shall be ti mely if the papers were deli vered to t he appropriat e indi vidual at the co rrectio nal facility within the time f

ixed f or fi lin g.”). It becomes apparen t that the date sta mped on the f ace of a petiti on for post -convi ction reli ef is not n ecess ari ly the date whi ch det ermi nes w heth er the pet it ion w as t imel y f il ed. W hether a petit

ion is timel y fi led inv olves is sues of f

act. When the Stat e ass ert s t he st atut e of l imi tations as a de fen se, a pet it ioner shoul d have th e opp ortun ity for an e viden tiary hea ring on the issue. T his Co urt can not make find ings of fac t and an as sert ion of an untime ly fil ing made f

or the f irst time on appeal may, as in thi s case, require this Court to remand the matter to the tri al court in order to determine whether t he trial court had juri sdict ion to en tert ain t he peti tion. Otherwi se, in or der t o accept the State’s ar gument on appeal, we would be placed in the position of having to ass ume that the t rial court ex ceeded its jurisdiction, wit

houtgiv ing the peti ti oner a n opportuni ty to d emons trat e fact s est ablis hing j uris dicti on. Here, we
con clude that assum ption would have b een inc orre ct.
-5- We turn now to the issues raised b y the De fendant in this appeal. First, however, a brief review o f the fa

cts adduc ed at tria

l will be he

lpful.

FACTS The Defendant was a

police officer with the Memphis Police Department. At about seven o’clock on the morning of September 16, 1994, the Defendant called fellow officer Carl Fowler and askedhim to come to the Defendant’s house. Mr. Fowler te stified that the Defendant told him over the phone that Michelle, the Defendant’s wife, had r un off. When Fowler arrived about an hour later, he noticed that Michelle’s car was ther e. Fowle r asked t he Defe ndant whe

re Miche lle was, and the Defendant replied, “I

t’s worse than you think.” The Defendant

then told Fowler that

he had shot Michelle and that she was in “the bottoms,” an area of scrubland behind

the Defendant’s house. The Defendant

told Fowl er that he and Michelle had been hunting rabbits, and that he accidentally

shot her in the hea

d with his se

rvice r evolver . When Fow ler told th e Defe ndant tha t they needed to call the police, the Defendant adamantly refused.

Mr. Fowl er was a

good fr iend of th e Defe ndant and had spen t conside rable tim e with him, bothon and off the job. Fowler testified that he “thought [he] knew [the Defendant] very

well, and the person [he] ran into that day was not the John [he’d] ever met.” Fowler explained that he had smelled an odor of alcohol on the Defendant. Fowler te stified that, in his opinion, the Defendant was “mentall y ill” that morning, and explained that earlier that week, the Def endant had told him that he hadheard voices coming out of the heating vent. Fowler described the Defendant’s behavior on the morning in question as “weird” and “strange.” Convince d that the Defend ant could

not contr ol his own beha vior, Mr. Fowler

became fearf ul for his o wn life a

nd left.

Mr. Fo wl er fl ag ge d d ow n D ep ut y Wi ll ia m H ug he s w it h t he Sh el by C ou nt y S heriff ’s Department

and told him about the shooting. When Deputy Hug hes arrived at the Defendant’s house, he found the Defendant sitting on the tailg ate of hi s truck drinking a beverag e. Hughes asked the Defendant where his wife was, and the Defendant replied, “[S]he could be anywher e.” Hughes
no ti ce d t ha t t he De fe nd an t w as pe rs pi ri ng ve ry h ea vi ly.-6-

Officer Anthony Chambers ar

rived as back-up and entered the Defendant’s house. There he found Michelle’s body ly

ing on the bed. She had been shot in the head and a towe l was draped over the wound. Hughe s subse quently arre sted the Defendant who, according to Hughes, appeared “[v]ery calm.” The Defendant’s profuse sweating concerned Hug hes, however, and Hughes asked
a paramedic to check his vital signs. Paramedic Randa ll Wayne Rhodes testified that the Defendant’s heart rate and respiration were higher than normal, and that he appeared disoriented, or “spaced out.” The Defendant denied having take n any drug s and told Rhodes thathe had been under a lot of str

ess. Sergeant F. B. Roberts arrived on the scene and spoke with the Defendant as he sat in the squad car. Roberts testified that the Defendant “seemed very confused” and never told him what had happened. He described the Defendant’s conver sation as “irrational.” In the house , Roberts found
an empty bottle of whiskey and four bottles of an over-the-counter drug called “Mini-Thins” in the trash. Other bottles of Mini-Thins containing pills were found throughout the house

. Larry Graham, a long time friend of the D efenda nt, visited the Defendant while he was in jail. There, the Defe

ndant told

Mr. Grah am both

that the killing had been accidental and that he didn’t know/remember

what had happened. Graham stated that the De fendant had appeared “glaze-eyed,” and “wasn’t the person that [he] knew.”

Daniel Kaltreider

testified that he met the Defendant through his cousin, John Barnette. Mr. Kaltreider

attendeda bar-b-cue in the spring of 1994 that the Defendant and Michelle also attended. There, he tes tifi ed, th e Defen dant t old h im “t hat he had a t remend ous am ount of rage at his wife,” andthat he was going to kill her. Kaltreider testified that the Defendant asked him if he thought the Defendant

could “g et away

with it” if

the Defe ndant “sa id it was an accidental discharge .” When Kaltreider

replied no, because he would have to testify against the Defendant, the Defe ndant stated, “Then I’ll have to kill you.” The con ve rsation continued, according to Kaltreider, with the Defendant stating, “Well, I ’ll just have to play cra zy for about seven - - six months.”

John Barne

tte had known the De

fendant severa l ye ars and t

estified that t he Defenda nt’s marri age with Miche

lle was “rocky .” He stated that the Defendant had told him that the Defendant wanted to divorceMichelle and also spoke of wanting to kill her. The Defendant told him that he had choked Michelle at one point and thought about killing her the n.

On cross-examination, Mr. Barnette testified about the massive amounts of Mini-Thins that the Defendant

was taking in 1994. Barnette testified that he saw the Defe ndant taking ten to fifteen of these tabl ets at a time. He e xplained th at these

pills, comb ined with t

he Defe ndant’s d rinkin g , caused the Defendant to develop a Dr. Jeky ll/Mr. Hyde p ersonality. Barnette testified that the Defenda ntspoke to him about hearing voices and seeing ghosts. The Defendant beca me ver y paranoi d and suspicious about Michelle. During the summer of 1994, Bar n et te testified, the Defendant’s conversations bec ame inco herent, irrational, and “bizarre.” Ba rnette described the Defendant

as “out of his head” and testified that he became “deeply conce rned” about the Defendant because of his increasingly irrational behavior.-7-

Peter Connelly was one of Miche lle’s teachers at the college which Michelle attended. Mr. Connelly testifie d that, two days befor e her death, Michelle told him that the Defendant had abused her and thre atened t

o kill her. She wrote

down her

parents ’ phone n

umber and asked Co nnelly to callthem if she did not show up for her next class. When Miche lle failed to attend he r next clas s on the morning of her death, Connelly called her parents. Michelle’s mother su bsequen tly w ent to the Defendant’s house, arriving while O fficer Fowler was there

. Experttestimony established that Michelle was killed by a single gunshot to her head, fired from twelve to twenty-f

our inches away . The bullet was fired from the Defendant’s police service revolver.

Dr. O’Bria

n Cleary Smith, who p erformed the auto psy on Michelle, was a sk ed on cro ssexa mination about ephedrine, the active ingredie nt in Mini-Thins. Dr. Smith testified that , whe n taken fifteen tablets at a time, “it has the same effect as an overdose of a mphetamine. It can

be an irritant to the hea

rt and se t up card iac arr hyt hmia -- in other wo rds, irregular hea

rtbeat. It ca

n also be very stimulating to the c entral nervous sy stem of the braincausing the person to act in an irrational manner, to have hallucinations or to see things or fe el things that aren’t there.”

Elton Douglas, one of the Defendant’s jailers, testified on behalf of the Defendant. H e explained that the Defendant was on suicide watch for five day s after his arrest. During this time, the Defendant was confused and eng aged in incoherent mumbling, refusing regular conversation. When asked to compare the Defendant’s beha vior during h is first mon

th in jail to the several months preceding trial, Mr. Douglas stated, “[I]f I was to ask him a question [recently], he would ans wer it; where then, if I wa s talking to him, there was no reply or no thought process involved.”
Clyde William Keenan of the Memphis Police Department also testified on behalf of the Defend ant. He had supervised the Defendant for approximately two y ears. When called to the scene, he found the Defendant ly ing in the back of the squad car, “half wa y on the seat and ha

lf way into the floorboard.” When the Defendant sat up, Keenan testifie d, he had

a “wild lo ok about h

im” and was sweating profusely . The Defendant asked Keenan, “ [W]hat’s going on?” and stated , “[E]verything

is breaking up.” Keenan testified that he concluded at the time that the Defendant had “comple tely snapped” and wa s mentally ill. He told

the sher iff’s de puties at t he scene that “[t]his young man is ove

r the edg e.” He a

lso testified that, at the time, the Defendant had not been c apable of conse nting to a DUI test.

TedHansom, th

e Defe ndant’s f irst attor ney , testified th at he sa

w the Defendant when the officers initially

brough t him into the

station. H e st ated tha

t th e Defe

ndant wa s “unable

to communicate,” “not coherent,” and “not oriented.” He testified that the Defendant had been “unable to understand what was going on.”

INEFFECTIVE ASSISTA NCE OF C OUNSEL The Defendant’s primary complaint about hi s trial lawyers is that they failed to put on adequa te proof about his mental state at the time he killed his wife. He contends that, had they put3 At the ti me the Defendant shot an d kill ed Michelle, fir st degr ee premedit ated murder required that the ki lling

be done intenti onally and with premeditation and delib eratio n. See Tenn. Cod e Ann. § 39-13-202 (a)(1) (Supp. 1994).

4 At the ti me the De fenda nt killed M ichelle, insa nity was an abso lute de fense to a crime if “ at the ti me of [the crime], as a result of mental disease o r defect, the perso n lacked sub stantial capacity either to appre ciate the wrongfulness of the person’ s conduct or to confor m that conduct to th e requir ements of the l aw.” Tenn. Code Ann. § 39-11-501(a) (19 91)

. See also Stat e v. Jacks on , 890 S.W .2d 4 36, 4 40 ( Te nn. 19 94)

.

5 The introd uction of this type of evidence is freque ntly misch aracte rized as a “d iminishe d cap acity de fense.” See Stat e v. Phipps , 883 S.W .2d 138, 143 (Tenn. Crim. App. 199 4).
-8- on physical evidenc e and expert testimony

about the effec ts of ephedrine, he

would hav e been a

ble to success fully

defeat the State ’s proof

that he ki lled his wi fe with premeditation and deliberation. 3

To sustain

a petition for post-conviction relief, a defendant must prove his or her factual allegations by clear

and convincing evidence at an evidentiary

hearing. See Tenn. Code Ann. § 40- 30-210(f); Momon v. Stat e , 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not reweigh or reevaluate the evidence be low; all questions concerning the credibility of witnesses, the weight and value to be given their testimony , and the factual issues raised by the evidence are to be resolvedby the trial

judge, not the appellate courts. See Momon , 18 S.W.3d at 156; Henley v. State , 960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judg e’s findi ngs of f act on a p etition fo

r postconviction rel ief are

afford ed the we ight of a jury verdict and are conclusi ve on app eal unle ss th e evidence preponderates against those finding s. See Momon , 18 S.W.3d at 156; Henley , 960 S.W.2d at 578-79.

The State soug

ht the dea th penalt y in this case. Accordingly , the Defendant was represented at trial by two lawy

ers, Edward Witt Chandler and Wayne Emmons. Mr. Chandler has been licensed since 1967, pra

cticing primaril y in criminal defense. He testified at the post-conviction hearing that he has handled m ore than one hundred murder trials and numerous dea th penalty case s. Mr. Emmons has been

license d since 19 70 and als o focuses on criminal defense. He, too, had handled capital c ases pri or to the D efenda nt’s.

Both lawyers testi fied tha

t they wanted to

pursue a defense of insan ity

4 and to introduce evidence that

the Defendant lacked

the specific intent necessary to commit premeditated murder, 5 based on the Defendant’s cy cle of drug and alcohol abuse. When they filed the ir notice to do so, the trial court ordered the Defendant to submit to an evaluation by Dr. L ynn Za ger. On trial counsel’s advice, the Defendant refused to submit to this evaluation. As a result, the trial court ruled that the Defendant could put

on no expert proof concerning his mental state at the time of his wife’ s death.

At the post-conviction hearing, the Defendant testified

that at the time he killed his wife, he
was taking thirty to forty

ephedrine tablets a day , followed by six Sominex tabl ets and up to a fifth of alcohol to sleep. Dr. Jonatha n Lipman, a ne

urophar macologist, testif

ied that o ne of the

effec ts of chron ic abuse of ephed rine is “p aranoia . The indiv idual star ts to hallucinate . . . [and does not]-9-

know that [he is] hallucinating. [The individual] actually hea r[s] . . . voices. Typically the voices
come from a place that

you can’t see . . . for

instance , behind a

door; or y

ou hear i tthrough a wall.” Dr. Lipman testified that the sy ndrome resembled “a form of the endog enous condi tion called schizophrenia. And peopl e in this co ndition be come very fr ightened. They

believe that

people are plotting against the m. Th ey h ave the delusion of persecution. They don’t sleep because the drug keeps them awake.”

Dr. Lipman tes tified th at the amount of ephedrine the Defendant wa s taking was “a ridiculously-larg e dose.” Dr. Lipman wa s able to confirm the dosage consumed by the Defendant by analyzing the e

phedrine content

of a sample of the Defendant’s hair. The ana lysis revealed tha

t the Defendant had a

record high lev el of eph

edrine in his sy stem at the time he killed Miche

lle: so high that “the lab ha[d] never seen anything

like it.” Combining ephedrine with alcohol, according to Dr. Lipman, “can ha

ve the unfortunate e ffec t of unleashing [the user’s] response to [the]
unreaso nable

fear [ar ising fr om the eph

edrine- induced p aranoia

].” Dr. L ipman also

testifie d that six Sominex tablets a night was a “crazy ” dose.

When Dr. Lipman was asked if , in his expe

rt opinion , the Def

endant w as, at the

time he shot his wife, ab le to form

the menta

l culpabi lity

required to commit

premeditated

murder, Dr. Lipman replied, “I be lieve he wasn’t in such a state of clear consciousness that he could have been considered culpable.”

Dr. Pamela Auble, a psyc

hologist, also testifiedat the post-con viction he aring. She met wit h andevaluated the Defendant in the fall of 1999, and r eviewed documents prepared by Dr. Lipman. She was provided with informationabout the Defendant’s use of ephedrine, alcohol and Sominex in conjunction with her evaluation . She foun d that there was “significant” alcohol a buse and ephedrine abuse starting in the early 1990s and escalating up until the t i me of the killing. She t estified that the c ombined us e of ephedrine, a lcohol and Sominex “w ith [the Defendant ’s] persona lity and the f actors g oing on a

t the time, would

have affected his functioning.” One of the “factors,” she explained , was slee p depriva tion, which agg

ravate d the Def

endant’ s “impair

ments in reasoning and judgment and impulse co ntrol.” Additional f actors c ausin g psy cholog ical stre ss includedthe Defendant’s difficult marriage , his dislike of his job, and a house t hat the Defe ndant
was working on at the time. Dr. Auble testified that, in her professional opinion, the Defendant was notcapable of forming the intent required for premeditated murder due to his chronic mental disease

.
Mr. Chandler, one of the Defendant’s two trial lawyer s, testified that he advised the Defendant

not to talk to Dr. Zager beca use he was convi nced that she would testify that the Defendant

had no mental illness or disease, that he knew what he was doing when he shot Michelle, andthat he was able to control his behavior. One of the reasons for Mr. Chandler’s decision was that Dr. Zager and

the prosecutor were “big pe rsonal buddies,” and he believed that Dr. Za ger would find whatever the prosecutor wa

nted her to find wit

h respect to the Defendant’s mental state. Mr. Chandler explained that he kne w Dr. Zager “ f rom a number of cases” and felt that she wa s “extreme ly biased against defendants.” Mr. Chandler testified that Dr. Zager’ s anticipated testimony that the Defe ndant was sane woul d cause t hem to lose

“the bes t defens e [they

had]” and

“would6 At the time th e D efend ant was tried, the S tate was requ ired to pro ve a d efend ant’s sanity b eyon d a re ason able

doubt upon the defen dan t add ucing p roo f that he wa s insane at the time of the cr ime. See State v. Jacks on , 890 S. W.2d 436, 440 (T enn. 1994). The D efendant’s l awyers’ t rial st rategy was t o put on sufficient lay p roo f of the D efend ant’s insanity to sh ift the burd en of p roo f to the Sta te to pr ove his sanity.
-10- knock out the defense.” Mr. Chandler stated that he did not think that Dr. L ipman’s te stimony

would
overcom e Dr. Zager’s a

nticipated testimony, and for that r eason, he decided

that the bette r stra tegy
was to argue to the trial judge at the close of the State’s proof that the State did not carry its burden of proving the Defendant sane. 6 Mr. Chandler testified that, in his experience, jurors do not like the insanity defense. Accordingly , he stated, he “was try ing to win the case with thetrial judge.” Mr. Chandler stated that

he “wasabsolutely c onvinced ” that the y w ere going to cr

eate an issue o f sanity withtheir lay

witnesse s. In hindsight, Mr. Chandler admitted, his advice to the Defendant reg arding Dr. Zage r might ha

ve been a mistake . Howeve

r, he als o testified that “there wa sn’t any doubt in [his] mind at the time [they] were doing the right thing.”

Mr. Emmons also t estified th at the trial strategy

was to put on sufficient lay pr oof of the Defendant’s insanity to shift the burden of proving the Defendant’s sanity

to the State. He explained that they had three

very strong

lay witnesses with which to ac complish this goal.

At the close of the State’s proof at the Defendant’ s trial, Mr. Chandler moved to acquit the Defendant

of first d

egree premeditated mur

der on the

ground s tha t the State had not adduced sufficient proof that the Defendant had killed Michelle with premeditation and deliberation, and on the grounds that the State had “failed to prove sanity sufficient enough to send the case to the jury .” The trial court overruled the motion.

Both the Sixth Ame

ndment to th

e United S ta tes Constitution and Article I, § 9 of the Tennessee Constitution guarantee a defendant the ri ght to representation by counsel. See State v. Burns , 6 S.W.3d 453, 461 (Ten n. 1999); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Th is right to counsel includes the right to effective coun sel. See Strickland v. Washington , 466 U.S. 668, 686 ( 1984); Burns , 6 S.W.3d at 461; Baxter , 523 S.W.2d at 936

.
To determine whether counsel provided effective as si stance at trial, the court must decide whether counsel’s performance was withi n the range of c ompetenc e demand ed of att orney s in criminal cases. See Baxter , 523 S.W.2d at 936; Hicks v. St ate , 983 S.W.2d 2

40, 245 (Tenn. Crim. App. 1998). To succeed

on a claim that his or her counsel was ineffective a t trial, a defendant

bears the burden of showing that counsel made error s so serious that he or she was not fun ction ing as counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the defendant resulting in a failure to produce a reliable result. Se e Strickland , 466 U.S. at 687 ; Burns , 6 S.W.3d at 461; Hicks , 983 S.W.2d at 245. To satisf y th e second prong, the defe

ndant must show a reasonable probability that, but for counsel’s unreasonable error, the fact finder

would have hadreasona

ble doubt r

egard ing the d efenda nt’s g uilt. See Strickland , 466 U.S. a t 694-95. T

his
reasona ble probabil

ity m ust be “sufficient to undermine confidence in the outcome.” Id. at 694; see-11-

also Harris v. State , 875 S.W.2d 6 62, 665 (Tenn. 1994 ); Owens v. State , 13 S.W.3d 742, 750 (Tenn. Crim. App. 1999).

When reviewing trial counsel’s actions, this Court should not use the benefit of hindsig

ht to second- guess trial strategy and criticize counsel’s tactics. See Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982); Owens , 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they
were ma de in light of all facts and circumstances. See Strickland , 466 U.S. a t 690; Hicks , 983 S.W.2d at 246.

In its order denying

post-conviction relief, the tri al courtstated, “It is this Court’s opinion that the explanations set forth by Mr. Chandler a nd Mr. Emmons are very

plausible anddemonstr

ate that they provided outstanding representation to Mr. Roe both before and during his trial. . . . [T]he representationprovide d by Mr. Cha ndler and Mr. Emmons was professional and appropriate in eve ry regard. . . . I

t is this Cour

t’s opinion

th at the petitioner in this cause received outstanding representation in every

regard by his trial counsel.”

This Cour t has carefully

reviewed the transcripts of both the trial and the post-convict io n hearin g. There is no doubt that the Defendant’s trial lawy ers provide d him with rea sonable and competent

repres entatio n. Ther e is also n o doubt tha t the Def endant’ s trial la

wy ers delib erately chose a course of action which precluded their putting on the witness stand two very pow erful expert witnesse s. Defens e counse l had a ve ry difficul t tactica l decision to make abo

ut how bes tto present the Defendant’s defense of insanity and evidence of his diminished capacity to form the required
mens rea of premeditation and deliberation. In hindsight, Mr. Chandler admitted that perhaps they chose the wron g alter

native. H owever , hindsig ht is not the

proper l ens thorough which to view a claim of ineffective assistance of counsel. The De fendant’s trial lawyers made a strategic decision after a thoroug

h investig ation into t

he fact s and leg al theor

ies, and afte

r repea ted pret rial eff orts to maintain their defense

while avoiding an evaluation by Dr. Zager. “The fa ct tha t a part icula r stra tegy
or tacticfailed o

r hurt the defense , does not, standing alone, establish unreasonable repre sentation.” Goadv. State, 938 S.W.2d 363, 369 (Tenn. 1996). While the Defendant and his trial lawyers may wish that they had chos en a diff

erent c ourse of

action f ollo wi ng the D efenda

nt’s conviction, thi s Courtis notinclined t

o criticiz e strategic trial decisions made in conjunction with the level of leg al sk ill brought to bear in t

his case . To do so w ould be to c all into que stion almos t every strategic decision made on behalf of criminal defendants in this state. Post-conviction relief on the basis of ineffectiveassistance of counsel is aimed at addressing incompete nt representation; no t representationthat

simply fails to defeat the State’s case. I n short, the Defendant has failed to prove by clear an d convincing evidence that his trial lawy ers’ performance fell below the sta ndard of compete nce dema nded by our const itutions. Accordingly , this issue is without me

rit.

The Defendant raises as a separa te issue that his trial lawyers w ere ineffective “ for not developing physical

evidence to support the abuse of ephedrine with a ha ir sample.” The Defendant argues that his hair sample was not tested for ephedrine until after his trial, and that his attor ney s erred in not having it analyzed be fore trial. However, such evidence would have req uire d expert testimonyfor its introduction and explana tion. Suc h expert testimony was precluded by the trial7 At the post -con vict ion h eari ng, the witness iden ti fi ed hi msel f as Tracey Johns on. For reas ons wh ich are n ot clear fro m the re cord , M r. Joh nson is referre d to b y the pa rties as T racey G ossett.

8 For the sam e reas ons, w e reje ct the D efend ant’s co ntention that his atto rneys we re ineff ective fo r not introducing int o proof the receipt s fr om the Defendant ’s s hopping trip and dinn er wit h Michelle the ni ght bef ore her death.
-12- court’s pretrial order and, given that we have concluded that the Defenda nt’s trial lawyer s were not ineffectivein pu rsuin g the st rategy that resulted in that order, we further conclude that they

were not ineffective in failing to perform scientific te sts that they knew they would not b e able

to introduce at trial. Accordingly , this issue is without merit.

The De fendant also contends that his trial lawyers were ineffective in allowing one of hi s jailers to sit on the jury. When asked about this decision, Mr. Chandler testified that he “knew it was a little bizarre” to have one of the Defendant’s ja ilers on the jury, but he explained that they hada “world-famous” jury

consultant who advised keeping that particular juror. Mr. Chandler testified that , al though the Defendant objected to keeping this juror, he decided to follow the consultant’s advice. Mr. Emmons also testified that, based on the co nsultant’s advice, that juror was not challenged.
Again, decisions regarding jury challenges are tactica

l decisions notsubject to being secondguesse d by

this Court. This claim of ineff ective r eprese ntation is a

lso without

merit.

The De fe nd an t a ls o c om pl ai ns th at hi s t ri al at to rn eys did not ca ll witnesses James Hughes andTracey

Johnson 7 at trial. Hughes testified at the post-conviction hearing, stating that he ha d seen Michelle on the evening before her de ath; that he saw no bruises on her face; and that she and the Defendant

plannedto spend that evening together shopping a nd attending the Defendant’s birthday pa rt y. Tracey

Johnson was one of the Defendant’s fellow officer s and had known the Defendant since high school. He testified at the post-conviction hearing about the Defendant’s heavy ephedrine
use.

Mr. Chandler testified that he did not call these witnesses because of c once rn about their
cr ed ib il it y. He also stated that he didn’t think Sgt. Johnson “painted[the Defe ndant] as a really

nice guy.” Mr. Emmo ns testified that he didn’t think Hughes’s testimony would have assisted the defense.

The Defend ant’s att

orney s’ decisions not to call these witnesses were made after r eviewing their proposed testimony and af ter making a reasona ble, info rmed judg

ment call that these witnesses would not be beneficial to the defe nse. This C ourt will n ot second -guessthese str ategic decision s. This issue

is without me

rit. 8

OTHER ALLEGATIONS In addition to claiming that he was denied the effective a ssistance of counsel, the Defendant contends that he wa s denied d ue proce ss becau se one of his jailers sat on the jury. L arry Collins, one of the deput

y ja ilers whe re the De fendant was housed pre-tr

ial, testi fie d at the pos t-conviction-13-

hearing that he had seen the Defendant in jail prior to serving a s one of the Defendant’s jurors. Mr. Collins stated that he worked on the floor where the Defendant was housed “a couple of times.” He also stated tha

t his havin g seen the D efendant in jail factored into his verdict “[s]omewhat.” However, Mr. Collins also testified that he listened to and looked at all the evidence and followed his oath as juror. Mr. Collins disclosed his status as one of the Defendant’s jailers during voir dire

.
We disagr

ee with the Defendant

that Mr. Collins’ service as one of his jurors violated his due processrights. Although Mr. Collins testifie d that his prior co ntact wit h the Def endant a ffecte d his verdict “somewh at,” the

record does not r

eflect in what wa

y hi s verdic t was affected. Def ense counsel hoped that Mr. Collins would prove a sympathetic juror because the Defendant had bee n on suicide wat ch f or s eve ral days whi le i n j ail . In deed, we may speculate that Mr. Collins was more reluctant to convict the Defendant than other jurors just as readily a s we may spec ulate that he was
more prone to c onvict the Defend ant. Howe

ver, thisCourt can

not find a constituti onal vio latio n basedon speculation. It is the Defenda nt’s burden to prove his allegations by clear and convincing evidence. The Defendant has not done so. Nor has he cited this Court to any r ule of law holding that
a jailer subsequently serving

as a juror is, per se , a due pr ocess vio lation. Ac cordingly, we find th is issue to be

without me

rit.

Fi na ll y, the Defendant argues that the State c ommitted prosecutorial misconduct during his tr ial. He f

irst contends that the State improperly a rgued “missing witnesses” during c losing argume nt; that is, the State posed the rhetorical question, “What witness -- not lawyer -- what witness testified to what psychosis even is, let along tha t the def en da nt h ad one ? -- wh at

wit ne ss? ” However, this issue could have be

en raised on direct appeal . Accor dingly , th is is sue has been waived. See Tenn. Code Ann. § 40-30-206(g).

The Defend ant also c ontends th at the Sta te committed prosecutorial mi sconduc t w hen i t failedto divulg e to him pri or to tria l that Mich

elle’s pa rents hadsigned a movie contract concerning the ca se . T he De fe nd an t c la im s t ha t t hi s i nf or ma ti on wa s e xc ul pa to ry and should ha ve been disc losed pursuant to Brady v. Maryland , 373 U.S. 8 3 (1963). The Def endant a rgues t hat su c h information provedbias on the part of Michelle ’s mother , who testi fied at tr ial, and t herefo re would have been useful in cross-examination.

We acknowledge, of course, that the pr osecution is requ ired to disclose to a criminal defendant evidence which is favorable and mater ial to his or her guilt, including evidence which may be used to impeach the State’s witnesses. See ge nerally , i d. , 373 U.S. a

t 87; Johnson v. Sta

te , 38 S.W.3d 52, 55-56 (Tenn. 2001). To establish a Brady violation, an aggrieved defe ndant must prove four things: (1) that he or shereq uested the informa tion (unle ss the info

rmation isobviously exculpatory

— in which case the State must disclose it whether requested or not); (2) that the State suppressedthe information; (3) that the information was favorable to the defendant; and (4) that the information was material. See Johnson , 38 S.W.3d at 56.
Here, the Defendant testified that he beca me aware that Michelle’s parents had signed a moviecontract after r

eviewing a copy of the dis tr ict at torney ’s file in conjunct ion with fi ling his-14-

post-conviction petition. No copy of any document from the district attorney ’s file was introduced in support of

this allegation. Even accepting this testimony at face value, however, the De fendant’s claim of a Brady

violation fails because the information does not meet the definition of “material.”

Under Brady , withheld

evidenc e is mater

ial “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been dif ferent.” United States v. Bagley , 473 U.S. 667, 682 (1985). Here, the “withheld” evidence c ould have been used to impeach Michelle ’s mot her. However, Michelle’s mother was not a ke y witness to the prosecution, and her b ias was a lready establish ed by her rel ationship

to the vic ti m. Furthe rmore, altho ugh Mr. Chandler testified that the information would have been “grea t cross examination,” we failto see how

it would ha

ve helpe d the Def

endant’ s case

even if Michelle’ s mother’ s credib ility had been complete

ly d estroy ed at tria l. Her te stimony

was simply

not that important to the State’s case. Accord ingly , this issue

is without me

rit.

In summ ary, the De fendan t has f ailed to pro ve his allega tio ns by clear and convincing evidence, and we therefore affirm the judgment of the trial court.

___________________________________ DAVID H. WEL

LES, JUDGE