### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE November 20, 2002 Sessi on
DONALD RAY M IDDLEBROOKS 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 er

red in de nyi ng his ex parte

request for funds for

expert se rvices; ( 2) the pos tconviction court er

red in de nyi ng his re

quest for a continu ance; a

nd (3) he didnotreceive effective assistance of c ou nsel duri ng his re sentenc ing hea ring. We

affirm t he judg ment of the

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

J OE G. R ILEY , J ., delivered the opinion of the court, in which D AVID H. W ELLES and A LAN E

. G LENN , JJ., joined.

Hershell D. Koger, Pulaski, Tennessee (at hearing and on appeal), a nd John E. Herbison, Nashville, Tennessee (at hearing) , for the appellant, Donald Ray Middlebrooks.

Paul G. Summers, Attorney Gene ral and Reporter; Michael E. Moore, Solicitor Genera l; Jen nife r L. Smith, Assis tant Attor

ney Genera l; Victor S. (

Torry ) Johnson, I

II , Distric t Attorne

y General ; and John C. Zimmerman and Roger D. Moore, A ssista nt District Attorneys Gene ral, for the appellee, State of Tennessee.

OPINION

The petitioner was convicted of the felony

murder of fourteen-y

ear-old Kerrick Majors and
was sentenc ed to death. The Tennessee Supreme Court affirmed the conviction, but rema nded the
case for resentencing beca

use one of the aggra

vating circumstanc es us ed to impos e the dea th penalty , the felony murde r aggravating

circumstance, was unconstitutional as applied to th e petitioner’s conviction. See State v. Middleb ro oks , 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 resente ncing, the jury

again imposed the death penalty and the Tennessee Suprem e Court affirmed the sentence. See State v. Middlebrooks , 995 S.W.2 d 550 (Tenn. 1 999). The petitione r filed a timely petition f

or post--2-

conviction relief, alleg ing his counsel at resentencing wa s ineffective. Following a hear ing, the Davidson County Criminal Court denied the petition. This appeal followed.

BACKGROUND

The following

facts pr ese nted at t

he petitioner’s resentencing hear ing are set out in the opinion of the Tennessee Supreme Court which affirmed the pe titioner’s death sentence:

On the day of the mur

der, April 26, 1987 , Do nald Ray Middlebr ooks, a twenty -four- ye ar-old w

hite male , his wife, Ta

mmy Middlebr ooks, a seventeen-y

ear-old whi t e female, and their friend Roger Brewington, a sixteen-y ear-old white male, had set up a make-shift

flea market

in East Nashville. When Kerrick Majors, the fourtee n-y ear-ol d b lack m ale victim, and four of his friends walked
over and began looking at the items on the table, Tammy Middlebrooks yelled “He y, ya’ll niggers leave our stuff alone.”

Donald Middlebr ook s and Brewington chased af ter Majors and the other boys. Shannon Stewar t testified that as he fled from the scene, he saw Brewington gr ab Majors and drag him tow a rd the table, where Middlebrook s stru ck Majors in the face and knocked him down. Stewart he ard Midd lebrooks order Majors to “shut up nigger.” The boys who made it to safety told Majors’ mothe r what had happened. Majors’ mother called t he police and also searched for her son. The next day Majors’ naked body was found lying f

ace up in a dry cr

eek bed under a foam mattress in the woods near the area where Majors had bee n abducted.

Bruises , scrape s, abrasions, and burns co ve re d M aj or ’s bo dy. A woven belt was strapped around his left wrist. A large laceration
was sliced across his right wri st. Tw o l ar ge la ce ra ti on s m ad e b y a sha rp instrumen

t formed a

n “X” ac ross his c hest. A blo ody an d swollen gash was above his left ey e. Hi s n os e w as bl oo dy, red, bad ly bur ned, and had p ieces of skin missing . His lips we re swolle n an d lacerated, and the inside of his mouth was bloody and lace rated. H is testicles were ba dl y s wollen, and his legs were covere d in blood down to his feet. There was urine on differ ent parts of his body

and on a rag tied in a tight knot around h is neck tha

t had bee n used as a gag in his mouth. A bloody stick lay next to his head. Finally, there were tw o deep sta

b wounds in

his chest a couple of inche s apart.

The autopsy indicat

ed that the cause of deat h was a stab wound to the chest and that the murder weapon had been plunge d to
a dep th of 3.3 inches. The “X” carved into Majors’ c hest wa s-3- 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 minimu m 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 th

e time whi le bleed

ing to de athafter

being stabbed.

Two days afte

r 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 witha brass knuckle ha ndle tha t had bee

n used on M ajors. Brewington

also told the office

rs where to find Midd

lebrooksand his wife.

After

being arrested, Middlebrooks ga ve a video-taped confession to the police in whic h he admitted his own involvement butdescribed Brewington as the leader. Accord

ing to Mid

dlebrook s, after dragg ing Majo rs into the woods, Brewington tied Majors’ hands and then slapped him, beat him with brass knuckles, urinat ed in his mouth, and made

him swallow. Middlebrooks said that Brewington also beat Majors’ t esticles , threat

ened to cut “it” open, be at his mouth and tongue with astick, 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 “ba ck to the da ys of Roots.” Brewington “dropped ” t he knife repeatedly on top of Majors, gagged

him, and slashed his wrist. Middlebrooks stated that Tammy Middlebrooks also slapped Majors a nd burne d his nose with a cigarette lighter.

Middlebrooks said that Majors was cry ing and begging

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

“go to school and get

an education,” Brewington re plied “F--- you, nigg er.” Middlebrooks also said that Majors’ cries were ge tting on his nerves
so he asked

Brewin gto n to st op. Acco rding to Middlebr

ooks, Brewington

then kissed Majors on the forehea d and t old him that it was “the kiss of death.”

In the video-taped confession, Middlebrooks adm itt ed stabbing Majors once and st riking h im acrosshis legs witha

switch. Middlebrooks explained that both he and Brewington stabbed Majors once. In a prior state

ment, however, Middlebrooks claimed to have inf lict ed both stab wounds. He also claimed he did not stop the torture because he was afraid of B rewington and is “scared to fight.”-4- At another point, Midd

lebrooks contende d that he s tabbed Ma jors to prove he was “cooler” than B rewington.
According to the State ’s proof , fourte en-y

ear-ol d Majors was small for his a

ge. He was desc ribed as a good s t udent 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 doct o r appointme

nts. She has ha

d a nervo us break down, suf fers fr om panic attacks , and has not bee n able to sleep at night since the murder. Major s’ older brother blames himself for Majors’ death and now suffers from mood swings.

Shannon Stewart t

estified that he ha

d spoken w ith Middlebrooks the morning of the murder. Middlebr

ooks had to ld Stewart that he wa s a membe

r of the K KK, th at he “hated niggers,” and that he punched a black man just for say ing hello. Stewart a

lso testified tha t he overheard Middlebrooks order Majors to “shut up nigger.”

The defens e intr oduce d mit iga ti on eviden ce as fo llows: Middlebr ooks’ co usins, James and Ca rol Sue L

ittle, and his h alf-s ister, Sharon Fuchs, testified about Middlebrooks’ childhood. Middlebrooks grew up in Texas. His father died when he wa s four. His mother remarried and had another c hild, Ms. Fuchs, before she again divorce d. Middle

br ooks’ mother either left the children at night with relatives or else would take them to bars with her.
According to the proof, Middlebro oks’ mother would often bring men to the

house, a nd the chi ldren som

etimes he ard or sa

w their mother ha

ving sex. M s. Fuchs testifie d that some times th es e men would molest her while her mot her watched. She further testified that she, Middlebro oks, and other ch ildren in t

he family
were molested b y di ffere nt famil y m embers. For example, Middlebrooks was ofte

n left alo ne wit

h a male relative who had sexually abused h

im, and Mid

dlebrook s’ mot her woul d grab him between his legs a nd also watch him use the bathroom. According to Sharon F

uchs, the small t own in which they g rew up lacked counseling services or socia l service agenc ies wher

e they could seek help for sexual abuse. According to her, n o one in the family ever discusse d or admitt

ed the fa mily 's prob lems.

The proof further indica ted that Middlebrooks was often angry and got into troub le. He wa s sent to a Methodis t Home for Children in Waco for two yea rs. Later, he wa s twice sent to prison.-5- Between prison stays, Middlebrooks started to have seizures. On one occasion he climbed a water tower and threate ned to commit suicide. He was hospitalized more than once at a mental institution.

A p syc hologist, Dr. Jeffrey L. Smalldon, performed neuropsycholog

ical and psychological evaluations of Middle brooks. From these ev aluation s, interviews, testing, and prior education and medical records, Smalldon concluded that Middlebrooks has a severe bor derline personality disorder. Middlebr ooks exhibited seve ra l characteristics of the disorder including incons ist ent behavior, instability of mood, a marked identity disturba nce, impulsive and reckle ss behavior, poor anger control , and recurring suicidal or self-destructive acts. Sma lldon testi f

ied that the documents from other mental health professionals who have evaluated Middlebrooks indicate that he su ffers f

rom subst ance a

buse, psy chotic pe rsonality disorder, and schizo

phrenia . Middlebr

ooks also suffers a mild degree of organ ic brain impairment

which causes him to be more impulsive and less able to delay

his responses. Finally, Smalldon testified that Mid dlebroo ks has also exhibited characteristics of adults who were sexually abused as children.
During cros s-exa

m ination, Dr. Smalldon admitted that Middleb rooks c onfesse d to a gr eater in volvemen t in Majors ’ death than he had in t

he video- taped co nfession . For in sta nce, Smalldon disclosed that Middlebrooks ad mit ted to him th at it was h is idea to hold Majors fo

r ransom , t hat he helped tie Majors up, and that he urinatedon Majors. In an attem pt 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 c hronic liar. Dr. Smalldon conceded that Middlebrooks had
never expressed any re

morse to him. Smalldon agree d that there
were some indications in the med ical rec ords of Mi ddlebroo ks’ mali ngerin g, but testified that these indications were not inconsistent with menta

l illness.

In rebuttal, the State introduced the testimony of two experts indicating that M iddl ebrooks w as exagg erating his mental

illness sym ptoms, 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 whe ther Middlebrooks was mentally ill. The other expe

rt testifi ed that h e made no f inding of mental illn

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

After considering the evidence, the jury co nclude d that the aggravating

factor set forth in Tenn. Code Ann. § 39-2-203(i)(5), that-6- the murder was “especially heinous, atrocious , or cruel in that it involved torture o

r depra vit y of mind,” outweighed the evidence of mitigating factor s. Ac co rd in gl y, the jury sentenc ed Middle

brooks to death for the murder of Kerrick Ma jors.

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 appe al. When the United States Supreme C ourt dismis sed the a ppeal, Stebbins and two of the attorneys w ho represented

the petitioner during h is initial tr

ial, Richa

rd McGe e and L

ionel Barret t, agreed to represent the petit ioner at res enten cing.

Stebbins stated he

was prima

rily resp onsiblefor the investigation and presentation of mitigation evi dence a t resentencing. Stebbins said he met often with the petitioner, reviewed the records from the p etitioner ’s first tr ial, collected re cords an d investig ated t he petitioner’s background

in preparation for resentencing . Stebbins testified they hired a mitig ation specialist to investigate the petitioner’s background.

Stebbins said the defense team had two theories at rese ntencing: (1) the petitioner was the “lesser player”in committing the offense in comparison to co-defendant Rog er Brewington; and (2) the petitione

r had “a bizarre c hild hood with a history of mental illness.” Stebbins testified the defense team rev

iewed the

transc ript of

Roger Brewington’s trial a nd other documents and interviewed

people who knew Brewington. Stebbins stated the only proof prese nted at resentencing which supported the theory tha t Brewington was more active in the off ense than the petitioner was t he petition er’s statements, in which the petitioner indicated he was afr aid of Brewington and participated

because Brewi ngton thr

eatene d him. Stebb ins said the defense team dec ided to limit the amount of proof they pr esented regarding B rewingtonbecause they were concerned

that if they “came after Brewington too hard,” the state would present Bre wington’s testimonyat the hearin g. Stebbins testifie d they

were a ware B rewingto n had given a statement to the police in which he blamed the petitioner for

the offe nse. I n his state ment, Br ewingt on said the

petitione r told the v

ictim to remove his clothes, indicated they we re going to have to kill the victim, an d stabbed

the victim twice.

Stebbins said he was aware Brewington was larger than the petiti oner and

appear ed to be far older than his a

ctual ag e of sixtee

n at the tim

e of the o ffense

. Stebbins testified he was aware of information contained in a psyc hological report on

Brewington. The report indicated Brewington had poor impulse control; unsocialized, aggressive behavior; impo verished moral reasoning; and
was extremely self-ce

ntered. Stebbins stated he was unsure whether he revie wed Brewington’s presentence rep ort but was generally familiar with information contained in the report. Stebbins testified he was no t aware the state submitted i n the presentence report that Bre wington’s sentence should be enhanced because he wa s “a leader in the commission of the offense.” Stebbins stated he-7-

had review ed doc ument s belo nging t o Brewi ngton , whic h incl uded r acist writi ngs and drawings and
an oath to se

rve the d evil. Steb

bins state d he had n ot se en cert a in docume nts relat ing to Brewington’s social history, including medic al reco rds, court documents concerning his lega l custody, and ce

rtain psychological reports.

Stebbins testified t hat pr ior to the testimony of defense expert Dr. Jeffery Smalldon at resentenc ing, h e was una ware of any evidenc e indica

ting the petitione r urinated on the victim. Stebbins said he recommended hiring Dr. Smalldo n becau se Dr. Sma lldon had t

estified in a number of capital sentencing hearing s and had a reputation for being competent. Stebbins testified hespoke withDr. Smalldon a number of times in preparation for the petitioner’s rese ntencing hearing, and they had at le ast four

or five le ngthy discussio ns. Stebbins stated he and Dr. Smalldon had detailed discussions regarding what the pe titioner 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 fa ctor in decidi n g 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 no tes p rior to Dr. Smalldon’s testimony. Stebbins said Dr. Smalldon’s recitation of

the petiti oner’s s tatement s 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 pro of with t estimony from the petitioner’s re latives
co ncernin g his childh ood and pe rsonal hi story . Accor

ding to Ste

bbins, tha t testimony

went well. Stebbins testified he and co-counsel McGee brief l y di scusse d whether they would present Dr. Smalldon’s testimony and mad e a jo in t d ec is io n t o p ro ce ed wi th th e p syc ho lo gi st ’s te st im on y. Stebbins opined Dr . Smalldon’ s testimony “probab ly

put the jury to sleep” a

nd was unsure whether it carried much weight. Stebbins further stated the e xpert’s testimony introduced to the jurythe petitioner’s statement that he urinated on the victim, which was harmful.
Prior to the resentencing hearing , two assistant district attorneys trave led t o Ohio t o interview Dr. Smalldon. Their interview was taped. Stebbins stated he was aware of the interview, butdid 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 prosecu tors, advised them the interview was tap ed, aske d if the de fense te am should o

btain a copy of the tape, and indicated

they should review D

r. Smalldon’s notes regarding the state’s interview for potentia l weakne sses in his t

estim ony. Stebbins testified he did not rece ive 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 Brewing ton urinated on the victim.

Stebbins testified that, prior to resentencing, the state rec eived a copy of D r. Smalldon’s handwritten notes taken during his meetings with the petitioner along with Dr. Smalldon’s summary of the notes . Stebbins i ndicate d he did no t notice a refer ence in t he note s to the pet itioner’s statement that he urinated on the victim.-8-

Another member o f the def

ense tea m, attorney L

ionel Barrett, testified

at the post-conviction hearing that he reviewed Brewington’s criminal court fil e and disc

ussed the case with Brewington’s at to rn ey. Barrett opined that the petitioner’s proof at resentencing went well until Dr. Smalldon testified. According to Barrett, the prosecutor did a n e xcellent 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 testimonythat was d

etriment al. Barrett opined that he and co-counsel Mc Gee were deficient in not properly investig ating Dr. Smalldon’s qualifications.

Clinical psy cholog ist

Dr. Jay David Woodman testified as a defe nse expert at the petitioner’s first trial but notat the re sentencing hearing. He testified at the post-conviction hearing that he interviewed

Roger Brewington

and reviewed some of Brewing ton’s medical records, psy chological reports, presentence report, and other records. Dr. Woodmanopined tha t Brewi ngton wo

uldhave been more dominant and more inclined to be a leader than the petitioner. F urther, Dr. Woodman testified it was possible Brewington sat back and allowed the petitioner to torture and kill the victim, and that the p etitioner

could hav e committ

ed the offen se without the help or encouragement of Brewington.

Dr. Woodman stated that prior to resentenci ng, he was contacted by someone from the petitioner’s defense

team see king to review his data, which he made available. Dr

. Woodman al so said that when he interviewed Brewing ton in preparation for the post-conv iction hearin g, Bre wing ton indicated he was unwilling to cooperate until the petitioner admitted he stabbe d the victim. According to D r. Woodman, Brewington stated the petitioner stabbed the victim, and the petitioner was the primary assailant who “did all of what was horrible.”

POST-CONVI CTION COUR T’S FINDINGS

Follo wing t he pos t-con victi on hea ring, the po st -c on vi ct io n c ou rt en te re d a de ta il ed , t hi rt ypage 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

petitione r] acted ‘ under the

substa ntial domination of another person,’” and, therefore, vi ol at ed re as on ab le st an da rd s b y f ail ing to properly

investigate co-defendant Brewin gton’s b ackgr

ound. The

post-con viction c ourt state d that documents pr oduced at the postconviction hearing

depicte d Brewington a s “an ag gressi ve and int ellige nt indiv idual with a dominating personality;” counse l was aware of a psy

chological report on Brewington, but unaware of Brewington’s presentence report in which the state submitted Brewington was a leader in the
co m mission of the offense; counsel did not consider presenting e xpert testimony to compare the personalities of the pe titione r and Brewington; and counsel should have known about additional information regar

ding Br ewingt on’s a g gressi ve perso nality . Accor ding to th e post-c onviction

court, trial counsel’s decision to bypass a strong pursuit of the theory that B rewington was the dominant actor was not an informed decision.
Further, the lower

court found that du

ring the interview betwee

n the pros ecuto rs and D r. Smalldon, Dr. Smalldon revealed the petitioner’s statement that he had urinated onthe victim, that-9-

neither the petitioner nor

Dr. Smalldon had shared this information with trial counsel, and that trial counsel was surprised by this informa tion during Dr. Smalldon’s testimony. Th e post-c onviction court also found attorney Stebbins spent consider able time interviewing Dr . Smalldon, reasona bly believedhe was thoroughly familiar with Dr. Smalldon’s knowledge of the petitioner, and was not at fault for failing to know ab out the pe

titioner’ s stateme

nt. The low er cour

t held tria l counsel did notviolate r

easonab le st an da rd s i n p re se nt in g D r. Sm al ld on ’s te st im on y, 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 reasona ble stand ards. The post-c onviction court al so found c ounsel wa s not at fa ult for the state’s effective impeachmen t of Dr . Smalldon as a “hired gun” nor with inconsistencies betwee n his written notes and the summary of those notes. Th us , the post-conviction court found no deficiency

by trial counsel with reg ard to Dr. Smalldon.
Despite the post-conviction court’s finding that trial counsel’s perfor mance w as defic ient in fail i ng to properly investig ate information that Brewington was the dominant offe nder, the lower court found the petitioner failed to prove there was a re ason a ble probability the outcome at tria l would have been different but for counsel’s de ficiency. According to the post-conviction court, the “written word fails to convey the senselessness and

horror of this crime” in which the twenty-four

ye ar-old petitione r and two juvenile s subject

ed the fourteen- ye ar-old

victim to torture over

a period of several hours before

killing him. The lower court stated the petitioner’s confession descr ibed the “horrib le details” of

th e cr im e. It found the petitioner’s best mitigating evidence, his impoverished background

and his suffering repeated c hildhood sexual abuse and neglect, were w ell prese nted to the jury through the testim

o ny of fam

ily members. I

t further found that even if evidence of Brewington’s dominanc e were added, th e impact o f this mitigati on eviden ce would never ov ercome the tortur e of the victim, and

the outco me at tria

l would ha

ve been no diffe rent.

I. FUND S FOR EXP

ERT SERVICES

In an ex par te pro ceeding approximately two months prior to the post-conviction relief hearin g, the petitioner

moved the post- convicti on court f or funds t o hire a n eurological rad

iologist to conduct tests on the petitioner. During the hearing , post-conviction c ounse l explained that the petitioner had been stabbed in the head with an ic e pick y

ears pr ior to the o ffense . Accor ding to post-co nv iction counsel, trial cou nsel was a

ware of the injury

and Dr. Sm alldon te stified a bout it, bu tno tests were performed to confirm the petitioner suffe red from organic brain dam age. Th e neurological radiologist informed post-conviction counsel that an MRI cou ld detec t such bra in dam age and, if damage were de tected, a PET scan would also be necessary . The post-convi ctio n court denied the petitioner’s motion because Dr. Smalldon testified at the resentencing hearing that the petitioner had organic brain damag e, and the petitioner had not met his burden of showing the needfor expert services. The petitioner contends the trial cou rt abuse d its discreti on in deny ing his request.

Our review of the record

from the resentencing hearing reveals Dr. Smalldon indeed stated th e petitione

r suffe red fro m organ

ic brain damage and had a

mild deg

ree of f unctiona l brain impairme nt which a

ffecte d his lang

uage s kills.-10-

A post-conviction court may in its discretion grant an indig ent petiti oner’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 a uthorize the funds, the petitione

r must demo nstrate

the exper t service s are ne cessar

y to protect his constit

utional ri ghts by showing the services ar

e requir ed to establish a ground

for post- convicti on relie f, and tha t he is unable to establish that ground by other available evidence. Id.

We conclude

the post- convicti on court d id notabuse its discretion in denying the petitioner’s motion for funds to hire a neurological radiolog ist. The record shows the proo f pre sented by the petitioner at resentencing established the petitioner had or ganic brain damage. T

he petitioner failed to prove the ex pert’ s serv ices w ere nece ssary for e stabl ishi ng a gr ound fo r post-conviction relief;
more speci fically , he failed to establish that services of the expert were re quired 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 re sentencing.

II. CONTINUANCE

The petitioner moved the post-conviction court to continue the pos t-convi ction hearing because post-conviction counsel needed ad ditional 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 availab le proof. After hearing the proof , the
cou rt d etermined post-conviction counsel already had presented sufficient information reg arding Brewington’s relatively dominant per sonality and denied the petitioner’s motion for a

continuance. The petitione

r argu es the tri al court

erred i n deny

ing his r equest f or a cont inuance to allow hi m 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 conti nuan ce unless it appears that the lower court abused its discretion, and the movant wa s prejudiced

as a result. State v. Cazes , 875 S.W.2d 253, 261 (Tenn. 1 994), cert. denied, 513 U.S. 1086, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995). I n the instant case, the post-conviction c ourt did notabuse its discretion in denying the c ontinuance. We further note the post-conviction court found trial counsel’s performance deficie nt with regard to theBrewington issue. The petitioner suffered no prejud ice. Thisissue is without meri t.

III. INEF FECTIVE A SSISTANCE OF COUNSEL

The final issu e prese

nted in thisappeal i s w hether trial counsel was deficient at the petition er’s resentencing hearing and, if so, whether it affected the jury ’s verdict. The stat e maintains the post-conviction court erred in finding trial counsel was deficient

for failing to further investig ate and present proof regarding the relative dominance of Roger B rewington. The petitioner contends the lower court cor rec tly found deficiency, but erre d in concluding trial counsel’s deficiency

did not affe ct the out

c ome at re sentenc ing. Fu rther, th e petition er challengesthe postconviction court’s determination that trial counsel’s preparation for Dr. Smalldon’ s testimony did not violate reasonable standards.-11-

A. Standard of Review

For a petitioner to successfully ov erturn a j ury’s ver

dict based on ineffective assistance of counsel, the petiti oner must first establish that the services rendered or the advic e given was below “the range of competence de manded of attorney s in criminal ca se s.” Baxter v. Rose , 523 S.W.2d 930, 936 (Ten

n. 1975). Second, t

he petitio ner must show that t h e deficiencies “actually

had an adverse effect on the defe nse.” 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 t o relief . Our supr

eme cour t describ ed the sta

ndard of review a s follows:

Becau se a petitioner must establish both prongs of the test, a failure to prove either deficiency or prejudice provi des a s ufficient basis to denyrelief on the ineffective assistance cla im. Indeed, a court need not a

ddress the compone

nts in any particular

order or even addre ss both if the defendant makes an insufficient showing of one component.

Goad v. State , 938 S.W.2d 363, 370 (Tenn. 1996) (citi ng Strickland , 466 U.S. at 697, 104 S. Ct. at 2069). The petitioner

is not entit

led to the benefit of hind sight; the petitione r may not second-gue ss a reasona bly based tr ial strat egy ; and the p etitioner may no t criticize a sound, b ut unsucc essful, tactical decision made after adequate pre paration for the case. Adkins v. St ate , 911 S.W.2d 334, 347 (Tenn. Cr im. App. 19 94); see Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Becau se the Eighth and Fourteenth Amendments to the United States Constitution require that a death sentence be based on a part icularized consideration of each defendant, the c ourts are especia lly careful in protecting a defe n da nt’s r ight t o coun sel at a capit al sen tenci ng heari ng. Nicho ls v. Sta te , S.W.3d , , 2002 Tenn. LEXI S 419, at **49-50 (Tenn. Oct. 7, 2002). Ge ne ra ll y, trial counsel’s failure to investigate and prepare for a capital sentencing hearing is below the range of compe

tence r equired of crimin al att orneys. Zagor ski 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 alleg ations by clear and convincing evidence

. Tenn. Code Ann. § 40-30-210(f). The findings of fact made by t h e post-conviction court are conclusive a nd will no t be disturbed unless the evidence contained in the recor d 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 co urt determined trial counsel’s performance in pr eparation for resentencing was d eficien t because counsel failed to adequately investigate facts supporting the theory that the petitioner’s co-defendant, Roger Br ewington, was the dominant actor in the
com mission of the murder. The state urges that the post-c onviction court erred in mak ing thi s determination, while the

petitione r maintai ns the post

-convic ti on court’s determination of deficiency was proper.-12-

Trial counsel must conduct appropriate factual investiga tions or make a reasonable decision that makes particular investigations unnecessary

. Nichols , S.W.3d at , 2002 Tenn. LEXI S 419, at *17-18. I

n a capit al trial, counse l’s duty

to investigate and prepare extends to the sentencing phase. Goad , 938 S.W.2d at 370. Informed choices and tac tical decisions are entitled to deference from the courts; however, uninformed decisions made without adequate pre paration are not entitled to deference. Id. at 369.

In the instan

t case, t he proof at the pos t-convic ti on hearing established that one o f the theories trial cou

nsel purs u ed a t resentencing was that Roger B rewington was the dominant actor in comparison to the petitioner. There was evidence tha t trial counsel investigated Brewington’ s background

and obtained some information, including information concerning Bre wington’s psychologic al evalua tion. Howe ver, the proof at the hearing a lso showed trial counsel was not
aware of the state’s position that Brewington’s sentence should be enhanc ed because he was a leade r in the commission

of the of fense. T rial cou nsel had n ot revie wed some document s which, according to psy cholog ist Dr. Wood man, show ed Bre wington to have a more domin ant pers onality than t he petitioner. Attorney Stebbins testified the defe nse team decided not to aggre ssively pursue the theory that Brewington dominated the petitioner out of conce rn the state would present Brewington’s testimony. The re was proof at the hearing which clea rly indicated B rewington’s position was that the petitioner was primarily r esponsible for the torture and murder of the vic tim. 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 f ailed to establish that additional proof of Brewington’s more dominant persona lity would hav e affe cted the

jury ’s verdi ct, it is not necessary for

this court to address the deficiency prong. See Goad , 938 S.W.2d at 370.

When a pe titioner claims ineffective assistance of counsel during the penalty phase

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

. . . wo uld have c oncluded that the balance of agg ravating and mitigating circ umstances did not warrant death.” Nichols , S.W.3d at , 2002 Tenn. LEXI S 419, at *50 (quoting Strickland , 466 U.S. at 695, 104 S. Ct. at 2069). In determining whether a defendant was prejudice d by counsel’s failure to present suf

ficient mitigation evidence, the courts should consider several factor s, inclu ding: (1) the nature and extent of the availa ble mitigating evidence that was not presented; (2) whether sub stantiall

y similar mitigating evidence was presented to the jury in either the guil t or pena lty phase; and (3) whether there was such strong evidence of aggr

avating factors that the mitigating evidence would not have affected the jury ’s determination. Id. at , 2002 Tenn. LEXI S 419, at*51; Goad , 938 S.W.2d at 371.

In the case sub judice , co-defendant Brewing ton 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 Br ewington. Dr. Jeffery

Smalldon also testified at resentencing that the petitione r i ndicate d he was a fraid of Brewin gton, who pressur

ed him to sta

b the vict im. However, this conte

ntion is questionable. In his statement to law enforc ement, the petitioner said he stabbe d the vict

im to prove to Brewington that he wa s “coole

r” and to put the vic tim out of hi s mi se ry. Middlebrooks , 995 S.W.2d at 554. Furthermore, in spite of the fact that Brewington may
w ell have met the aggressive pr ofile depicted by the

petitioner, he was, nevertheless, only sixteen-13-

yearsold at the time of the offense. The twenty -four-y ear-old petitioner was the o nl y a dult perpetrator.

Fi na ll y, the state ’s pro of at re sentenc ing esta blished th at the pe

titioner p articipa

ted in subjecting the fourteen-y ear-old victim to hours of repeated hor rific and sadistic acts, which culminated in the petitioner’s stabbing and killing the victim. Based on our re view o f the re cord,
we conclude, as did the post-conviction court, that no degree

of finger-pointing to the sixteen-yearoldco-defendant would have affe cted 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 c ircu m st an ce wa s f ar to o o ve rw he lm in g t o b e o ff se t b y th is mi ti ga ti on th eo ry. The petitioner

has clearly

failed to establish prejudice with regard to the relative dominance issue.

C. Trial Co

unsel’s P reparat ion for Test

imony of Ex

pert Wit ness
Alth ough the post-conviction court found trial counsel was “surprised” by Dr. Smalldon’s testimonyregarding the petitioner’s state ment that he urinated on the victim, the court further found trial counsel had not

vi ol at ed re as on ab le st an da rd s i n p re se nt in g D r. Sm al ld on ’s te st im on y. It noted that Stebbins ha

d spent co nsidera

ble time in

preparati on for Dr. Smalldon’s testimony and
rea sonab ly

believed he was familiar with the psy chologist’s potential testimony. The pe titioner contends trial counsel were ineffective for f ailing to more adequately prepare for Dr. Smal ldon’s testimony by

seeking a copy

of the taped interview between the prosecu

tors and/ or more c areful ly reviewing Dr. Smalldon’s handwritten notes.

The proof at

the post- convicti on hearing esta blished tr ial couns el S tebbins spoke with Dr. Smalldon on numerous occasions regarding Dr. Smalldon’s potential testimony. At least four or five of thos e disc ussi ons we re lengt hy, face-t o-face meeti ngs. Th ey convers ed in d etail regardi ng th e petitioner’s version of the events. The proof show ed 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 nottell 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 testimonyof Dr. Smalldon, we cannot conclude the post-conviction court er red in its determination that trial counsel’s performance was within the rang e of competence demande d of criminal defe nse attorne ys. Furthermore, we co nc lude there is insufficient proof to establish this actually had a detrimental effect on the petitioner’s defense at r esentencing. Attorney

Stebbins testified at

the postc onviction h earing

that eve n if he ha d known ab out the pe

titioner’ s stateme

nt to Dr. Sma

lldon, it would not have foreclosed the defense tea m’s decision to p resent Dr . S ma ll do n’ s t es ti mo ny. Attorney Barrett testified that while Dr. Smalldon’s testimony about the petitioner’s statement was harmful, it was th e “c umulative effec t” of his te stimony , includin g the sta te’s eff ective crossexamination of the psy

cholog ist as a “h

ired gu n,” whic h was det

rimental . As noted

by the postconviction court, the depiction of an opposing party ’s expert as a “ hired gun” i s a common occurrence

in trials, an d trial co

unsel ca nnot be fa

ulted for the prosecutor’s vigorou s crossexamination of the petitioner’s expert witness. Further, Dr. Smalldon’s testimony pr ovided the jury-14-

withsignificant mitigating evidence regarding the petitioner’sbackg round, me

ntal hea lth proble ms and brain impairment.

Common sense dictates therewill be fe w capita l 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. Final ly, as w e have previously stated, the state’s proof at resentencing showed the petitioner commit ted drea dfully 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 d eficien cy or preju dice with

regard to this issue.

IV. MISCELL

ANEOUS ISSUE S

In an addendum

to his brief, the petitioner listed numerous issues for our r eview in o

rder to “preserve these issues” for f

urther re view. However, he failed to refe rence the record, cite any
au th or it y, or prese

nt any argume nt rega rding th ese issues. Therefore, these issues are wa ived. See Tenn. Ct. Crim. Ap

p. R. 10(b) ; State v. Schaller , 975 S.W.2d 313, 318 (Te nn. Crim. App. 1997); Statev. 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 deny ing the petitioner’s requ est for funds for expert services or in deny ing 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 assistanc e of coun sel. Acc ordingl y, w e affir

m the judg ment of the

post-con viction c ourt.

___________________________________ JOE G. RILEY, JUDGE