IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 20, 2002 Session

DONALD RAY MIDDLEBROOKS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 87-F-1682 Walter C. Kurtz, Judge

No. M2001-01865-CCA-R3-PD - Filed January 9, 2003

The petitioner has been sentenced to death and now appeals as of right the judgment of the Davidson

County Criminal Court denying his petition for post-conviction relief. The petitioner argues: (1) the

post-conviction court erred in denying his ex parte request for funds for expert services; (2) the postconviction court erred in denying his request for a continuance; and (3) he did not receive effective

assistance of counsel during his resentencing hearing. We affirm the judgment of the postconviction court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.

GLENN, JJ., joined.

Hershell D. Koger, Pulaski, Tennessee (at hearing and on appeal), and John E. Herbison, Nashville,

Tennessee (at hearing), for the appellant, Donald Ray Middlebrooks. 

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer

L. Smith, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and

John C. Zimmerman and Roger D. Moore, Assistant District Attorneys General, for the appellee,

State of Tennessee.

OPINION

The petitioner was convicted of the felony murder of fourteen-year-old Kerrick Majors and

was sentenced to death. The Tennessee Supreme Court affirmed the conviction, but remanded the

case for resentencing because one of the aggravating circumstances used to impose the death

penalty, the felony murder aggravating circumstance, was unconstitutional as applied to the

petitioner’s conviction. See State v. Middlebrooks, 840 S.W.2d 317, 346 (Tenn. 1992), cert.

dismissed, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed. 2d 555 (1993). At resentencing, the jury again

imposed the death penalty and the Tennessee Supreme Court affirmed the sentence. See State v.

Middlebrooks, 995 S.W.2d 550 (Tenn. 1999). The petitioner filed a timely petition for post-
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conviction relief, alleging his counsel at resentencing was ineffective. Following a hearing, the

Davidson County Criminal Court denied the petition. This appeal followed. 

BACKGROUND

The following facts presented at the petitioner’s resentencing hearing are set out in the

opinion of the Tennessee Supreme Court which affirmed the petitioner’s death sentence:

On the day of the murder, April 26, 1987, Donald Ray

Middlebrooks, a twenty-four-year-old white male, his wife, Tammy

Middlebrooks, a seventeen-year-old white female, and their friend

Roger Brewington, a sixteen-year-old white male, had set up a

make-shift flea market in East Nashville. When Kerrick Majors, the

fourteen-year-old black male victim, and four of his friends walked

over and began looking at the items on the table, Tammy

Middlebrooks yelled “Hey, ya’ll niggers leave our stuff alone.”

Donald Middlebrooks and Brewington chased after Majors

and the other boys. Shannon Stewart testified that as he fled from the

scene, he saw Brewington grab Majors and drag him toward the

table, where Middlebrooks struck Majors in the face and knocked

him down. Stewart heard Middlebrooks order Majors to “shut up

nigger.” The boys who made it to safety told Majors’ mother what

had happened. Majors’ mother called the police and also searched

for her son. The next day Majors’ naked body was found lying face

up in a dry creek bed under a foam mattress in the woods near the

area where Majors had been abducted. 

Bruises, scrapes, abrasions, and burns covered Major’s body.

A woven belt was strapped around his left wrist. A large laceration

was sliced across his right wrist. Two large lacerations made by a

sharp instrument formed an “X” across his chest. A bloody and

swollen gash was above his left eye. His nose was bloody, red, badly

burned, and had pieces of skin missing. His lips were swollen and

lacerated, and the inside of his mouth was bloody and lacerated. His

testicles were badly swollen, and his legs were covered in blood

down to his feet. There was urine on different parts of his body and

on a rag tied in a tight knot around his neck that had been used as a

gag in his mouth. A bloody stick lay next to his head. Finally, there

were two deep stab wounds in his chest a couple of inches apart.

The autopsy indicated that the cause of death was a stab

wound to the chest and that the murder weapon had been plunged to

a depth of 3.3 inches. The “X” carved into Majors’ chest was
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inflicted before the stab wounds, and at least one of the stab wounds

was made prior to his death. Majors was alive and conscious

throughout the infliction of the injuries and wounds. Majors lived a

minimum of five to six minutes and a maximum of thirty minutes

from the time of the stab wounds. He also would have been

conscious part of the time while bleeding to death after being

stabbed. 

Two days after the murder, Brewington voluntarily notified

the police that Donald Middlebrooks and Tammy Middlebrooks were

involved in the murder. He showed the officers a bloodstained knife

with a brass knuckle handle that had been used on Majors.

Brewington also told the officers where to find Middlebrooks and his

wife. 

After being arrested, Middlebrooks gave a video-taped

confession to the police in which he admitted his own involvement

but described Brewington as the leader. According to Middlebrooks,

after dragging Majors into the woods, Brewington tied Majors’ hands

and then slapped him, beat him with brass knuckles, urinated in his

mouth, and made him swallow. Middlebrooks said that Brewington

also beat Majors’ testicles, threatened to cut “it” open, beat his mouth

and tongue with a stick, and stuck a stick in Majors’ anus. Whenever

Majors resisted or screamed, Brewington continued to beat and slap

him. Brewington told Majors he was taking him “back to the days of

Roots.” Brewington “dropped” the knife repeatedly on top of

Majors, gagged him, and slashed his wrist. Middlebrooks stated that

Tammy Middlebrooks also slapped Majors and burned his nose with

a cigarette lighter.

Middlebrooks said that Majors was crying and begging them

to stop. When Majors pleaded that all he wanted to do was to “go to

school and get an education,” Brewington replied “F--- you, nigger.”

Middlebrooks also said that Majors’ cries were getting on his nerves

so he asked Brewington to stop. According to Middlebrooks,

Brewington then kissed Majors on the forehead and told him that it

was “the kiss of death.” 

In the video-taped confession, Middlebrooks admitted

stabbing Majors once and striking him across his legs with a switch.

Middlebrooks explained that both he and Brewington stabbed Majors

once. In a prior statement, however, Middlebrooks claimed to have

inflicted both stab wounds. He also claimed he did not stop the

torture because he was afraid of Brewington and is “scared to fight.”
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At another point, Middlebrooks contended that he stabbed Majors to

prove he was “cooler” than Brewington. 

According to the State’s proof, fourteen-year-old Majors was

small for his age. He was described as a good student who loved

school. He was not a violent person, nor did he carry a weapon.

Since his murder, his mother’s health has deteriorated. She has been

on medication and will not leave the house except for doctor

appointments. She has had a nervous breakdown, suffers from panic

attacks, and has not been able to sleep at night since the murder.

Majors’ older brother blames himself for Majors’ death and now

suffers from mood swings. 

 

Shannon Stewart testified that he had spoken with

Middlebrooks the morning of the murder. Middlebrooks had told

Stewart that he was a member of the KKK, that he “hated niggers,”

and that he punched a black man just for saying hello. Stewart also

testified that he overheard Middlebrooks order Majors to “shut up

nigger.” 

The defense introduced mitigation evidence as follows:

Middlebrooks’ cousins, James and Carol Sue Little, and his

half-sister, Sharon Fuchs, testified about Middlebrooks’ childhood.

Middlebrooks grew up in Texas. His father died when he was four.

His mother remarried and had another child, Ms. Fuchs, before she

again divorced. Middlebrooks’ mother either left the children at

night with relatives or else would take them to bars with her. 

According to the proof, Middlebrooks’ mother would often

bring men to the house, and the children sometimes heard or saw

their mother having sex. Ms. Fuchs testified that sometimes these

men would molest her while her mother watched. She further

testified that she, Middlebrooks, and other children in the family

were molested by different family members. For example,

Middlebrooks was often left alone with a male relative who had

sexually abused him, and Middlebrooks’ mother would grab him

between his legs and also watch him use the bathroom. According

to Sharon Fuchs, the small town in which they grew up lacked

counseling services or social service agencies where they could seek

help for sexual abuse. According to her, no one in the family ever

discussed or admitted the family's problems.

The proof further indicated that Middlebrooks was often

angry and got into trouble. He was sent to a Methodist Home for

Children in Waco for two years. Later, he was twice sent to prison.
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Between prison stays, Middlebrooks started to have seizures. On one

occasion he climbed a water tower and threatened to commit suicide.

He was hospitalized more than once at a mental institution.

A psychologist, Dr. Jeffrey L. Smalldon, performed

neuropsychological and psychological evaluations of Middlebrooks.

From these evaluations, interviews, testing, and prior education and

medical records, Smalldon concluded that Middlebrooks has a severe

borderline personality disorder. Middlebrooks exhibited several

characteristics of the disorder including inconsistent behavior,

instability of mood, a marked identity disturbance, impulsive and

reckless behavior, poor anger control, and recurring suicidal or

self-destructive acts. Smalldon testified that the documents from

other mental health professionals who have evaluated Middlebrooks

indicate that he suffers from substance abuse, psychotic personality

disorder, and schizophrenia. Middlebrooks also suffers a mild degree

of organic brain impairment which causes him to be more impulsive

and less able to delay his responses. Finally, Smalldon testified that

Middlebrooks has also exhibited characteristics of adults who were

sexually abused as children. 

During cross-examination, Dr. Smalldon admitted that

Middlebrooks confessed to a greater involvement in Majors’ death

than he had in the video-taped confession. For instance, Smalldon

disclosed that Middlebrooks admitted to him that it was his idea to

hold Majors for ransom, that he helped tie Majors up, and that he

urinated on Majors. In an attempt to resolve the discrepancies

between the video-taped confession to the police and the confession

made to him in the interview, Smalldon explained that Middlebrooks

is a chronic liar. Dr. Smalldon conceded that Middlebrooks had

never expressed any remorse to him. Smalldon agreed that there

were some indications in the medical records of Middlebrooks’

malingering, but testified that these indications were not inconsistent

with mental illness.

In rebuttal, the State introduced the testimony of two experts

indicating that Middlebrooks was exaggerating his mental illness

symptoms, that he was competent to stand trial, that he did not have

a defense of insanity, and that he was not committable. One expert

testified that he could not say whether Middlebrooks was mentally ill.

The other expert testified that he made no finding of mental illness

and did not consider a personality disorder to be a mental illness. 

After considering the evidence, the jury concluded that the

aggravating factor set forth in Tenn. Code Ann. § 39-2-203(i)(5), that
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the murder was “especially heinous, atrocious, or cruel in that it

involved torture or depravity of mind,” outweighed the evidence of

mitigating factors. Accordingly, the jury sentenced Middlebrooks to

death for the murder of Kerrick Majors. 

Middlebrooks, 995 S.W.2d at 553-56 (footnotes omitted).

PROOF PRESENTED AT POST-CONVICTION HEARING

At the post-conviction hearing, attorney David Stebbins testified he initially worked on the

petitioner’s case while it was before the United States Supreme Court on appeal. When the United

States Supreme Court dismissed the appeal, Stebbins and two of the attorneys who represented the

petitioner during his initial trial, Richard McGee and Lionel Barrett, agreed to represent the

petitioner at resentencing.

Stebbins stated he was primarily responsible for the investigation and presentation of

mitigation evidence at resentencing. Stebbins said he met often with the petitioner, reviewed the

records from the petitioner’s first trial, collected records and investigated the petitioner’s

background in preparation for resentencing. Stebbins testified they hired a mitigation specialist to

investigate the petitioner’s background.

Stebbins said the defense team had two theories at resentencing: (1) the petitioner was the

“lesser player” in committing the offense in comparison to co-defendant Roger Brewington; and (2)

the petitioner had “a bizarre childhood with a history of mental illness.” Stebbins testified the

defense team reviewed the transcript of Roger Brewington’s trial and other documents and

interviewed people who knew Brewington. Stebbins stated the only proof presented at resentencing

which supported the theory that Brewington was more active in the offense than the petitioner was

the petitioner’s statements, in which the petitioner indicated he was afraid of Brewington and

participated because Brewington threatened him. Stebbins said the defense team decided to limit

the amount of proof they presented regarding Brewington because they were concerned that if they

“came after Brewington too hard,” the state would present Brewington’s testimony at the hearing.

Stebbins testified they were aware Brewington had given a statement to the police in which he

blamed the petitioner for the offense. In his statement, Brewington said the petitioner told the victim

to remove his clothes, indicated they were going to have to kill the victim, and stabbed the victim

twice.

Stebbins said he was aware Brewington was larger than the petitioner and appeared to be far

older than his actual age of sixteen at the time of the offense. Stebbins testified he was aware of

information contained in a psychological report on Brewington. The report indicated Brewington

had poor impulse control; unsocialized, aggressive behavior; impoverished moral reasoning; and

was extremely self-centered. Stebbins stated he was unsure whether he reviewed Brewington’s

presentence report but was generally familiar with information contained in the report. Stebbins

testified he was not aware the state submitted in the presentence report that Brewington’s sentence

should be enhanced because he was “a leader in the commission of the offense.” Stebbins stated he
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had reviewed documents belonging to Brewington, which included racist writings and drawings and

an oath to serve the devil. Stebbins stated he had not seen certain documents relating to

Brewington’s social history, including medical records, court documents concerning his legal

custody, and certain psychological reports. 

Stebbins testified that prior to the testimony of defense expert Dr. Jeffery Smalldon at

resentencing, he was unaware of any evidence indicating the petitioner urinated on the victim.

Stebbins said he recommended hiring Dr. Smalldon because Dr. Smalldon had testified in a number

of capital sentencing hearings and had a reputation for being competent. Stebbins testified he spoke

with Dr. Smalldon a number of times in preparation for the petitioner’s resentencing hearing, and

they had at least four or five lengthy discussions. Stebbins stated he and Dr. Smalldon had detailed

discussions regarding what the petitioner told Dr. Smalldon about the offense, but that Dr. Smalldon

never advised him of the petitioner’s statement that he urinated on the victim. Stebbins testified that

if he had known the petitioner made such a statement, it would have been a factor in deciding

whether to present Dr. Smalldon’s testimony; however, Stebbins could not say it would have

changed their decision to proceed with Dr. Smalldon’s testimony. 

Stebbins said he was unaware of any discrepancy between Dr. Smalldon’s handwritten notes

and his typed summary of those notes prior to Dr. Smalldon’s testimony. Stebbins said Dr.

Smalldon’s recitation of the petitioner’s statements to him concerning the offense did not vary from

the version of the events the petitioner had communicated to Stebbins. 

Stebbins said the defense began its proof with testimony from the petitioner’s relatives

concerning his childhood and personal history. According to Stebbins, that testimony went well.

Stebbins testified he and co-counsel McGee briefly discussed whether they would present Dr.

Smalldon’s testimony and made a joint decision to proceed with the psychologist’s testimony.

Stebbins opined Dr. Smalldon’s testimony “probably put the jury to sleep” and was unsure whether

it carried much weight. Stebbins further stated the expert’s testimony introduced to the jury the

petitioner’s statement that he urinated on the victim, which was harmful. 

 Prior to the resentencing hearing, two assistant district attorneys traveled to Ohio to

interview Dr. Smalldon. Their interview was taped. Stebbins stated he was aware of the interview,

but did not attend. According to Stebbins, Dr. Smalldon later debriefed him regarding the interview.

Stebbins sent a letter to co-counsel in which he discussed Dr. Smalldon’s meeting with the

prosecutors, advised them the interview was taped, asked if the defense team should obtain a copy

of the tape, and indicated they should review Dr. Smalldon’s notes regarding the state’s interview

for potential weaknesses in his testimony. Stebbins testified he did not receive a copy of the tape

and was not aware the tape was transcribed. The transcript of the tape revealed that Dr. Smalldon

told the prosecutors the petitioner said he and Brewington urinated on the victim. 

 

Stebbins testified that, prior to resentencing, the state received a copy of Dr. Smalldon’s

handwritten notes taken during his meetings with the petitioner along with Dr. Smalldon’s summary

of the notes. Stebbins indicated he did not notice a reference in the notes to the petitioner’s

statement that he urinated on the victim. 
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Another member of the defense team, attorney Lionel Barrett, testified at the post-conviction

hearing that he reviewed Brewington’s criminal court file and discussed the case with Brewington’s

attorney. Barrett opined that the petitioner’s proof at resentencing went well until Dr. Smalldon

testified. According to Barrett, the prosecutor did an excellent job of portraying Dr. Smalldon as

a “hired gun.” Barrett also indicated Dr. Smalldon’s testimony regarding the petitioner’s statement

that he urinated on the victim was harmful, but that it was the cumulative effect of Dr. Smalldon’s

testimony that was detrimental. Barrett opined that he and co-counsel McGee were deficient in not

properly investigating Dr. Smalldon’s qualifications. 

Clinical psychologist Dr. Jay David Woodman testified as a defense expert at the petitioner’s

first trial but not at the resentencing hearing. He testified at the post-conviction hearing that he

interviewed Roger Brewington and reviewed some of Brewington’s medical records, psychological

reports, presentence report, and other records. Dr. Woodman opined that Brewington would have

been more dominant and more inclined to be a leader than the petitioner. Further, Dr. Woodman

testified it was possible Brewington sat back and allowed the petitioner to torture and kill the victim,

and that the petitioner could have committed the offense without the help or encouragement of

Brewington. 

Dr. Woodman stated that prior to resentencing, he was contacted by someone from the

petitioner’s defense team seeking to review his data, which he made available. Dr. Woodman also

said that when he interviewed Brewington in preparation for the post-conviction hearing,

Brewington indicated he was unwilling to cooperate until the petitioner admitted he stabbed the

victim. According to Dr. Woodman, Brewington stated the petitioner stabbed the victim, and the

petitioner was the primary assailant who “did all of what was horrible.”

POST-CONVICTION COURT’S FINDINGS

Following the post-conviction hearing, the post-conviction court entered a detailed, thirtypage order in which it found, “Trial counsel should have done a much better job in showing the jury

that [the petitioner] was entitled to the statutory mitigating circumstance set forth at T.C.A. § 39-13-

204(j)(6) in that [the petitioner] acted ‘under the substantial domination of another person,’” and,

therefore, violated reasonable standards by failing to properly investigate co-defendant

Brewington’s background. The post-conviction court stated that documents produced at the postconviction hearing depicted Brewington as “an aggressive and intelligent individual with a

dominating personality;” counsel was aware of a psychological report on Brewington, but unaware

of Brewington’s presentence report in which the state submitted Brewington was a leader in the

commission of the offense; counsel did not consider presenting expert testimony to compare the

personalities of the petitioner and Brewington; and counsel should have known about additional

information regarding Brewington’s aggressive personality. According to the post-conviction court,

trial counsel’s decision to bypass a strong pursuit of the theory that Brewington was the dominant

actor was not an informed decision. 

 

Further, the lower court found that during the interview between the prosecutors and Dr.

Smalldon, Dr. Smalldon revealed the petitioner’s statement that he had urinated on the victim, that
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neither the petitioner nor Dr. Smalldon had shared this information with trial counsel, and that trial

counsel was surprised by this information during Dr. Smalldon’s testimony. The post-conviction

court also found attorney Stebbins spent considerable time interviewing Dr. Smalldon, reasonably

believed he was thoroughly familiar with Dr. Smalldon’s knowledge of the petitioner, and was not

at fault for failing to know about the petitioner’s statement. The lower court held trial counsel did

not violate reasonable standards in presenting Dr. Smalldon’s testimony, and that counsel’s failure

to review the tape of the state’s interview with Dr. Smalldon and Dr. Smalldon’s notes did not

violate reasonable standards. The post-conviction court also found counsel was not at fault for the

state’s effective impeachment of Dr. Smalldon as a “hired gun” nor with inconsistencies between

his written notes and the summary of those notes. Thus, the post-conviction court found no

deficiency by trial counsel with regard to Dr. Smalldon. 

 

Despite the post-conviction court’s finding that trial counsel’s performance was deficient in

failing to properly investigate information that Brewington was the dominant offender, the lower

court found the petitioner failed to prove there was a reasonable probability the outcome at trial

would have been different but for counsel’s deficiency. According to the post-conviction court, the

“written word fails to convey the senselessness and horror of this crime” in which the twenty-fouryear-old petitioner and two juveniles subjected the fourteen-year-old victim to torture over a period

of several hours before killing him. The lower court stated the petitioner’s confession described the

“horrible details” of the crime. It found the petitioner’s best mitigating evidence, his impoverished

background and his suffering repeated childhood sexual abuse and neglect, were well presented to

the jury through the testimony of family members. It further found that even if evidence of

Brewington’s dominance were added, the impact of this mitigation evidence would never overcome

the torture of the victim, and the outcome at trial would have been no different.

I. FUNDS FOR EXPERT SERVICES

In an ex parte proceeding approximately two months prior to the post-conviction relief

hearing, the petitioner moved the post-conviction court for funds to hire a neurological radiologist

to conduct tests on the petitioner. During the hearing, post-conviction counsel explained that the

petitioner had been stabbed in the head with an ice pick years prior to the offense. According to

post-conviction counsel, trial counsel was aware of the injury and Dr. Smalldon testified about it,

but no tests were performed to confirm the petitioner suffered from organic brain damage. The

neurological radiologist informed post-conviction counsel that an MRI could detect such brain

damage and, if damage were detected, a PET scan would also be necessary. The post-conviction

court denied the petitioner’s motion because Dr. Smalldon testified at the resentencing hearing that

the petitioner had organic brain damage, and the petitioner had not met his burden of showing the

need for expert services. The petitioner contends the trial court abused its discretion in denying his

request. 

Our review of the record from the resentencing hearing reveals Dr. Smalldon indeed stated

the petitioner suffered from organic brain damage and had a mild degree of functional brain

impairment which affected his language skills.
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A post-conviction court may in its discretion grant an indigent petitioner’s ex parte request

for funds for expert services to ensure the petitioner’s constitutional rights are protected. Owens v.

State, 908 S.W.2d 923, 928 (Tenn. 1995). Before the post-conviction court may authorize the funds,

the petitioner must demonstrate the expert services are necessary to protect his constitutional rights

by showing the services are required to establish a ground for post-conviction relief, and that he is

unable to establish that ground by other available evidence. Id.

We conclude the post-conviction court did not abuse its discretion in denying the petitioner’s

motion for funds to hire a neurological radiologist. The record shows the proof presented by the

petitioner at resentencing established the petitioner had organic brain damage. The petitioner failed

to prove the expert’s services were necessary for establishing a ground for post-conviction relief;

more specifically, he failed to establish that services of the expert were required to prove trial

counsel was ineffective for failing to seek funds to hire a neurological radiologist or to conduct an

MRI and/or PET scan upon the petitioner prior to resentencing. 

 

II. CONTINUANCE

The petitioner moved the post-conviction court to continue the post-conviction hearing

because post-conviction counsel needed additional time to complete its investigation into Roger

Brewington’s background. Prior to the start of the hearing, the post-conviction court stated it would

reserve its ruling on the motion until after it heard the available proof. After hearing the proof, the

court determined post-conviction counsel already had presented sufficient information regarding

Brewington’s relatively dominant personality and denied the petitioner’s motion for a continuance.

The petitioner argues the trial court erred in denying his request for a continuance to allow him

additional time to develop proof.

A trial court is vested with the discretion to grant or deny a continuance. State v. Morgan,

825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). This court will not disturb the denial of a

continuance unless it appears that the lower court abused its discretion, and the movant was

prejudiced as a result. State v. Cazes, 875 S.W.2d 253, 261 (Tenn. 1994), cert. denied, 513 U.S.

1086, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995). In the instant case, the post-conviction court did

not abuse its discretion in denying the continuance. We further note the post-conviction court found

trial counsel’s performance deficient with regard to the Brewington issue. The petitioner suffered

no prejudice. This issue is without merit.

 

III. INEFFECTIVE ASSISTANCE OF COUNSEL

The final issue presented in this appeal is whether trial counsel was deficient at the

petitioner’s resentencing hearing and, if so, whether it affected the jury’s verdict. The state

maintains the post-conviction court erred in finding trial counsel was deficient for failing to further

investigate and present proof regarding the relative dominance of Roger Brewington. The petitioner

contends the lower court correctly found deficiency, but erred in concluding trial counsel’s

deficiency did not affect the outcome at resentencing. Further, the petitioner challenges the postconviction court’s determination that trial counsel’s preparation for Dr. Smalldon’s testimony did

not violate reasonable standards. 
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A. Standard of Review

For a petitioner to successfully overturn a jury’s verdict based on ineffective assistance of

counsel, the petitioner must first establish that the services rendered or the advice given was below

“the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an

adverse effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984). Should the petitioner fail to establish either factor, the petitioner is not

entitled to relief. Our supreme court described the standard of review as follows:

Because a petitioner must establish both prongs of the test, a

failure to prove either deficiency or prejudice provides a sufficient

basis to deny relief on the ineffective assistance claim. Indeed, a

court need not address the components in any particular order or even

address both if the defendant makes an insufficient showing of one

component. 

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697, 104 S. Ct. at

2069). The petitioner is not entitled to the benefit of hindsight; the petitioner may not second-guess

a reasonably based trial strategy; and the petitioner may not criticize a sound, but unsuccessful,

tactical decision made after adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347

(Tenn. Crim. App. 1994); see Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). 

Because the Eighth and Fourteenth Amendments to the United States Constitution require

that a death sentence be based on a particularized consideration of each defendant, the courts are

especially careful in protecting a defendant’s right to counsel at a capital sentencing hearing.

Nichols v. State, S.W.3d , , 2002 Tenn. LEXIS 419, at **49-50 (Tenn. Oct. 7, 2002).

Generally, trial counsel’s failure to investigate and prepare for a capital sentencing hearing is below

the range of competence required of criminal attorneys. Zagorski v. State, 983 S.W.2d 654, 657

(Tenn. 1998), cert. denied, 528 U.S. 829, 120 S. Ct. 83, 145 L. Ed. 2d 70 (1999). 

The petitioner bears the burden of proving his allegations by clear and convincing evidence.

Tenn. Code Ann. § 40-30-210(f). The findings of fact made by the post-conviction court are

conclusive and will not be disturbed unless the evidence contained in the record preponderates

against them. See Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001). 

 

B. Trial Counsel’s Failure to Investigate Relative Dominance Theory

The post-conviction court determined trial counsel’s performance in preparation for

resentencing was deficient because counsel failed to adequately investigate facts supporting the

theory that the petitioner’s co-defendant, Roger Brewington, was the dominant actor in the

commission of the murder. The state urges that the post-conviction court erred in making this

determination, while the petitioner maintains the post-conviction court’s determination of deficiency

was proper.
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Trial counsel must conduct appropriate factual investigations or make a reasonable decision

that makes particular investigations unnecessary. Nichols, S.W.3d at , 2002 Tenn. LEXIS 419,

at *17-18. In a capital trial, counsel’s duty to investigate and prepare extends to the sentencing

phase. Goad, 938 S.W.2d at 370. Informed choices and tactical decisions are entitled to deference

from the courts; however, uninformed decisions made without adequate preparation are not entitled

to deference. Id. at 369.

 In the instant case, the proof at the post-conviction hearing established that one of the

theories trial counsel pursued at resentencing was that Roger Brewington was the dominant actor

in comparison to the petitioner. There was evidence that trial counsel investigated Brewington’s

background and obtained some information, including information concerning Brewington’s

psychological evaluation. However, the proof at the hearing also showed trial counsel was not

aware of the state’s position that Brewington’s sentence should be enhanced because he was a leader

in the commission of the offense. Trial counsel had not reviewed some documents which, according

to psychologist Dr. Woodman, showed Brewington to have a more dominant personality than the

petitioner. Attorney Stebbins testified the defense team decided not to aggressively pursue the

theory that Brewington dominated the petitioner out of concern the state would present

Brewington’s testimony. There was proof at the hearing which clearly indicated Brewington’s

position was that the petitioner was primarily responsible for the torture and murder of the victim.

We question the trial court’s determination that counsel’s tactical decision was not an informed one

after an adequate investigation. However, because the petitioner has clearly failed to establish that

additional proof of Brewington’s more dominant personality would have affected the jury’s verdict,

it is not necessary for this court to address the deficiency prong. See Goad, 938 S.W.2d at 370. 

When a petitioner claims ineffective assistance of counsel during the penalty phase of a

capital case, he must show “there is a reasonable probability that, absent the errors, the sentencer

. . . would have concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Nichols, S.W.3d at , 2002 Tenn. LEXIS 419, at *50 (quoting Strickland, 466

U.S. at 695, 104 S. Ct. at 2069). In determining whether a defendant was prejudiced by counsel’s

failure to present sufficient mitigation evidence, the courts should consider several factors, including:

(1) the nature and extent of the available mitigating evidence that was not presented; (2) whether

substantially similar mitigating evidence was presented to the jury in either the guilt or penalty

phase; and (3) whether there was such strong evidence of aggravating factors that the mitigating

evidence would not have affected the jury’s determination. Id. at , 2002 Tenn. LEXIS 419, at *51;

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

In the case sub judice, co-defendant Brewington was sixteen years old at the time of the

murder. The resentencing jury heard the petitioner’s statement to police in which he maintained he

committed the offense out of fear of Brewington. Dr. Jeffery Smalldon also testified at resentencing

that the petitioner indicated he was afraid of Brewington, who pressured him to stab the victim.

However, this contention is questionable. In his statement to law enforcement, the petitioner said

he stabbed the victim to prove to Brewington that he was “cooler” and to put the victim out of his

misery. Middlebrooks, 995 S.W.2d at 554. Furthermore, in spite of the fact that Brewington may

well have met the aggressive profile depicted by the petitioner, he was, nevertheless, only sixteen
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years old at the time of the offense. The twenty-four-year-old petitioner was the only adult

perpetrator.

Finally, the state’s proof at resentencing established that the petitioner participated in

subjecting the fourteen-year-old victim to hours of repeated horrific and sadistic acts, which

culminated in the petitioner’s stabbing and killing the victim. Based on our review of the record,

we conclude, as did the post-conviction court, that no degree of finger-pointing to the sixteen-yearold co-defendant would have affected the jury’s verdict in light of the hours of torture to the young

victim which ended when the petitioner viciously stabbed the victim. The “heinous, atrocious, or

cruel” aggravating circumstance was far too overwhelming to be offset by this mitigation theory.

The petitioner has clearly failed to establish prejudice with regard to the relative dominance issue.

 

C. Trial Counsel’s Preparation for Testimony of Expert Witness

Although the post-conviction court found trial counsel was “surprised” by Dr. Smalldon’s

testimony regarding the petitioner’s statement that he urinated on the victim, the court further found

trial counsel had not violated reasonable standards in presenting Dr. Smalldon’s testimony. It noted

that Stebbins had spent considerable time in preparation for Dr. Smalldon’s testimony and

reasonably believed he was familiar with the psychologist’s potential testimony. The petitioner

contends trial counsel were ineffective for failing to more adequately prepare for Dr. Smalldon’s

testimony by seeking a copy of the taped interview between the prosecutors and/or more carefully

reviewing Dr. Smalldon’s handwritten notes. 

The proof at the post-conviction hearing established trial counsel Stebbins spoke with Dr.

Smalldon on numerous occasions regarding Dr. Smalldon’s potential testimony. At least four or five

of those discussions were lengthy, face-to-face meetings. They conversed in detail regarding the

petitioner’s version of the events. The proof showed that, despite these numerous, detailed

interviews, Dr. Smalldon never revealed to Stebbins that the petitioner said he had urinated on the

victim. Further, Stebbins indicated the petitioner did not tell him he had urinated on the victim, or

that he made such a statement to Dr. Smalldon. Given trial counsel’s extensive preparation for the

testimony of Dr. Smalldon, we cannot conclude the post-conviction court erred in its determination

that trial counsel’s performance was within the range of competence demanded of criminal defense

attorneys.

Furthermore, we conclude there is insufficient proof to establish this actually had a

detrimental effect on the petitioner’s defense at resentencing. Attorney Stebbins testified at the postconviction hearing that even if he had known about the petitioner’s statement to Dr. Smalldon, it

would not have foreclosed the defense team’s decision to present Dr. Smalldon’s testimony.

Attorney Barrett testified that while Dr. Smalldon’s testimony about the petitioner’s statement was

harmful, it was the “cumulative effect” of his testimony, including the state’s effective crossexamination of the psychologist as a “hired gun,” which was detrimental. As noted by the postconviction court, the depiction of an opposing party’s expert as a “hired gun” is a common

occurrence in trials, and trial counsel cannot be faulted for the prosecutor’s vigorous crossexamination of the petitioner’s expert witness. Further, Dr. Smalldon’s testimony provided the jury
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with significant mitigating evidence regarding the petitioner’s background, mental health problems

and brain impairment. 

Common sense dictates there will be few capital cases in which the entirety of a defendant’s

expert’s testimony paints a totally sympathetic picture of the defendant. Defense counsel is often

faced with a situation, such as the instant case, in which the defense must present mitigation proof

even though it is subject to attack. Finally, as we have previously stated, the state’s proof at

resentencing showed the petitioner committed dreadfully cruel and horrific acts of torture upon the

victim prior to crudely terminating his life. It is not reasonably probable that the jury’s verdict was

affected by the alleged “surprise” testimony from Dr. Smalldon.

The petitioner has failed to establish either deficiency or prejudice with regard to this issue.

IV. MISCELLANEOUS ISSUES

In an addendum to his brief, the petitioner listed numerous issues for our review in order to

“preserve these issues” for further review. However, he failed to reference the record, cite any

authority, or present any argument regarding these issues. Therefore, these issues are waived. See

Tenn. Ct. Crim. App. R. 10(b); State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997);

State v. Turner, 919 S.W.2d 346, 358 (Tenn. Crim. App. 1995); see also Tenn. R. App. P. 27(a)(7)

and (g).

CONCLUSION

We hold the post-conviction court did not err in denying the petitioner’s request for funds

for expert services or in denying the petitioner’s request for a continuance. Further, we hold the

post-conviction court did not err in finding the petitioner had failed to establish ineffective

assistance of counsel. Accordingly, we affirm the judgment of the post-conviction court.

 

___________________________________ 

JOE G. RILEY, JUDGE