### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE N ove m be r 18, 200 3 S es sio n

STA TE OF TENNES SEE v . CARTER MASTERS

Appeal f romthe Cr im inal Cou rt for Over ton County No. 5,000 Leon Burns , Jr., Judge

No. M2003- 00305-CCA -R3-C D - F iled Jun e 2, 2004

Th e d e f e n d a n t, Ca

r te r M a s te r s , w a s c o n v ic te d b y a ju r y o f tw o c o u n ts o f e s p e c ia ll y ag g rava ted kidnapping , ag g ravated burg lary , and ag g ravated as s au l t

. The trial c ourt imposed concur rent sentenc es of twe nty

y ear s for ea ch k i d n apping, four y ear s for the bur g lary , and thre e y ear s for the

a g g ra vate d a ssa

ult . In th is a

pp e a l of ri g ht, the de fe nd a nt a sse rt s th a t he wa s den ie d d ue pr oc e ss beca use the menta l health expert reta ined by trial counsel wa s inc o m p et ent. I n the alternative, he arg ues t hat t rial counsel was ineff ective f or fa iling to selec t a compete nt psy cholog ist. The defe ndant

a lso a sse rt s that his du e pr oc e ss ri g hts we re of fe nd e d by the state ’s c ro ss- e xami natio n of the de fe ns e psy cholog ist. The judgme nts of the trial court are aff irmed.

Tenn. R. App . P . 3; Judgme nts of the Trial Court Affi rm ed

G AR Y R. W ADE , P.J ., delivere d the opinion of the court, in w hich T H O M A S T. W O O D A LL and N OR MA M C G EE O G LE , J J ., joined.

Doug las A. Tra nt, Knox ville, Tennesse e (on appea l), and James D. Whit e, Jr., Celina, Tennessee (at tr ia l) , f or the app e lla nt, Cart e r M a ste rs

. Paul G. Summers, Attorney Gene ral & Reporter ; Kim R. Helper
, Assistant Attorney Gene ral; and Owen G . Burnett, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

T h e d ef en d an twa s i n i t i al l y

ch ar ged wi t h t wo co u n t s o f e s p ec i al l y aggr av at ed k i d n ap p i n g, one count of

ag g ravated burg lary , and two counts of ag g ravated assault. Ruth Thrashe r, the de fe nd a nt’ s e str a ng e d w if e , w a s th e na me d v ic tim

of on e of the kid na pp ing s a ndon e of

the a ssa ult s. Ms. Thrashe r’s g randdaug hter, Jennifer F letcher , was the vic tim of the remaining char g es. A subsequent indictment cha rg ed espe cially

ag g ravated kidnapping for e ach vic tim and an additional ag g ravated burg lary

count. The jury found the defe ndant g uilty of one count of espec ially ag g ravated kidnapping for e ach vic tim, one count of ag g ravated burg lary , one co u n t o f the lesser included offe nse of ag g ravated criminal trespass, one count of ag g ravated assault as to Ms. Thra sher, a nd one-2-

count of the le sser in cl u d ed offense of assault as to Ms. Fle tcher . The trial c ourt dismissed the

a g g ra vate d c ri min a l tr e sp a ss c ha rg e . T he e ff

e c tiv e se nte nc e wa s tw e nty y e ars

. At trial, Ms. Thrashe r t estified that she had known t he defenda nt for twenty -three y ear s and that they marrie d in 1993. After a

political arg ument with the defe ndant i n November of 2000, she

mov e d o ut o f the ir

re sid e nc e a ndfi le d f

or divo rc e . A mari ta l di sso lut ion a g re e me nt w a s f ile d in Marc h of 2001. Thre e day s later, the vic tim returned to a r esidence s h e s h ar ed with her g rand daug hte r a ndtw o g re a t- g rand c hil dr e n, a g e s tw o a ndfo ur , a ndfo un d th e de fe nd a nt h idi ng in he r b e dr oo m c los e t. A s sh e op e ne d th e se c on d o f h e r clos et's tw o b i- fo ld d oo rs , th e de fe nd a nt, "ne rvous and shaky ," pointed a pis t ol at her a nd said, " [T] his is the onlyway I can think to do it." When Ms. Fletche r and the v ic ti m’ s g r e at- g r an d d a

u g h ter enter ed the be droom, the def endant dire cted all of t hem i nto the l iving room "to talk." Acc ording to Ms. Fletc her, the defe ndant told her ther e
w o u ldb e n o tr o u b le if

M s

. T h r a s h e r

le f t w ith h im
, a n d w ar n e d th a t h e h a d $ 1 0
, 000 to pay for a

c on tr a c t ki lli ng if

Ms. F le tc he r i nf

orme d th e a uth oriti e s of the abd uc tio n. Ms. Th ra sh e r a g re e d to

acc ompany

the def endant but bef

ore the y left, Ms. Fletche r unsucc essfully tried to take the g un from the de fe nd a nt w ho thr e a te ne d to kill he r. At the de fe nd a nt’ s in sis te nc e , M s. Th ra sh e r p a c ke d a sma ll

ov e rn ig ht b a g , ca

rry ing so me c lothe s o ve r h e r a rm . T he de fe nd a nt i ns truc te d h e r t o d ri ve to h is residenc e in her

car . Although Ms. Thr asher "ne ver sa w the g un any

more,” the def

endant or dere d her to pa rk her car behind his storag e building and direc ted her to his van. The def

enda n t stopped

a t a Wal -M art

in Spa rt a , whe re the y pu rc ha se d a new batte ry fo r the va n an d a pai r o f s ho e s f or Ms. Thrashe r. As he dr ove, the de fenda nt held her hand and told her that he “w as g oing to pr ove how much he c are d.” Ove r the ne x t two day s, the defe ndant drove toward the Florida Key s, stopping at the spac e ce nter and a fruit stand along the way

. When the y rea ched D aytona, they

chec ked into a motel an d we nt for a drive bef ore the defe ndant was a rre sted by

authorities. The de fenda nt apolog ized to Ms. Thrasher f or " the way

he tre ated [her] and [her] family .”

David F letcher , who is marrie d to Ms. Thr asher ' s g randdaug hter, rec alled that Ms. Fletche r
was a fra id to call the police be cause the defendant had threate ned her with death. He determined that the d ef en d an tl i k el y

en t er ed t h e r es i d en ce t h ro u gh a b ac k b ed ro o mwi n d o w w h i ch wa s p ar t i al ly open. Fletc her r elated that he and James Norrod dr ove to D aytona for the victim a fter she had bee n found by a uth oriti e s.

J ennife r F letcher , who desc rib e d th ed e f e n d an t a s intelligent a nd detail-orie nted, testified that sh e ha d w arn e d th e de fe nd a nt that Ms . T hr a sh e r w a nte d n o c on ta c t w ith him . Sh e oth e rw ise

corr oborate d Ms. Thrashe r' s version of the confr ontation and abduction. She spec ifically confirme d that th e de fe nd a nt w a s a rm e d a nda c c us e d h e r o f b e ing respo ns ib le for his pr ob le ms w ith Ms. Thrashe r. W hen Ms. Fletc her informed t he defenda nt that her boy friend w ould arrive shortly afte r
noon to pic k up the children, he replied, "I f [he] g ets here at 12:30, he’ll find thre e dea d bodies if we don’t g et this straig htened out." Ms. Fletche r also ac knowledg ed that she attempted to take the g un from the d ef

endant but wa s unsucce ssful. When she attempted to re move her daug hter fr om the

ro om, the de fe nd a nt p oin te d th e c oc ke d g un a t he r and wa rn e d h e r, " I f y ou g o th ro ug h th os e do or s, y ou’ll g o throug h a dea d woman." When the victim ulti mately ag ree d to leave w ith the defe ndant-3-

if he would not hurt any one, he inf ormed Ms. F letcher

that he had hir ed someone to kill her if she called the police.

B e tty Mc Cormic k, a n e mpl oy e e of Am e ri c a n Sav ing s Ba nk , tes tif ie d tha t les s th a n a

mon th befor e the abduction, the defe ndant wit hdrew a $10,000 certificate of deposit. A ca shier’s c heck w as issued in the amount of $4,197.42 and the rema inder wa s in cash.

Allen Master s, the defe ndant’s only child, testified on beha lf of the de fense . He state d that prior to h is s e pa

ratio n fr om M s. Th ra sh e r, the de fe nd a nt h a d a g oo d me mory

fo r d e ta ils , p art ic ula

rl y with reg ard to g eog raphy
, and that af terwa rd, the de fenda nt was “unf ocused” and obsesse d with a

rec onciliation. Masters obser ved that the defe ndant ate le ss, slept erratically , could not conce ntrate, and talked and mumbled to hims elf. A month or so be fore the crimes, M as t er s n o t i ced a n improvement in the def

endant’ s behavior.

J anice Majewski, the de fenda nt’s niece , testified that on one occa sion, w hen she c alled the d efendant’s re sidence , Ms. Thrashe r informe d her that she and the de fenda nt were rec oncil i n g. Acc ording to Ms. Ma

jewski, Ms. T hrashe r stated that she intended to move back into the de fenda nt’s residenc e.

The defe ndant’s brother, Robert Masters, testified that althoug h he lived in Arizona, he and the def endant visited ea ch other

sever al times a y ear and spoke fre quently by telephone. He r eca lled that a month befor e the a

bduction, the def

endant " couldn’t sit stil l over a bout f ive (5) minutes" and be g a n to los e his way

in f a mil iar pla c e s. He te sti fi e d tha t he ha d ask e d th e de fe nd a nt t o b ri ng him the ca sh from a $10,000 c ertificate of de posit that had matured in F ebrua ry of 2001.

Eric En g um, a

c lin ic a l ps y c ho log ist

wi th spe c ia lti e s in clin ic a l neu ro ps y c ho log y a ndfo re ns ic psy cholog y , first met with the defe ndant in June of 2001, three months a fter the crimes. A fter approximately

nine hours of consultation with the defendant, Dr. Eng um administered a battery of tests, including eight standardized tests rela ting to extended mental s tatus, five tests which a ssessed

n eu ro -p sy cholog ical func tion, and one per sonality inventory

examination. After re viewing documents, Dr

. E n gu m later a dminist ere d the Wex ler Memory Scale test, the ve rbal a nd visual components of wh i ch p ro vide re sults as to the functioning of eac h hemisphere of the brain. Dr. Eng um describe d the def

endant, who ha d an I .Q. of 104, as "somebody who had periods whe re he became mildlyag itated, somewhat irritable, ang ere d at very minor kinds of things," indicating a lac k of self control. I t was his opi nion that the defe ndant, who wa s competent a t the time of the off enses and compe tent to stand trial, suffe red f rom Alzheimer’s deme ntia. Dr. Eng um relate d that his testing sug g ested that t he rig ht hemisphere of the def endant’ s brain, which c ontrols "what we ca ll social intelligenc e," had a gre at er l oss of cog nitive function than the lef t. He adde d that the def

endant would also have been suf fering stre ss as a re sult of having had prostate canc er.

I t was hi s opinion that the defendant was "obse ssed" with rec onciling with the vi ctim and had

re a lize d that the arg ume nt un de rl y ing the ir se pa ratio n wa s " ir

ratio na l." As to the de fe nd a nt’ s st a te of min d at th e tim e of

the of fe ns e s, Dr . E ng um t e sti fi e d a s f oll ow s:-4-

Q No w, do y ou ha ve a n o pin ion a s to wh e the r

. . . [the de fe nd a nt] wa s a ble to know that he wa s violating the la w? A For

kidnapping her, I don’t believe that he did. I believe that in his m ind, and fr om e ve rythi ng he sa id andfr om w hat a ll t he te st r e su lts sa y , h e wa s a bs olu te ly obsesse[d] with t h e concept of if I can just talk to her, and I can f actor out the g randdaug hter so that she is not convincing my wife to sta y awa y from me; I f I can g e t her of f to the sid e a nd no t hav e to de a l with he r, the n I c a n co nv inc e [the vic tim ] to re turn to me a nd we c a n g o on the way we we re be fo re . I thi nk that w a s th e so le fo c us a ndthat is wh e re his min d w a s. * * * Q You mentioned a moment a g o, and let me ba ck up just a moment, a s to the kidnapping
, and the ag g ravated burg lary that he is cha

rg ed with, and the a g g ravated assault. Do y ou have an o p inion as to the mental eleme nt of those whethe r . . . he was substantially

impaired, his ca

pacity was, that he wasn’t c apable of knowing that he wa s violating the la w? A F or

the kid na pp ing , c le arl y

. Cle arl y

the kid na pp ing . Y ou kn ow , a g a in, did h e k n o w t h at he wa s brea king into that tra iler? Yeah, he did that. It was for a dif fe re nt pu rp os e

. He wa sn ’t br e akin g in to ste a l a nythi ng

. He wa s br e akin g in t o s it in that closet. Remember , he broke in Sunday morning . He ha d two meat pies a nd I thi nk a jug of water, a ndso me thi ng to u ri nate in. He wa s p la nn ing on stay ing in that closet hidden fr om Sunday mo rn ing until sometime the following Monday

mornin g , w he n the g rand daug hte r w ou ld l e a ve a ndhe wo uldha ve the c ha nc e to c ome out and in some way

convince [t he victim] t o come home with him. S o, did he know he wa s brea

king i n t o d o t h at ? Yes, he did. All right. Did he know that he wa s
wa vin g the g un to . . . ke e p the g rand daug hte r o ut o f the int e ra c tio n b e tw e e n h [im] and his wife? Yes, he did. For the kidnapping , I think . . . the information I have[,] tells me that all he was interested in w as rec laiming . . . a nd rec onciling w ith his wife, and that the idea

of violating the law ne ver c rossed his mind.

I n rebuttal, the state called Dr. W illiam R. Sewell, a licensed clinical psy cholog ist with t he Western Mental He alth I nstitut e in Bolivar

. He testified that he interview ed the de fenda nt, whom he desc ribed a s respondin g “appropriately and dire ctly ,” in May

of 2001, two months after the crimes. It was Dr. Sewell’s opinion that at the time of the off enses, the de fenda nt “was c onscious of his act io ns

. Hi s tho ug ht p ro c e sse s w e re ratio na l. H e ha d ma de plans a ndwa s a c tin g on tho se plans . H e e ng aged in c e rt a in a c tiv ity ind ic a tin g that he c ou ld a pp re c ia te the wr on g fu lne ss o f h is actions.” D r. Sewe ll reca lled that the def endant r eporte d that he had enter ed the victim’s re sidence with a key

afte r consuming a twelve -pac k of beer

. He indicated that althoug h the def endant se emed anxious at the beg inning of the i nterview
, he relaxed as i t prog resse d, indicating that he did not have a mood disorder . Dr. Sewe ll testified that in his assessment, the defe ndant’s cog nitive functioning was ty pical of his ag e and there wer e no defic iencies that would indicate dementia. He stated that at the time of the of

fense s, the defe ndant “wa s rational . . . and w as knowledg eable of the wrong f u ln e s s

. ” D u r in g c r o s s

- e xa mi n a ti o n , D r

. Se w e ll a c k n o w le d g e d th a t " th e d e f e n d a n t[ ] . . .-5-

believed the offe nses to ha ve occ urre d on the same day as the e lection ar g ument. He e stimated that he me t w ith the de fe nd a nt f or a tot a l of app ro xima te ly

nin e ty min ute s.
During rebuttal, Ms. Thra sher de nied that she ha d tol d M s. Majewski that she a nd the de fe nd a nt w e re re c on c ili ng . Sh e a lso te sti fi e d th a t th e de fe nd a nt h a d n o tr ou ble na vig a tin g the ro ute on their trip to Florida

.
After the verdict, a mot ion for new t rial was filed. L ater , the def endant discha

rg ed his trial counsel a nd hired a nother attorney for the a ppeal. Thr oug h his new counse l, the defe ndant filed a n amende d motion for new tria l alleg i n g, among other thing s, that Dr. Eng um had provided incompetent assistanc e, that his due proc ess rig hts had bee n violated t here by , and that trial c ounsel ha d b e e n in e ff

e c tiv e in r e ta ini ng Dr . E ng um.

At the hea

ring on the motion for new trial, J erry Reede r and Jeffr ey

S m i t h , jurors at the de fe nd a nt’ s tria l, t e sti fi e d tha t the e xpe rt ps y c ho log ic a l pr oo f p ut o n b y the de fe nd a nt andthe state resulted in a “ draw ” on the subject. I t w as their opinion that the expert testimony did not aff ect the verdic t. Dr. Pamela A uble, a c linical neuropsy cholog ist who ex amined and te sted th ed e f e n dant af ter the tr ia l, te sti fi e d that the de fe nd a nt’ s fu nc tio nin g wa s impa ir e d d ue to “ dif fi c ult y in j ud g me nt i n h is ability to come to g ood conclusions t o fo rm rea sonable plans of action.” While desc ribing the defe ndant as not particularly anxious or depressed at the t ime of t he intervie ws, Dr. Auble believed that he wa s at the time of the offe nses and a g ree d with Dr. Eng um that the defe ndant did not intend to violate the law. She a lso testified, howeve r, that Eng um’s testimonythat the def endant c ould have had the r equisite intent for only some of the of

fense s did not “make a ny sense.”

Th e de fe nd a nt' s tria l c ou ns e l te sti fi e d that du e to the natur e of the state ’s pr oo f, it w a s h is opinion that the best defe nse would be to c halleng e the pr esenc e of me ntal elements re quired of the char g ed off

enses. He stated that he relied on Dr. Engum’s r eport, whic h indicated that the de fenda nt “wa s functioning with a diminis hed capa city to r eason such that he did not fully appre ciate or

even consider that his actions were potentially harmful to others or in violation.” Trial counsel c ontended that the written re port did not make distinctions among the various char g es. He e x plained that he

“ ne ve r g a the re d” fr om the re po rt that Dr

. En g um m ig ht t e sti fy that th e de fe nd a nt h a d th e re qu isi te mental state for

some of the char g es and not other s. Trial counse l stated that Dr. Eng um’s testimony that th e de fe nd a nt m ig ht h a ve ha d the r equ isi te me nta l in te nt a s to the c ha rg e s r e la tin g to M s. Fletc her w as a “ complete surprise.” He acknow ledg ed that he had questioned potential jurors a bout mental ca pacity d uring voir dire a nd that he addr essed the pe tit juryon the subject of diminished capa city during his opening statement.

I

Citi ng Ake v. Oklahoma, 470 U.S. 68 (1985), the defe ndant first claims that he was de nied du e pr oc e ss b e c a us e his me nta l he a lth expert, D r. Eric En g um, wa s in c omp e te nt t o te sti fy a t tria l. I n the a lt e r n a ti v e , h e c laim s th a t tria l c o u n s e l w a s in e f f e c ti v e f o r f a il in g to s e le c t a n d r e tain a competent psy cholog ist. The state asse rts that Ake doe s not recog nize the rig ht to the effe ctive-6-

assistance of a psy chiatrist or psy cholog ist a nd that trial counsel was not ine ffe ctive for reta ining Dr

. En g um.

I n Ake v. Oklahoma, the Supreme Court held that an ind i gen t d efendant’s rig ht to due proce ss had bee n viol ated by a denia l of funds to employ a psy chiatrist. I n Ake, a capital c ase, althoug h the def

ense w as insanity , neither the state nor the de fense offe red a ny expert testimonyon the defendant’s sanity

at the time of the of

fense . I d. at 72. The Supre me Court ruled that “ when a defe ndant has made a pre liminary showing that his sanity

at the time of the offe nse is likely to be a signifi c a n t f

a c to r a t t r ia l, th e Co n s ti tu ti o n r e q u ir e s th a t a St a te p r o v id e a c c e s s to a p s y c h iatr ist’s assistance on this iss ue if the de fenda nt cannot other wise af ford one .” I d. at 75. The Court re asoned that fundame ntal fairne ss would not be met if “a s a result of his poverty , a def endant is denie d the opportunity to pa

rticipate meaning fully ” in his trial. I d. at 76. The state is require d to take minimal steps “to assure that the defe ndant has a f air opportunity

to present his def

ense” and must provide

“ ‘the ba sic too ls of a n a de qu a te de fe ns e .’ ” I d. a t 76
, 77 (q uo tin g B ri tt v. No rth Caro lin a , 40 4 U .S. 226, 227 (1971))

.

I n Wa y e v. Mu rr a y , 8 84 F .2 d 7 65 , 7 66 -6 7 ( 4 Cir . 1 98 9) , the F ou rth Circ uit Cou rt of Ap pe a ls th reje cted a petitioner’s attempted constitutional claim of ineffe ctive expert assistance :

Whil e it is true that the ta c k the pe tit ion e r take s in thi s c a se princ ipa lly is to d isc la im ina de qu a te pe rf

orma nc e of

his a tto rn e y s o n th e on e ha nd , a ndc la im i na de qu a te perf ormanc e of his psy chiatrist on the other , we think t h at n o s uch rule should be inaug urate d, even in a

capital c ase. It will nearly alway s be possible in case s involving the basic huma n emotions to find one expert who disag ree s with another and to proc ure a n aff

idavit t o t h at ef

fe ct from the se cond per spective w itness. To inaug urate a constitutional or procedura l rule of an ineffec tive expert witness in lieu of the c onstitut ional standard of an inef fec tive attorney , we think, is going f urther than the fe dera l proce dural de mands of a f air trial a nd the constitution require.

See also Ha

rris v. Va squez, 949 F.2d 1 4 9 7 , 1518 (9 Cir. 1990) (“A llowing suc h battles of th
psy chiatric opinions during suc cessive c ollatera l challeng es to a death sentenc e would place fe dera l courts in a psy cho-le g al quag mire re sulting in the to tal abuse of the habe as proc ess.”) ; Sil ag y v. Peter s , 9 0 5 F

. 2 d 9 8 6
, 1 0 1 3 ( 7 Ci r

. 1 9 9 0 ) ( r e je c ti n g p e ti ti o n e r ’ s d u e p r o c e s s c laim r e g arding th competenc e of e x pert psy chiatrists at trial).

I n Alley v. State, 882 S.W .2d 810 (Tenn. Crim. App. 1994) , this court cited the Way e holding with approva l. I n that case , our court ruled that “te stimonyto demons t rate the incompetenc e or neg lige nce of

. . . experts is inadmissible if prese nted i n lieu of t he constit utional issue of ineff ective assistance of co u n s el .” Alley , 882 S.W .2d at 817. It is our conclusion, there fore , that the defe ndant’s cla im of ineffe ctive expert assistance is not a g round for relief

.
Unlike the cir cumstance s in W ay e, howe ver, the defe ndant also asserts a re lated cla im of ineffe ctive assistanc e of c ounsel. Our supre me court ha s stated that claims of inef fec tive assistance-7-

of c o u n s e l m a y

b e r a is e d o n d ir e c t a

p p e a l an d th e s a me s tan d ar d ap p li e s a s in p o s t- c o nviction proce eding s. See S t at e v. B urns, 6 S.W.3d 453, 461 n.5 (Tenn. 1999). When a de fenda nt seeks relief on the basis of inef

fec tive assistance o f co u n s el
, h e must first establish that the servic es rende red or

the advice g iven was be low “the r ang e of c ompetence demande d of attorne y s in criminal

case s.” B axter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) . Second, he must s h o w that the de fi c ie nc ie s “ a c tua lly

ha d a n a dv e rs e e ff

ect on the de fe ns e .” Str ic klandv. Was hin g ton , 4 66 U. S. 668, 693 (1984). Should the defendant fail to establish either fa ctor, he is not entitl ed to re lief. Our

su pr e me c ou rt

de sc ri be d th e sta nd ardof re vie w a s f

oll ow s:

B e c a u s e a [d e f

e n d a n t ] m u s t e s t ab l i s h b o t h p r o n g s o f t h e t e s t , a fa ilu re to prove e ither def

iciency or prejudice provides a suffic ient basis to deny relief on the ineffe ctive assistanc e cla im. I ndeed, a court need not a ddress the c omponents in any particula r orde r or e ven addr ess both if the def endant makes an insuffic ient showing of on e c omp on e nt.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of ineffe ctive assistance of counse l, the defe ndant is not entitled to the benefit of hindsight, may not second-g uess a r easona bly based tria l strateg y , and cannot criticize a sound, but

unsucce ssful, tactica l decision made during the course of the proc eeding s. Adkin s v. State, 911 S.W. 2d33 4, 34 7 ( Te nn . Crim. Ap p. 19 94 ). Suc h d e fe re nc e to the ta c tic a l de c isi on s of c ou ns e l, howev e r , ap p li e s o n ly if th e c h o ic e s ar e ma d e a f te r a d e q u a te p r e p ar a ti o n f o r th e c a s e

. Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992) . The de fenda nt bear s the burden of proving his claims by

clea r and c onvincing evidenc e. See B urns, 6 S. W .3d at 461 n.5; State v. Wil liam Makra nsky , No. E2000-00048-CCA-R3-CD (Tenn. Crim. App., at Knoxvi lle, J une 28, 2001); see also Tenn. Code A nn. § 40-30-210( f) ( 1997).

On appe al, t he finding s of fa ct made by the trial court are conclusive a nd will not be disturbed unless the evide nce c ontained in the rec ord preponde rate s ag ainst them. Br ooks v. State, 756 S.W .2d 288, 289 (Tenn. Crim. App. 1988) . The burde n is on the d ef en d an t t o show that the

e v i d e n c e p r e p o n d e r a t e d a g a i n s t t h o s e f i n d i n g s

. C l e n n y v

. S t a t e , 5 7 6 S

. W

. 2 d 1 2
, 1 4 ( Te nn . Cr im. App. 1978). The cre dibilit y of the witnesses and the weig ht and value to be aff orded the ir testimony

are questions to be resolved by the trial court. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990) ; Bates v. State, 973 S.W .2d 615, 631 (Tenn. Crim. App. 1997) . When review ing the application of law to those fac tual finding s, howeve r, our revie w is de novo, and the tria l court' s conclusions of law

are g iven no presumption of cor rec tness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001) ; see also State v. Eng land, 19 S.W.3d 762, 766 (Tenn. 2000).

At the close of

the motion for new trial hearing, the trial court found as follows reg arding the de fe nd a nt’ s c la ims of

ine ff e c tiv e a ssi sta nc e a s to Dr . E ng um andtr ia l c ou ns e l:

[T]hi s [c ]ourt w ou ld f

indthat th e me nta l he a lth sp e cia lis t w a s n ot i nc omp e te nt. Ma y b e s o me w h a t c o n tr a d ic to r y , b u t at th e s a me ti me , th e d e f e n s e te a m, in cluding-8-

Do c tor [E]ng um, ha d a

dif fi c ult tim e in expla ini ng the be ha vio r o f [the de fe nd a nt] in some way that would fit into some diminis hed capa city in my opinion. He knew he wa s g oin g the re . H e ’s c le arl y a dmi tte d th a t. The diff ere nce is did he know what he w as g oing to do or did he know he wa s violating the law. Well, it’s just hard for t he defense psy cholog ist to ex plain it any oth e r w a y a ndI do n’ t th ink

that wa s ine ff

e c tiv e on his pa

rt no r i nc omp e te nc e on his part to sort of c hang e. May be it wasn’t c lear

to defe nse counsel exactly what he w as g oin g to s a y , b ut c e rt a inl y did n’ t app e ar t o me to b e inc omp e te nt. The a lleg ation in gr ound two is that c ounsel was ineffe ctive in not choosing [a] competent psy cholog ist. W ell, he didn’t know that he mi g ht have ha d a proble m until the trial testimony , so he ca nnot held to be ineff ective f or not choosing someone prior to that. A ndthe re ’s no thi ng to i nd ic a te to the c ou rt that he wa s ine ff

e c tiv e in not asking for a

contin u an ce t o get up m ore e valuations or for a mistrial or in any other way salvag e the c ase. N ot incompetent on that g round.

Parenthe tically , the testimony of the two jurors during the hearing on the motion for new trial should not have bee n permitted. See H utchison v. State, 118 S.W .3d 720, 740 (Tenn. Crim. App. 20 03 ). Te nn e sse e Rul e of Ev ide nc e 60 6 p ro vid e s in pe rt ine nt p art a s f oll ow s:

I nquiry I nto Validity

of Ve rdict o r I n dictment. Upon an inquiry into the validity of a ve rdict or indictment, a juror may not testify

as to any

matter or statement occ urring during the cour se of the jury ' s deliberations or to the eff ect of anything upon a ny

juror' s mind or emotions a s influencing that juror to assent to or dis se nt f ro m th e ve rd ic t or

ind ic tme nt o r c onc e rn ing the jur or ' s me nta l pr oc e sse s, except that a juror may

testify on the question of whe ther e x trane ous prejudicial information was imprope rly broug ht to the j ury ' s attention, whether any outside influence was improper ly broug ht to bear upon a ny juror, or wh et h er t h e jurors ag ree d in advanc e to be bound by a quotien t o r gam b l ing ve rdict without further discussion; nor may

a juror’ s aff

idavit o r evidence of a ny statement by

the juror

conce rning a matter

about which the jur o r wo u ld be pre cluded f rom testify ing be

re c e ive d f or the se pu rp os e s.
Tenn. R. Evid. 606(b). In State v. Bla ckwe ll, 66 4 S

. W

. 2 d 686 (Tenn. 1984) , our supre me court adopted F eder al Rule of Evidenc e 606(b) , which it described as a codification of Tenne ssee law , as to the admissibili ty

of juror te stimonywhen the ve rdict’s va lidityis under c halleng e. The Tenne ssee rule of e vidence , which came into effe ct in 1989, i s i d enti cal to the f eder al rule. N one of the exceptions to the rule apply here . This court ca nnot consider the te stimonyon appellate revie w.
More importantly , the evidenc e supports the post-conviction court’s determination that trial counsel wa s not ineffe ctive for reta ining Eric Engum to provide expert assistance in this case. The

rec ord re flec ts that Dr. Eng um is a licensed c linical psy cholog ist with si g nificant e x perie nce. D r. Pamela Aub le
, h ir e d b y

th e d e f e n d a n t f o r th e mo ti o n f

o r n e w tria l, te s ti f

ie d th a t D r

. E ng um’s education and training wer e “quite satisfactory .” Prior to re taining D r. Engum
, t ri al counse l got-9-

favor able r efe renc es and de termined him to be “a n ex p er i en ce d witness with a long list of

c re de nti a ls. ” Th a t the re ma y ha ve be e n s ome c on fu sio n b e tw e e n tria l c ou ns e l a ndDr . E ng um w ith reg ard to the c ontents of his written re port versus his trial testimonydoes not nec essarily mean that trial counsel wa s ineffe ctive. F urthermor e, it is the dut y of t he appellant to prepa re a complete a nd

acc urate rec ord on appe al. Tenn. R. App. P. 24(b). B eca use Dr. E ng um’s wri t t en report is not i n c l u d e d i n t h e r e c o r d o n ap p e a l
, t h i s c o u r tc a n n o tc o m p ar e i t s c o n t e n tt o h i s tr i a l t e s t i m o n y. F i n a l l y, throug h Dr. Auble , the def endant pr esente d proof at t h e m o tion for new trial hearing that Dr. Eng um’s state-of

-mind testimonydid not “make any sense.” No furthe r explanation was g iven. As observe d by the t rial court, the defense team “had a di fficult ti me in explaining the beha vior of [the defe ndant] in som e way

that would fit into some diminished ca pacity .” Perha

ps there w as a r eason for that. In any

event, the de fenda nt is not entit led to relief on this ground.

II

Next, citing Tenne ssee Rule of E vidence 403, the defendant a sserts that the state’ s attorney

c omm itt e d p ro se c uto ri a l mi sc on du c t by c ro ss- e xami nin g Dr . E ng um r e g ard ing ve rd ic ts r e a c he d in oth e r c a se s in wh ic h h e ha d te sti fi e d a ndhis c on ne c tion wi th th e B oa rdof Di re c tor s o f E a st Te nn e sse e F e de ra l D e fe nd e r S e rv ic e s. Th e state arg ue s th a t th e c ro ss- ex ami nat ion wa s p ro pe r t o show bias or pre

judice.

Rul e 40 3 o f the Te nn e sse e Rul e s o f E vid e nc e pr ov ide s a s f oll ow s:

Al tho ug h r e le va nt, e vid e nc e may be e xclu de d if

its pr ob a tiv e va lue is

su bs ta nti a lly

ou tw e ig he d b y

the da ng e r o f u nf

a ir pr e jud ic e , c on fu sio n o f the iss ue s, or misleading the jury , or by considerations of undue delay
, wa s t e o f time, or needle ss presentation of cumulative evide nce.

Tenn. R. Evid. 403. Gene rally , the proprie ty , scope, a nd control of c ross-examination are left to the sound discretion of the trial court. Davis v. State, 186 Tenn. 545, 212 S.W .2d 374, 37 5 (1 9 48). Appellate c ourts cannot inter fer e with the exerc ise of that discretion absent a clea r and plain abuse

. See State v. F owler, 213 Te nn. 239, 373 S.W .2d 460, 464 (1963); Coffee v. State, 188 Tenn. 1, 4, 216 S.W .2d 702, 703 (1948).

At trial, the state cross-e x amined Dr. Eng um r eg arding his prior court appea ranc es as an
e xpe rt wi tne ss. Th e a ssi sta nt d ist ri c t a tto rn e y

qu e sti on e d h im r e g ard ing tw o s pe c if ic prior c a se s in which the defe ndant i n those case s had been convicted. The prose cutor a lso questioned Dr. Eng um g ener ally reg arding the number of

first deg ree murder case s in which he ha d testified and c onfirmed that he had be en re tained by the defense each time. Wit h reg ard to Fe dera l Def ender Service s, Dr. En g um a c kn ow led ge d th a t he wa s o n th e B oa rdof Di re c tor s “ fo r an o rg a nizatio n th a t w or ks wi th defe nding pe rsons cha

rg ed with fe dera l crimes.”

At the close of

the hea ring on the def

endant’ s motion for new trial, the trial court made the fo llo wi ng fi nd ing s a s to thi s c la im:-10-

I don’t think it was a violation of due proc ess to ch al l en ge the credibility of the psy cholog ist as a defense hired g un and that may have be en what the approa ch wa s

. . . . [I ]t se e ms t o me the re mig ht h a ve be e n a c ha lle ng e onthe rel evan cy of tho se verdic ts at trial, but I

don’t think the conduct of c ounsel rose to prose cutorial misconduct nor denia l of due proc ess . . . .

I n our view, the re w as no p ro s ecutorial misconduct during the cr oss-examination of Dr. En g um. Con sid e re d a s a wh ole , th e qu e sti on ing ind ic ate s that the pr os e c uto r w a s a tte mpt ing to demonstrate bia s on the part of the witness, a c ommon and acc epted c ross-examination technique. That two of the c ases in which he testified re sulted in convictions would not have bee n rele vant and

wo uldha ve me ri te d e xclu sio n. Se e Te nn . R. Evid . 4 01 , 4 02 . N e ve rthe le ss, it i s a pp are nt tha t th is testimonydid not affe ct the re sults of the trial. The err or qualifies a s harmless. See T enn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

I n support of his a

rg ument reg arding the admissibili ty of Dr. Eng um’s work wi t h Fe d era l Def ender Service s, the defe ndant cites State v. Hine s, 919 S.W .2d 573 (Tenn. 1995) . I n Hines, the defe ndant was c onvicted of felony murder and sente nced to de ath. During the sentenc ing pha se, the state’s attorney cross-e x amined two defe nse ex perts as to their work with the Capital Case Resourc e Center a nd, in doing so, stated that the “‘primary motivation or primary

rea son for .

. . exis tence [of the Center w as] to keep somebody from g oing to the electric chair.’” 919 S.W .2d at 580. During closing , the prosecutor arg ued that the C apital R esourc e C enter ’s “‘sole function in life [was] to fight ag ainst the death penalty

reg ardle ss of the circumstances.’ ” I d. On appeal, our hig h court a ffirme d the sentenc e of death. I n doing so, it obse rved that the comments of the state’s attorney wer e imp ro pe r e xpre ssi on s o f o pin ion no t su pp orte d by e vid e nc e in the re c or d. Ou r s up re me c ou rt he ld that when the c omments came c lose to a denia l of due proce ss,” the impropriety was c ured by

the trial court’ s diligenc e. Our high court also held t hat t he prosecutor’s state ments did not result in an imp ro pe r c omm e nta

ry on the de fe nd a nt’ s e xer c ise of his ri g ht t o c ou ns e l:

A violation of defe ndant’s rig ht to counsel occ urs when a prosec utor’s examination of a

witness or ar g ument seeks to pena liz e the de fenda nt for exerc ising his c on sti tut ion a l r ig ht. Th e c ro ss- e xami natio n o f [the de fe ns e e xpe rt s] in thi s c a se soug ht to impeach the two witnesse s by establishing pro-def endant bias on the ir part beca use they had wor ked with the Resourc e Center in the past, and by

attacking the

re lia bil ity of the inf orma tio n o n wh ic h th e y

ha d b a se d th e ir

op ini on s b e c a us e so me of it h a d b e e n o btaine d f

ro m th e Re so ur c e Ce nte r. Th is l ine of c ro ss- e xami natio n d id

no t r ise to the le ve l of pe na lizin g de fe nd a nt’ s ri g ht to c ou ns e l by a sk ing the jury

to make a neg ative inferenc e from the def endant' s exercise of this rig ht. The prose cutor soug ht to attack, not the def endant’ s use of a n att orney or the fa cilities of the Resource Center, but i n h i s view, the r eliability and impartiality

of the witnesse s beca use of their attitudes toward c apital punishment and the bias of the information on which their opinions wer e, at lea st in some part, based.

I d. at 580.-11-

The c oncerns raised in Hine s, howeve r, do not control the c ase at issue. Here
, the prosec utor

was c ross-examining Dr . Eng um reg arding his professional tra ining. His a ssociation with Fede ral Def ender Service s was included on his c urriculum vitae. The prose cutor did not make a ny persona l commentary

on the association and did not make re fer ence to fac ts no t i n t ro d u ce d in evidence

. Ra the r, the c ro ss- e xami natio n w a s d ir e c te d to wa rde sta bli sh ing a bia s on the pa

rt of Dr . E ng um i n favor of the de fense

. Hines is disting uishable. I n our view, the defe ndant is not entitled to relief on this iss ue.

Acc ording ly , the judg ments of the trial c ourt areaff irmed.

___________________________________ GARY R. WADE, PRES I DING JUDGE