# FILED

December 2, 1996 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

FOR PUBLICA TION WILLIAM W ESLEY GOAD, ) Filed: December 2, 1996 ) Appellant, ) ) SUMNER CRIMINAL ) Vs. ) ) HON. FRED A. KELLY, II I, ) JUDGE STATE OF TENNESSEE, ) ) Appellee. ) No. 01-S-01-9509-CR-001 69

For Appellant: For Appellee: Paul J. Morrow, Jr. Charles W. Burson Nashville, Tennessee Attorney General and Repor ter Louis W. Oliver, III John P. Cauley Hendersonville, Tennessee Assistant Attorney Gener al Nashville, Tennessee Lawrence Ray Whitley District Attorney General Gallatin, Tennessee



## O P I N I O N

REVERSED AND REMANDED. ANDERSON, J.1 The sta tute has n ow bee n am ended to say: (g)(1) If the jury unanim ously deter mine s that: (A) At l east one (1) st atutory aggravati ng circumstance or several st

atutory aggravati ng circumstances have been pr oven by the st

ate beyond a r

easonable doubt;and (B) Such circumstance or circumstances have been pr oven by the state to outwei gh any miti gating ci rcumstances beyond a reason able dou bt; then the sent

ence shall be

death. Tenn. Code A nn. § 39-13-204(g)(1) (1996).
-2- The primary issue in thi s appeal is whether the petitioner, William Wesley Goad, was afforded his constitutional right to effective as sistance of counsel at the sentencing phase of his capital trial.

The Tennessee death penalty statute, Tenn. Code Ann. § 39-2-203, requires at the sentencing phase of a capital trial that the jury weigh statutory aggravating ci rcumstances against statut ory and other mitigati ng circumstances. If the mitigating circumstances do not outweigh the aggravating ci rcumstances 1 , the jury must return the death penalty.

In this case, the State reli ed on and proved one aggra vating circumstance, Tenn. Code Ann. § 39- 2-203(i)(2)(1982), co nviction of one or more felonies involvin g violence or the thr eat of violence. The defense mitig ation theory at sentencing was that Goad's experience in Vietnam had drastically changed him from a model citizen to a violent, mentally ill criminal. The only proof, however, that w

as introduced to support this marked change was that of Goad's parents and two hig h school friends. The record es tablishes that trial counsel failed to produce an av ailable expert witness to introduce proof that Goad had been diagnosed with a mental illness -- post- traumatic stress disorde r-3- -- arising out of his harrowing Vietnam military service experience and his wife's infidelity while he served there.

Under these circumstances, the standards for effective assis tance of counsel requir ed in the United States S upreme Court cas e of Stricklan d v. Washington , 4 66

U. S. 66 8, 10 4 S .Ct. 20 52 , 8 0 L .E d. 2d 67 4 ( 19 84 ), ap pl y. We conclude that defense counsel was ineffe ctive in failing to present the available expert mitigating evidence of mental illness which would have substantially strengthened the mitigation case of the defe nse. That ineffectiveness undermines our confidence in the outcome of the penalty proceeding. As a result, there is a reason able probability that the result of the sentencing hear ing would have been different but for c ounsel's ineffectiveness. We reverse the Court of Criminal Appeals' judgment denying post-conviction relief, v acate the petitioner's death sentence, and remand the case to the trial c ourt for a new sentencing hea ring.

BACKGROUND A. Sentencing Hearing The petitioner w

as conv icted of first-degree murder i n the per petrati on of a robbery and sentenced to death b y electrocution. See State v. Goad , 707 S.W.2d 846 (Tenn . 1986). The only aggravating circumstance found by the jury was that in Tenn. Code Ann. § 39- 2-203(i)(2)(1982), “

the defendant was previously conv

icted of one or more felonies, other than the present charge, which involved the use or threat of violenc e to the person.” The proof presented at the sentencing hearing at trial was summariz

ed by this Court in its opinion on direct appeal.-4- Appellant was about 35 ye ars of age at the time of the trial . He had be en reared in Maury Cou nty, Tennessee, and had entered military service shortly after his graduation from hig h school in Mount Pleasant. He served for about two years in the ar med services, one portion being in Europe and the other in Vietnam. After his return from ser vice he had been married three times. He w as shown to have been subject to drug abuse to some extent, had been convicted of six major

felonies and had been incarcerated for some time as a result of these convictions. He had no hi story of mental illness or of treatment for drug abuse. He w as evaluated prior to trial at a state mental health facility and found to be competent to stand trial. No plea of insanity was interposed, nor was ther e any specific claim of diminished mental capacity . At the sentencing hearing, however, it was contended that his personality had “chang ed” since his return from military service,and apparentl y his career of crime and poor citizenship was attributed to his military experiences.
Goad , 707 S.W.2d at 848. As the summary reflects, the defense attempted to establish at the sentencing hearing that Goad had been a model citizen until he served in Vietnam. Goad’s parents testified that Goad had a “typical” childhood. He made good grades, attended church, and graduated from high schoo l. Shortly after his graduation in 1967, Goad enlisted in the U.S. Army and eventually served in Vietnam. Goad’s parents related the drastic changes they noticed in Goa d’s behavior upon his return home from Vietnam. He was “alt ogether different,” acted “nervous,” and appear ed to be involved with drugs. Similarl y, two of Goad’s high school friends testified that Goad was a pass ive, non-violent per son while in high school

.
During the sentencing hearing, petitioner’s counsel requested that the court adjourn early at 5:45 p.m. one day so that Dr. Oakley Ray of the Veterans Administration Mental Heal th Section could testify the next morning. Counsel-5- said that Dr. Ray had bee n out of town for two week s and would be availabl e the next day. The State requ ested an offer of proof. In response, defense counse l stated that Dr. Ray had “spent some time” with the petitioner, was “an expert in the field of post-traumatic stress syndrome,” and would testify abou t how Goad’s experiences in Vietnam had affected h is mental health. The trial c ourt denied the request for an early adjournment, stating that it “wouldn’t allow

that testimony at the sentence hearing.” Id . at 852. The sentencing hearin g proceeded, and the jury returned a v

erdict of death.

B. Direct Appeal On direct appeal, Justice Harbison of this Court found f ault with counsel’s failure to present a more detailed offe r of proof and with the trial court’s premature refusal to admit Ray’s testimony in his opinion. This Court, however, declined to order a new s entencing hearing without further development of the record. Accordingly, the case was remanded by this Court for a trial court hearing in which defense counsel were to be given an opportunity to establish that they had contacted Dr. Ray and arranged for his appearance at the sentencing hearing. If counsel could not so demonstrate, th en the sentence would not be disturbed; if counsel could establish Dr. Ray’s availability, then his testimony was to be pr esented. If Dr. Ray’s te stimony “credibly

tend[ed] to establish that [petitioner] suffered f rom post-traumatic stress syndrome in February 1983,” then the death sentence was to be vac ated and a new sentencing hearing held. Id . at 854.-6- C. Trial Court Remand Hearing At the trial court remand hear ing, one of the petitioner’s attorneys, John Pellegrin, submitted affidav its detailing his cont

acts with Dr. Ray

prior to trial and his effort to obtain Dr. Ray’s testimony for the sentencing hearing. Pellegrin maintained that it was his understanding that Ray would be available to testify at the sentencing hearing about Goad’s post-traumatic stress symptoms. Pellegrin also asserted that he had lear ned after trial for the first ti me that Goad had actually been evaluated by Dr. Sam Pieper, Jr. , acting chief of the Veterans Administration Psychia tric Service, and not Dr. Ray, and that Pieper had completed an evaluation report on November 22, 1983, several mon ths before trial.

Neither Pieper nor Ray were subpoenaed by the defense t o testify at the remand h earing, n or was Piep er's repo rt introd uced into evidence . Ray, however, told an inv

estigator for the Distr

ict Attorney General and one of the petitioner’s attorneys that he had never been contacted abou t testifying in Goad’s case, that he was not an expert in the area of post-traumatic stress syndro me, and t hat he ha d never examin ed the pe

titione r. Based on that proof, the trial court concluded that trial counsel “w ere not actually prepar

ed to offer the testimony of Dr. Ray and that Dr. Ray was

not prepared to testify that the defendant suffered from post-traumatic stres s syndrome.” This Cour t affirmed the trial court’s re fusal to grant a new sentencing he aring.2 There is no expl anation i n the record f or the lo ng delay bef

ore the post- convicti on hearing and no a pparen t effort by the trial c ourt, the S tate, or the d efense to exped ite the hear ing. As a result o

f similar and other probl ems, this Court a ppointed a Post -Convicti on Study Comm ission i n 1991 which recommended to the Legi slature r eforms in the post-convict ion process. As an outgrowth of t his report , legi slati on was adopted which treats t he issue of prom ptne ss in h earin g pos t-con viction petitio ns. In addit ion, s ince 1993 , in ca pital c ase s, this Court requi res monthly pr ogress reports from the tri al courts.

-7- D. Post-Conviction Action Thereafter, Goad filed this post-con viction action in 1987 2 , alleging
numerou s grounds for relie f. He asse rted tha t he had b een deni ed the ef fective assistance of counsel at the sentencing phase of his trial due to counsel’s failures to introduce mitigation evidence about his post-traumat ic stress disorder, his prior drug abuse and treatment, and his prior head i njury. A post-conv iction evidentiary hearing

was held in 1993.

Both of Goad’s trial attorneys, John Pellegrin and John W esley Jones, testified at the post-convi ction hearing. Pelleg rin said that he had been lic ensed to practice law in October of 1980, a little more than three years before his appointment to this case. Although he had tried “nume rous” criminal cases, this was his first death penalty case. Jones testified that he began to practice law in 1971. He had tried approximately twelve first-degree murder cases, but, like Pellegrin, this w

as his first capital case

.
Pellegrin testified that he learned of Dr. Ray prior to trial from the Public Defender’s Office in Davidson County, which w as representing Goad on separate charges. After speak ing with Ray, Pellegrin discussed th e evaluation by the Veterans Administr ation with Goad, and he reviewed materials on posttraumatic stress syndr

ome that he had received at a death penalty seminar. Pellegrin, however, did not subpoena Dr. Ray and did nothing else to assure Ray’s attendance at trial.3 As n oted , cou nse l had a sse rted d uring the re ma nd he aring that h e belie ved R ay wo uld be at the sent

encing heari ng. Alt hough the post- convicti on court di d not resol ve this appa rent conflict in the t estimony, i

t is not material t

o our disposition of the case.

4 It was also after trial that the petitioner info rme d coun sel that he would rec eive disab ility compe nsation as a result of the post-traumatic stress disorder.

5 As n oted , Pelle grin te stified that h e did n ot kn ow o f Piep er’s r epo rt until a fter th e trial. The p ost-con viction cou rt mad e no findin gs with reg ard to the a pparen t conflict in testim ony as to when counsel lea rned that Pi eper had conducted t he evaluati on of Goad. -8- Shortly before trial, Pel legrin once again cal led Ray’s office only to discover that the doctor was out of town for two weeks and would not return until the time the sentencing heari ng began. Again, no subpoena was issued. At the beginning of the sentencing hearing, Pellegrin spoke with Dr. Ray for a third time. Ray, however, informed Pellegrin that he was very busy and “couldn’t make it” to court. When Pellegrin ask ed if Ray could make an offer of proof “maybe the next day,”

Ray replied that he coul d not. 3 According to Pellegrin, it was only after trial

that he discovered that D r. Ray was not the pe rson who had evaluated the petitioner. 4 Likewise, it w as after trial that Pelleg rin said he received a copy of a repor t that had been prepared on Nove mber 22, 1983, by Dr. Pieper. Pellegr

in conceded that he never subpo enaed Ray for the sentencing hea ring.

Co-counsel Jones testified that the defen se had received a copy of Dr. Pieper’s evaluation before trial, but said he did not attempt to speak with Dr. Pieper because Pellegrin was responsible for the sentencing portion of the trial. 5 Jones testified that the defense had inten ded to call Dr. Ray a s a witness at the sentencing hearing to tes tify about the results of the ev aluation, and had planned to introd uce the e valuatio n as a busi ness reco rd through Dr. Ray’s te stimony, since they believed he

was the supervisi ng psychiatrist. Jones conceded that the defense did not subpoena Ray for the trial. Af ter the trial court summarily ruled Dr. Ray’s te

stimony inadmissible, th e defense did not attempt to call any other witness to testify about post-traumatic stress disorder.-9- In addition, both Pellegri n and Jones admitted that they di d not issue a subpoena for either Ray or Pieper to testify at the hearing on remand. Pellegrin explained that he did not issue a subpoena on remand because Dr. Ray “simply did not recall talking” with him, and that he di d not have Dr. Pieper sub poenaed for the remand hearing because he believed “the issue was more narrowly defined on remand.”

Dr. Sam Pieper’s report detailing his evaluation of Goad, which apparently was conducted to establis h a service-related d isability for the Veter ans Administration, was i ntroduced at the post-convi ction hearing. It recou nted several traumatic epis

odes related by the petiti oner: He reports several combat incidents which were stressful to him. H e and his company had to do "night patrol" about once every three months which meant going outside their perimeter and standing night watch every

night for a week. They came under fire several times. He participated in several "fire fights" during the day w hen his outfit would be attacke d while stri nging tele phone lin es. Two incidents stand out. One day an enemy bullet hit his spike causing him to fall fr om [a] pole. He refused to climb again. Instead, a fri end climbed the pole [and] was hit by a bullet.His friend reached out for a w ire, caught a high v

oltage wire a nd was b urned "i n a puff of smoke." He came off the pole "like a kit e flying into the ground. His fingers were left burned onto the wire." In another fire fight he and his buddies were pinned down for 15-20 minutes by enemy fire. He heard a rifle shot, thought he felt mud being splattered on his face. When the fighting w as over he discovered his friend had been shot through the head and it was his buddy’ s brains he had on his face.

. . . . Mr. Goad and his first w ife began going together in the 9th grade in high school and continued to go together whil e he was stationed in Ger many. On his leave between pos ts in Germany and Viet Nam he returned home and was mar ried. After he had been in Viet Nam about two o r three months he receiv ed a lett er from h is mothe r sayi ng that his wife had "moved out" and was "runnin g around with-10- another man." This made Mr. Goad very angry. He began to have an affair with a Vietnamese girl. One night when he was at

her home they suddenly got word that the Viet Cong was coming. He hid in a small cellar under the ki tchen table. The Viet Cong came in and questioned his g irlfriend and her mother. They laid his girlfriend's mother on the kitchen table and tortured her, killi ng her by eviscer ating her. They then lay his girlfriend on the table and eviscer ated her. He was very

frightened and felt very helpless. Although there was an es cape route from the cellar via a tunnel he was afrai d to use it.

The report, which Jones described as a “two-edged sword,” also contained potentially prejudicial information about th e petitioner, such as his pride in using drugs, his frequenting prostitutes, and his violent reaction to his wife’s infidelity. Nonetheless, it concluded with Dr. Pieper’s impressions:

This ve teran does exhi bit the s ymptoms

of posttraumatic stress disorde r . While some of the precipitating stress

does appear to be combat related, by far the most striking and stressful events rel ate to his behavior in respons e to his wife’s reported infidelity. He exhibits some charact eristics of antisocial personality disorder, of avoidant personality disorder, and borderline personality disorder but does not clearly meet the crit

eria for any one personalit y disorde r, so th e diagn osis of Mixed Personality Disorder is made. He is considered to be competent for VA purposes.

Dr. Robert Begtrup, a ps ychiatrist, also tes

tified at the post-conviction hearing. He related his experience and his familiarity with post-traumatic stress symptoms. Although he nev er personally eval uated or tested Goad, Begtrup reviewed Pieper’s report and concluded that it contained “catastrophic events.” Begtrup said that nothing in the report contradicted a diagnosis of post-trau matic stress disorder, but that independent verification of the events would be helpful.6 W e also gran ted th e pet itione r an a ppe al on th e que stion of wh ethe r he w as de nied h is right t o a meaningful appel late rev iew because thi s Court, i n conducting i ts proport ionality rev iew on direct a ppeal, co nsidere d an agg ravating c ircum stance that was not foun d by the jury. Because we conclude that the peti tioner is entit led to a new sent encing heari ng, it

is not necessary tha

t we address this issue. -11- As noted, Goad also claimed that his counsel were ineffe ctive because they failed to investigate his drug abuse, his participation in a substance abuse treatment program whil e at DeBerry Correc tional Institute, and his pr ior head injury. Pellegr

in and Jones testified that they had not sought to obtain recor ds about Goad’s prison experi ence because “it couldn’t hav e curried much favor with the jury.” Counsel admitted that they did not request Goad’s medic al records, and that they w ere unaware of a gunshot w ound he had received about thirteen years before tri al. A review of the medi cal records established that the shotgun wound to the left si de of Goad’s head did not penetrate his skull. The wound, which was

sustained in 1971, requir ed only outpatient treatment.

After considering the evidence, the trial court found that trial counse l’s performance was neither defici ent nor prejudicial and deni ed Goad’s petition for post-conviction reli ef. The Court of Criminal Appeals affirmed. We granted Goad a limited 6 appeal to consider whether the evidence preponderates against the lower courts’ findi ngs. For the reasons ar ticulated below, we reverse.-12- INEFFECTIVE A

SSISTANCE OF C

OUNSEL We review this claim of ineffective as sistance of counsel at a capital sentencing tri al under

the famil iar sta ndards o f Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975) and Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establis h ineffective assistance of counsel , the petitioner bears the burden of pr oving both that counsel’ s performance was deficient and that the deficiency prejudiced the defense. Strickland , 466 U.S. at 687, 104 S.Ct. at 2064; Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State 789 S.W.2d 898, 899 (Tenn. 1990).

Under Baxter , counsel is effective if the adv ice given or the ser

vices rendered are within the range of competence demanded of attorneys in criminal
cases. Id ., 523 S.W.2d at 936; see also Campbell v. State , 904 S.W.2d 594, 596 (Tenn. 1995). In this reg ard, the Court in Baxter said: [T]he assistance of counsel req uired under the Sixth Amendment is counsel reasonably likely to render and rendering reasonably effective assistance. It is a violation of this standard for defense counsel to deprive a criminal defendant of a substantial def ense by his own ineffective ness or incompetence.... Defense counsel must perform at least as well as a lawyer with o rdinary training and skill in the crimi nal law and must conscientiously protect his client’s interests, undeflected by conflicting considerations

.... Defense counsel must investigate all apparently substantial defenses availabl e to the defendant and must assert them in a proper and timely manner

.

Baxter , 523 S.W.2d at 936 (quoting, Beasley v. United St ates , 491 F.2d 687 (6th Cir. 1974)(emphasis added)) . To prove a deficiency, therefore, the petitioner must show that counsel’s acts or omissions wer e so serious as to fall below an objective standard of reasonab leness under prevaili ng professional norms. Strickland , 466 U.S. at 688, 104 S.Ct. at 2065 ; Baxter , 523 S.W.2d at 936.-13- In revi ewing

counsel ’s condu ct under the facts

and cir cumstan ces of a case, a “fair assessment ... r equires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumsta nces of counsel’s challenged conduct, and to ev aluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S.Ct. at 2065 ; see also Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982) (counsel’s conduct will not be measured by “20-20 hindsight”). The fact that a particular strat egy or tactic failed or

hurt the defense, does not, standing alone, es tablish unreasonable repres entation. However, deference to matte rs of strategy and tacti cal choices applies only if the choices are informed ones based upon adequate preparation. Hellard , 629 S.W.2d at 9; Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Courts are “particular

ly cautious in preser

ving a defendant’s rig ht to counsel at a capital sentencing hearing.” Deutscher v. Whitley , 884 F.2d 1152, 1160 (9th Cir. 1989); Cooper v. State , 847 S.W.2d at 529. The Eighth and Fourteenth Amendments to the United St ates Constitution mandate that a death sentence be based on a “particul arized consideration of r elevant aspects of the character and record of each ... defendan t.” Woodson v. North Carolina , 428 U.S. 280, 96 S.Ct. 2978, 2991, 49 L.E d. 2d 944 (1976). In this res pect, “evidence about the defendant’s background and character is relevant because of the belief ... that defendants who commit criminal acts that are at tributable to a disadvantaged background, or to emotional and mental prob lems may be less culpable than defendants who have no such excuse.” Californ ia v. Brown , 479 U.S. 538, 107 S.Ct. 837, 841, 93 L.Ed .2d 934 (1987). Thus, although there is no requirement that defense counsel present mitigating ev idence in the penalty phase of a capital trial, couns el’s duty to investigate and prepare for a capital trial encompasses both the guilt and s entencing phases. State v. Melson , 772 S.W.2d 417, 421 (Tenn. 1989); see Bertolotti v. Dugger , 883 F.2d 1503, 1516-14- (11th Cir. 1989)(“g reater duty of inquiry into a client’s mental health imposed for the penalty phase of a trial.” ); Kubat v. Thieret , 867 F.2d 351, 369 (7th Cir. 1991), cert

. denied sub nom ., Kubat v. Greer , 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989)(“counsel may not treat the sentencing phas e as nothing more than a mere postscript to the trial.”).

To establish that a deficiency resulted in prejudice, a petitione r “must show that there is a rea sonable probability that,but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reaso nable probability is a probability sufficient to undermine confidence in the outcome.” Strickland , 466 U.S. at 694, 104 S.Ct. at 2068 . When challenging a death sentence, a petitioner must show that “there is a reasonabl e probability that, absent the errors, the sentenc er . . . would have c

oncluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland , 466 U.S. at 695, 104 S.Ct. at 2069.

Because a petitioner must establ ish both prongs of the test, a fail ure to prove either deficiency

or prejudice provide

s a sufficient basis to deny r elief on the ineffective assistance cl aim. Indeed, a court need not addres s the components in any particul ar order or even addres s both if the defendant makes an insufficient showing of one c omponent. Strickland , 466 U.S. at 697, 104 S.Ct. at 2069.

Applying the foregoing

standards, we conclude that the evidence in the record preponderates again st the lower courts’ findings that petitioner w as afforded effective assistance of counsel. The evidence shows that c ounsel failed to adequately investigate and explore miti gating evidence rel ative to the Veteran Administration's evaluation of Goad and his symptoms of post-traumatic stress-15- disorder. Counsel w

ere aware that the evi dence existed prior to t rial, and they intended to call Dr. Ray during the sentencing ph ase. Pellegrin spoke w ith Ray before and during the sentencing hearing. Although Pellegrin, the least experienced of the two, had prima ry responsibility fo r the sentencin g hearing, Jones testified at the post-conviction hearing that they planned to ad mit Pieper's report at sentencing thro ugh Dr. Ray’s tes timony as a business rec ord, even though it was a "two-edged sword." Neither Pellegrin nor Jones, however, issued a subpoena for Ray. Moreover, counsel’s failure to adequately investigate and prepar

e this area of mitigation r esulted in the failure to locat e or subpoena Dr. Pieper, the author of the report. Consequently, the jury heard no expert proof about Goad’s sy mptoms of post-traumatic stress disorder, and counsel were not prepared to make an offer of proof when the trial court summarily and incorrec tly ruled the evidenc

e of post-traumatic stress di sorder inadmissible a t sentencing.

The errors were compounded w hen counsel failed to issue subpoena s for Dr. Pieper and Dr. Ray to testify at the trial court remand hearing ordered by this Court after the first appeal. Pel legrin said that “by the time we got the remand, [Dr. Ray] simply sa id he was no t willin g to testify

and didn’t r

ecall talk ing to me and those kinds of things.” As to counsel’s failure to call Dr. Pieper, Pellegrin said, “I didn’t have Dr. Pieper there. I think at that time I did know Dr. Pieper’s work with Mr. G oad and d id have som e of his re cords. Bu t as I said before, we didn’t have him there to make an offer of proof because it was my und erstanding the issue was more narr owly defined on remand than w hat we could come up with.”

Although trial counsel’ s admitted and stated theory of defense at the sentencing hearing w

as to establish that Goad’s Vietnam experiences had-16- drastica lly changed his chara cter and b ehavior, t hey faile d to subp oena obj ective expert witnesses to

testify on the issue, both at trial and at the remand heari ng. Contrary to the State’s assertion, it is clear from counsel’s testimony that their failure to subpoena those witnesses was not a tactical decision; it was a mistake - a grievous err

or. Moreover, counsel ’s decision before the remand hear ing to forego issuing a subpoena for either Dr. Ray or Dr. Pieper and presenting their testimony as an offer of proof cannot be char acterized as reasonable or effective. On the contrary , it is unreasonable and ineffectiv e. At that point in the proceedings, the defense had ev erything to gain and nothing to lose by attempting to present these w itnesses. Indeed, the potential benefit was a new sentencing hearing.

Accordingly, w

e conclude that counsel’s fail ure to investigate, ex plore, and prepare this mitigating

evidence and to subpoena Dr.Ray and Dr. Pieper i n an effort to introduce expert proof of post -traumatic stress disor

der was not “the result of reasonable professional judgment” and “fell outside the wide range of professionally competent ass istance.” According ly, petitioner has established that counsel’s performance, as i t related to the presentation of evidence of posttraumat ic stre

ss syn drome, w

as deficient und er the s tandard s of Strickland

.

PREJUDICE Having so concluded, w e must next determine wheth er the petitioner has proven there is a reasonable probability that, abs ent the error, the sentencer would have concluded that the balance of aggravati ng and mitigating circumstances did not w arrant death. In evaluati ng whether a petitioner has discharged the burden of establi shing prejudice, a cour t must consider the totality of the evidence before the judge o r jury. Some of the factual findings wil l have been unaffected by the-17- errors, and factual findings that were affected will h ave been affected in different ways. Some erro rs will have h ad a perva sive effect on the inferences to be drawn from the evidence, altering the entire evidentiary

picture, and some will

have had an isolated, tri vial effect

. . . . Strickland , 466 U.S. at 696-97, 104 S.Ct. at 2069 (emphasis add ed).

Where the alleged prejudice und er Strickland involves counsel’ s failure to present mitigating evidence in the penalty phase of a capital trial, several factors are significant. Fir

st, courts have analy

zed the nature and extent of the mitigating evidence

that was available but not presented. Deutscher v. Whitley , 946 F.2d 1443 (9th Cir. 1991); Stephens v.Kemp , 846 F.2d 642 (11th Cir. 1988); Cooper v. State , 847 S.W.2d at 532; Atkins v. State , 911 S.W.2d 334 (Tenn. Crim. App. 1995). Second, cour ts have considered wh ether substantially si milar mitigating evidence was presented to the jury in either the guilt or penalty phase of the proceedings. Atkins v. Singletary , 965 F.2d 952 (11th Cir. 1992) ; Clozza v. Murray , 913 F.2d 1092 (4th Cir. 1990) ; State v. Melson , 772 S.W.2d 417, 421 (Tenn. 1989). Finally, the courts have considered whether there was such strong evidence of agg ravating factors that th e mitigating evidenc e would not have affected the jury’s deter mination. Fitzgerald v. Thompson , 943 F.2d 463, 470 (4th Cir. 1991); Elledge v. Dugg er , 823 F.2d 1439 (11th Cir. 1987) . Applying these factors to the evidence in this case, we conclude that counsel’s deficiencies were prejudicial under Strickland

.
The defense presented lay testimony that, prior to his tour of duty in Vietnam in 1969, the petitioner had been an intelligent, normal and well-behaved young man. In 1970, he retur ned from Vietnam with an addicti on to drugs and a changed personality, and his troubles with the law began soon afterwar d. The testimony of relatives and friends, particularly that of Goad’s parents, supported-18- the defense theory that Goad’s ex periences in Vietnam “chang ed” him for the
worse.

The testimony, however, left open the question of exactl y what transpired in Vietnam and how the event s affected Goad. The objective, ex pert proof that was available to the defense but not produced, potentia lly addressed these questions and supplied a psy chological cause and effect betw een Vietnam and Goad’s later behavior. In Stephens v.Kemp , supra , a federal habeas corpus petitioner claimed that defense coun sel had been ineffective for failing to present expert testimony relating to his history of mental problems. The only witness in the penalty phase had been the petitioner’s mother. In conclu ding that counsel had been ineffective and that prejudi ce had been shown, the Court noted:

The resulting prejudice i s clear. The only testi mony the jury heard at sentencing concerning appellant’s mental history and condition, including the bizarre behavior he occasionall y exhibited, was

that presented by his mother. As her testimony makes clear, many others could have testified concerning his behavior; the fact that others did not do so undoubtedly diminished the impac t on the jury of the facts she described

.
846 F.2d at 653-54; see also Cooper v. State , 847 S.W.2d at 532 (citing Stephens ). Likewise, but for counsel’s deficiency, Dr. Pieper's and Dr. Ray’s testimony would have supplied expert psychological proof about Goad’s diagnosis of post-traumatic stress disorder, which this Court on direct review held to be relevant mitigati on evidence.

It is further apparent that counsel’s errors altered the entire evidentiary picture and had a pervasi ve effect on the inferences to be draw n from the-19- evidence. See Strickland , 466 U.S. at 696-97, 104 S.Ct. at 2069. Defense counsel’s summations to the jur y were illustr

ative of their own failur es: There’s no way in the w orld that we can tell y

ou exactly what happened over there. We don’t know. There’s no way we can really find out, but obviously there was some very

profound changes that he went through, and he’s not been the sa me since he got out of the service. Similarly, What we’re really saying in this particular ca

se is that Bill Goad, fo r whatev

er reasons,committed a c rime which there’s reall

y no sort of explanation for it in a way. We do know

one thing, that when he c ame back from Vietnam, he was a changed person, whether the drugs changed him, whether the fact that his wife went off and moved in with another man while he was over there chan ged him, whether it w as being away from home and in a foreig n country that changed him. There’s no wa y to say that.

Likewise, the prosecuti on’s summation exploited the fai lure of defense counsel to introduce the availabl e mitigating evidenc e: What has been shown to you, ladies and g entlemen of the jury, other than the fact that his attitude just changed over the year

s? They have not shown you anything that really happened to him when he was in Vietnam. The State reiterated this point in its final closing r emarks: We had testimony nowhere that Mr. Goad di d any fighting or shooting or

shot at or lost a buddy or anything that has been inti mated or hinted at; nothing whatsoever. If there w as any of that evidence, that would have come out because the Judge allowed, and properly so, very much leeway, great leeway, in the testimony of both Mr. and M rs. Goad, Sr. as to what their son had undergone. If he’d been undergoing any combat over there, gotten shell shocked and it had dramatically changed his personality, don’t y

ou know you would ha

ve heard it? But you didn’t hear that.-20- These arguments underscored the p rejudicial impact of counsel ’s errors. In Cooper v. State , supra , the Court of Criminal Appeal s addressed a similar situation in concluding that counsel’s deficiency had been prejudicial: “[T]he s tate strongly argued to

the jury at the penalty

phase that the petitioner had pr esented no credible evidence or documentation that he suffered from real emotion al problems. Yet, the recor d of the post-conviction ev identiary hearing r

eflects that substantial evidence corroborating the petitioner’s problems was readily available to be used.” Id ., 847 S.W.2d at 532.

Similarly, the failure

to present the available mitigating evidence had a direct relation to the si ngle aggravating factor found by the jury. The State presented proof that the petitioner had six prior convictions -- four for robb ery and assa ult with int ent to co mmit fir st degree murder, o ne for sim ple robbe ry, and one for armed robbery. Although this aggrav ating circumstance is often “more qualitatively

persuasive and objectiv ely reliable” than the

other circumstances provided for in the capital sentencing statute, State v. Howell , 868 S.W.2d 238, 261 (Tenn. 1993), its strength w ould have been mitigated by evidence of Goad’s post-trau matic stress syndrome, i nasmuch as all the offenses on which this agg ravating circumstan ce was based had occurred after Goad’s return from Vietnam. Indeed, even without this mitigating evidence, the jury reported to the tr

ial court they wer

e deadlocked on the question of punishment four hours after retiring to deliberate. Accordingly, def ense counsel's errors undermi ne our confidence in the outcome of the sent encing hearing and, therefore, there is a reasonable probability that, abse nt counsel’s error, the jury w

ould have concluded that the bal ance of aggravating and mitigating circumst

ances did not warrant death.7 State v. Goad , 707 S.W.2d at 854. -21- The trial court’s erroneous conclusion that the evidence was inadmissible at the initial sentencing hearing does not alter our findings that counsel were ineffective and that prejudice r esulted. Indeed, in this case it is crystal cl ear that counsel’s failure to properly investigate the evidence of post-traumatic stress disorder affect ed the res ult. In ligh t of this Court’s de cision on direct revi ew, Goad would have rec eived a new senten cing hearing without a remandhad counsel included Dr. Piepe r’s testimony in the r ecord on appeal as an offer of proof. Accordingly, but for counsel’s failure to ide ntify and subpoena Dr. Pieper to testify at the initial

sentencing hearing, Goad would have receiv

ed a new sentencing hearing in his first appeal.

Finally, there is a “reasonable probability ” that Goad would have r eceived a new sentencing hearing following the remand if counsel had subpoenae d Dr. Pieper and presented his testi mony as an offer of proof. Although the r emand named o nly Dr. Ray, t here is a re asonabl e probab ility that Goad would have received a new sentencing hearing had counsel presented some psychologi cal expert proof that “credibl y tend[ed] to establish that [petitioner] suffered from post-traumatic stress sy ndrome in February 1983.” 7 Counsel failed to subpoena either Dr. Ray or D r. Pieper or to present any evidence on that issue. N either the trial court nor this C

ourt was presented with any credible proof on th e issue, and had no reason to believe any such proof existed. Counsel ’s deficiencies, at the very least, deprived G oad of a new sente ncing hea ring in which he would ha ve been given the opportunity to present relevant miti gating evidence. Goad has established that he was not afforded his right to effective as sistance of counsel8 Because we have determined t hat thi s cause must be remanded for resentenci ng, Goad’s asserti ons that counsel were ineffective f

or fail ure to in vestigat e his drug abuse andprior head inju ry are m oot. -22- at the sentencing phase of his trial. Accordingly, Goad’s death sentence must be vacated and t he cause reman ded for a new sen tencing hearing. 8

CONCLUSION We have determined that the record preponderates against the lower courts’ f indings th at Goad wa s affor ded his co nstituti onal right to effe ctive assistan ce of cou nsel at th e senten cing phas e of his ca pital tria l. Accordi ngly, the judgment of the Court of Appeals affirmi ng the trial court’s denial of postconviction relief is reversed. Goad’s sentence of death is vacated and the cause remanded to the trial court for a new sentencing hearin g. Costs of this appeal are taxed to the State of Tennessee.

_____________________________ RILEY ANDERSON, Justice
CONCUR: Birch, C.J. Drowota and Reid, JJ. White, J., Not Participating