# FILED
December 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER SESSION, 1998

SYLVESTER SMITH, ) ) No. 02C01-9801-CR-00018 Appellant ) ) SHELBY COUNTY vs. ) ) Hon. Bernie Weinman, Judge STATE OF TENN ESSEE, ) ) (POST-CONVICTION) Appellee )
For the Appellant : For the Appellee : William P. Redick, Jr. John Knox Walkup P. O. Box 137 Attorney General and Repor ter Whites Creek, TN 37189 Amy L. Tarkington Peter D. Heil Assistant Attorney General P. O. Box 40651 Criminal Justice Div ision Nashville, TN 37204 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
Thomas Hoover Asst. Attorney General Criminal Justice Comple x Suite 301, 201 Poplar Street Memphis, TN 38103

OPINION FILED: REVERSED; CONVICTION VAC ATED; REMANDED FOR N EW TRIAL
David G. Hay

es Judge1 Contained wi thin t he appellant ’s six gener

al issues ar

e ninety -one plus al legati ons of error set f

orth as sub-i ssues. 2 OPINION

In this capital case, the appel lant, Sylvester Sm ith, appeals as of right the judgmentof the Criminal Court of Shelby County denying his

petition for post-convic tion relief.In 1991, the appellant was convicted of felony murder, and, following a separat e sentencing hearing, was sentenced to death by electrocution. The appellant’s conviction and sentence were affirmed ondirect appeal by th e Tennessee Sup reme Court. See State v. Smith , 893 S.W.2d 908 (Tenn. 1994), reh’g denied , (1995), cert. denied , 516 U.S. 829, 116 S.Ct. 99 (1995).

The appellant filed the instant petition for post-conviction relief on April 18, 1995. An a m ended petition was filed on Sept ember 16, 1996. A hearing w as held on September

24-26, 1996. On May

19, 1997, the post-conviction court entered an order denyin g the ap pellant

post-c onviction rel ief.
On appeal, the appellant raises the following issues: 1 I. Whether the appellant was d enied his constitutional rig hts at sentencing when the trial court limited the testimony of his sole mitigation witness; II. Whether the appellant was denied his cons titutional right

to trial by an impartia l jury; III. Wheth er constitutional error s not addressed by the post-conviction court entitle t he appel lant to r elief; IV. Whether the appellant was denied his cons titution al rightsduring the guilt and sentencin g phases by the prosecution’s failure to provide the defense exculpatory and impeachment materials; V. Whether the appellant received the effective assistance of counsel a t trial and on appeal; VI. Whether the cumulative eff ect of all erro rs violated the appellant’s constitutional rights.3 In this appeal, the State concedes error at thesentencing phase of this capital trial. We agree. Moreover, after careful review o f the record, we also find er ror at the guilt phase of the trial. Ac cordingly , the appellant’s conviction and sentence are vacated. This cause is remanded for a new trial.

Background

The proof, as s et f orth in the supreme court’s decision, State v. Smith , 893 S.W.2d at 911-912, established that Mrs. Olive Brewer, an elderlywidow, lived alone in a house o n Wincheste r Road in Memphis. On Sunday, July 2, 1989, Mrs. Br ewer attended church, atelunch with a friend, and went to the gr ocery store before return ing home. Mrs. Brewer w

as wearing a diamond ri ng when she left the restaur ant.

Later that evening, Memphis Police Officer Steve Perry noticed a vehicle stuck in the mud in the woods next to Mrs. Brewer’s house. The vehicle’s en gine was still
warm and it appeared obvious that someone had been trying to getthe car out of the mud. Officer Perry also observed a stereo and television set on the g round beside the vehicle and a television stand on the front seat of the car.

Officer Perry discovere

d that the vehicle was r

egistered to Mrs. Brewer w ho lived next do or and he and another officer decided to check Mrs. Brewer ’s residence. The two officers found the back door of Mrs. Br ewer’s house ajar. A

search of the house led to the discovery of Mrs. Brewer’s body lying in one and one-half to two inches of bloody water in the bathtub. A bl ue blanket was over her face and her dress was pulled above her

hips. Mrs. Brewer

had been beaten over her entir e body and her throat was lacerated.2 The defense team consisted of Robert Jones (l ead counsel), Carolyn Watkins (cocounsel), an d two staff investi gators. 4 In the front bedroom, the officers discovered large bl oodstains at the head and foot of the bed. Strips of torn sheet and a rope were lyin g on the floor. One of the stripswas blood soaked. A used condom was found in the bedroom closet . In the kitchen, the officers found evidence of blood on a k nife, an d, in the living room, they discovered another knife in a chair.
Fingerprints

on the bathroom sink and on the fro nt hood of the victim’s car matched the appellant’s prints. The appellant’s sister identi fied the knife found in the living room as resembling one of her ow n that had been missing. The appellant’s niece testified that the appellant had told her that “he cut this lady’s throat and put her in a bathtub full of water.”
Shortlyafter the murder, the appellant off ered to sell Willie Cox a lady’s diamond ring and three necklaces. The appellant informed Cox that the jewelry had come “out of the lady’s house on Winchester.” He continued to tell Cox that he had kil led the
woman because “he don’t leave no witnes ses.” He then described cutting her throat, tying her hands, and putting her in the bathtub. He also stated that he had placed an electrical appliance in the bathtub with her.

When confronted about themurder, approximately one year later, the appell ant denied any knowledge of the murder, denied knowing the vic tim, and denied ever being in her house. He also denied that the fingerprints were his. The Shelby County Public Defender’s Office was appointed to represent the appellant. 2
During the guilt phase of his subsequent trial, the appellant elected not to te stify
nor did he offer any evidence. Based on the evidence present ed by the State, the jury found the appellant guilty of felony murder committed during the cours e of a rob bery.5 At the sentencing phase of the trial, the State introduced proof that the appellant had previously been conv icted ofrobbery with a deadl y weapon, assault w

ith intent to commit first degree murder, and aggravated rape. Photographs were also introduced depicting numerous bruises and the fatal wounds on the victim’s body. The pathologist testified that the victim woul d have been alive at the time t h at the water entered her lungs and that she c ould have lived hours after the lacerations to her throat were inflicted.

The defense introduced the testimony of Dr. Hutson, a clinical psychologist w

ho had administere

d the Stanford- Binet Intell igence test to the appell ant. Th e tes t indicated that

the appellant had an IQ of 54. School records showed that in the third grade the appellant had an IQ of 72, and of 67 in the fifth grade. A parole evaluation described the appellant as having mild to moderate impairment in intellectual function. The psychologist testified that the appellant would be classified as menta lly retarded, that the appellant’s intellectual capacity was diminished, and that this impairment was a mental defect.

The jury found that the app ellant ha d previously been conv icted of a violent felony, the murder was especially heinous, atrocious, or cruel in that it involved torture
or depravity of mind, and that the murder was committed i n the commission of another felony. Finding no mitigati ng factors suf ficiently substa ntial to outweigh the statutory aggravating

circumstances, the jury sentenced the appellant to death by electrocution.

On direct appeal to the Tennessee Supr eme Court, the court, under its mandate in State v. Middlebrooks , 840 S.W .2d 317 (Tenn. 1992), cert. denied , 510 U.S. 124, 114 S.Ct. 651 (1993), found that the jury’ s consideration of Tenn. Code Ann. § 39-13- 204(i)(7) was improper. See Smith , 893 S.W.2d at 924-925. Nonetheless, the court held that the error in apply ing this factor

was harmle ss in light o f the two remaining valid aggravating ci rcumstances. Id

.3 Again, the appellant’s petition for po st-conv iction relief wa s filed on A pril 18, 1995

. Because it was fi led pri or to May 10, 1995, it is governed by

Tenn. Code Ann. § 40-30- 101 et seq. ( repealed

1995), rat her than the revised Post-Convicti on Procedure Act, Tenn. Code Ann. § 40- 30-210 et seq. (1997). Under the current statute, the standard is “clear and convincing evidence .” Tenn. Code A nn. § 40-30-210(f). 6 Post-Conviction Hearing

In post-conviction proc eedings, the appellant must pr ov e the allegations contained in his petition by a pr eponderance of the evidence. 3 State v. Ker ley , 820 S.W.2d 753, 755 (Tenn . Crim. App.), perm. to appeal denied , (Tenn. 1991); Oliphant
v. State , 806 S.W.2d 215, 218 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1991). Findings of

fact and conclusions of law made by the post-conviction court are given the weight of a juryverdict, and, this court is bound by th ose findings unless the evidence contained in the record prep onderates otherwise. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990); Teague v. State , 77 2 S .W. 2d 932, 934 (Tenn. Crim. App. 1988), cert. denied , 493 U.S. 874, 110S.Ct. 210 (1989). This cour t may not

reweigh
or reevaluate the evidence or substitute its inferences for t hose dra wn by the postconviction court. Questions concerning the credibi lity of witnesses and the weight and value to be given their testimony are for resolution by the post-conviction court. Black v. State , 794 S.W.2d 752, 75 5 (Tenn. Crim. App. 1990).

I. Limitation of M itigating Eviden ce during Sentencing P hase
Th e appella nt contends that the trial cour t committed error by li miting the testimony of

the clinical psycholog ist, Dr. Hutson, durin g the sentencing phase of the trial with regard to mitigating evide nce. The appellant concedes that thi s issue was predetermined by the supreme c ourt in Smith , 893 S.W.2d at 921-922. However, he argues that, in light of subsequent decisions by the Tennessee Supreme Court in State
v. Odom , 928 S.W.2d 18 (Tenn. 1996) and th is court in State v. Sledge , No. 02C01- 9405-CR-00089(Te nn. Crim. App. at Jackson, Nov. 25, 1997), this issue shoul d not be treated as previously determined.4 We note that both Odom and the inst ant case invo lve both the same trial j udge and the sam e clinical psyc hologist. 7 In Odom , 928 S.W.2d at 27-28, mitigation evidence w as limited by the trial court regarding the famil

y backg round of the defe ndant as t estified to by the clinic al psychologist because the trial c ourt rule d the inf ormatio n was hears ay. 4 The supreme court under the provisions of Tenn. C ode Ann . § 39-13-204(c) held that the hearsay evidence was relevant and, ther efore, admissible. As such, the error w as notharmless. Odom , 928 S.W.2d at 28.

In Sledge , No. 02C01-9405 -CR-0 0089, the trial court rej ected the proffered testimony of a Psychological Chaplain II, employed by the Department of Correction,
as an expert on the defendant’s remor sefulness based upon his self-dev eloped testing procedure. However, the court acknowledged his ability to test ify to his personal observations

of the defendant as a pastoral counse lor. Id

. During a hearing out of the jury’s presence, the witness related his knowledg e of pertinent background informati on of the defendant and his observations of t he defendant in a prison envir onment. Id. The trial court refused to all ow the witness to testify fur

ther and dis missed him. Id. The following d ay, the trial court recanted its ruling and decided to al low the witness to testify regardinghis personal observati ons arising out of his couns eling and interviews with the defendant; how ever, the witness could not be found. Id. This court, citing Odom , held the refusal to allow the witness to testify constituted rev

ersible er ror. Id.

In the matter before us, at the appellant’s trial, Dr. Hutson testified that he only spoke with the appellant for a “few minutes” and administered the IQ test. Dr. Hutson stated, “I really didn’t go into any background detai ls or anythi ng of that nature.” Contrary to the appellant ’s assertion that Odom and Sledge present a “change in the law,”we conclude that

this issue was prev

iously determined by the supreme court on direct appeal. See Smith , 893 S.W.2d at 92 1 -922. Accordingly, because a new constitutional right had not been created, this issue m ay not be relitigated within the5 He contends that either the prosecu tion, defense counsel, or the court should have questioned t he jurors reg arding:

(1) whether the jurors would be able to consider m itigating evidence and a life senten ce if they fou nd the de fendan t guilty of first-deg ree m urder; (2) whether the jurors would be able to consider m itigating evidence and a life sentence after

first findi ng the defendant guilt y of fi rst degree murder and then finding beyond a reasonable doubt the existence o f one or more statutory aggravati ng circumstances; (3) whether the jurors were capable of under standing what

mitigati ng circumstances mean; (4) whether the jurors were capable of under standing t he differ

ent burdens of proof for t he prosecuti on in the pr oof of aggravat ing cir cumstances versus that f or the defense i n the proof of the mitiga

ting ci rcumstances; (5) whether the jurors were capable of under standing t heir obl igati ons concerning the diff erence between th e unanimity requirement of the jury’ s verdict in the determinati on of aggravat ing cir cumstances versus that i n the determinat ion of the mitigating cir

cumstances; (6) whether the jurors were capable of t he “weighi ng” of the aggr avating and the mitigati ng circumstances, e. g., that it i s a qualit

ative, not a quantitativ e analysi s; and (7) whether the jurors were capable of und erstanding the instructions with regard to non-enumerated miti gating ci rcumstances.
8 post-convictioncontext. See Tenn. Code An. § 40-30-111,-112; Tenn. Code Ann. § 40-30-105.
II. Superficial Jury Selection
Next, the appellant

contends that the trialcourt and defense counsel depriv ed him of an impartial jury based upon volumes of research by Dr. Michael Blankenship regarding jurors’ lack of comprehension of

jury instructions . Moreover, he argu es that the trial court should ha ve permitted ind ividual voir dire beca use of the fi ndings of Dr. Blankenship’s studies. 5

The State c ontends that any issues regarding jury selection were previously determined by the supreme court, see Smith , 893 S.W.2d at 914-16, or have been waived pu rsuant t o Tenn. Code Ann. § 40-30-112(b)( 1) and (2). We agree with the State’s position on wai

ver. These issues could have been raised by the appellant on direct appeal. M ore over, the appellant has failed to provide a basis for a rebuttable presumption overcoming the wai ver of these issues. Thus, they ar e inappropriate

for our determination of post-conv iction relief. This issue is without merit.6 Allegations of ineffective assistance of trial counsel raised under this heading are add ress ed ge nera lly unde r the h ead ing of ineff ective ass istan ce of coun sel. 9 III. Issues Not A

ddressed by the

Post-Convictio n Court 6

The a ppellant asks this court to review the following errors he alleges were committed by both the trial court and the prosecution: By the trial court: 1. The trial court erred by not sua sponte

t aki ng the precautions necessary to make a determination of the appellant ’s competency to stand trial; 2. The trial court erred by making repeated dis plays o f h ostility toward and bias against the defense; 3. The trial court e rred by li miting the testimony of the psychologist during the pretrial hearing o n the issue of whether th e appe llant is mentally retarded; 4. The appellant is not eligi ble to be sentenced to death because he is mentally retarded; 5. The trial court erred by re fusing to consider and rule on pretrial motions; 6. The tri al court e rred in its charge to t he jury; 7. The trial court gav e erroneous and misle ading definitions of “reasonable doubt;” 8. The trial court erred by overruling defense objec tions to the prosecution’s referring to the deathpenalty as a “necessary law” during the voir dire; 9. The trial court erred by d enying the defense an opportunity to make an offer of proof at the close of the “Batson hear ing” during voi r dire; 10. The trial court erred by employ ing leading question s and excusing for cause pro spective j urors who we re oppos ed to the death pe nalty; 11. The trial court erred by overruling the defense motion for continuance based on the ne ed t o investigate excu lpatory evidence w ithheld by the prosecution until the first day of trial; 12. The trial court erred by allowing the introduction of irrele vant , cumulative, and/or prejudi cial evidence; 13. The trial court erred by giving instruc

tions that relieve the

prosecution of its burden of

proving all elements

of the offense beyond a reasonable doubt; 14. The trial court erred by overruling defense objection to prosecutional misrepresentation in its penalty phase closing argument. By the prosecution: 1. The prosecution failedto disclose evidence to which the appellant

was entitled before, during, and after the trial. 2. The prosecution possessed information excul patory to thedefendant concerni ng Wil lie Lee Co x. 3. The prosecution failed to turn over to the defense other evidence exculpatory to the defense;10 4. The prosecution’s arguments and conduct misstated or caused misstate ments of facts an d law and m isled the jury; 5. The Distri ct Attorn ey’s Off ice for Sh elby Count y has no fo rmal poli cy, standards, or crit eria for selecting defendants who will be subjected to capital prosecution.
Addition ally, the appellant makes ei ght general challeng es regarding the constitutionality of Tennessee’s death penalty statut es.

The appellant’s allegations raised under

these subsections must be consi dered waived for failure toprovidecitation to the record, ex planation, argument or cita tion to any legal authority. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim . App. R. 1 0(b). This court will not speculate as to the argument supporting these allegations, no r wi ll this court de lineate the issues f or the app ellant f rom an ext ensive rec ord. Addi tionally, issues specifically raisi ng allegations of improper jury selection , jury i nstructions, prosecutorial misconduct duringclosing argument, and our supreme court’s review of Tennes see’s death penalty statutes hav e been addressed on direct appeal by our supremecourt. See Smith , 893 S.W.2d at 914-916, 920-921, 922-923, 92 4-927. Issues that have been previously determined on direct appeal cannot support a petition forpost-conviction rel ief and are, therefore, excluded. See Tenn. Code Ann. §40-30- 111,-112 (a); State v. Denton , 938 S.W.2d 373, 377 (Tenn.1996); House v. State , 911 S.W.2d 705, 710 (Tenn. 1995), cert. denied , 517 U.S. 1193, 116 S.Ct. 1685 (1996). Finally, we note that the majority of the appellant’s exhaustive list of allegatio ns have already been raised elsewhere i n the petition a nd o n appeal, e.g. , alleged Brady violations, competency , mental retardation.
Accordingly, all

unsupported allegations r aised by the appellant are waived.

IV. Alleged Brady/Giglio Violations11 The appellant alleges that the State withhe ld excul patory evidence thereby viol ating Brady v. Maryl and , 373 U.S. 83, 83 S.Ct. 1194 (1963). Specific ally, th e appellantarguesthat (1) theState withheld the statement of Alice Cooper and (2) the State failed to disclos e an all eged deal with Willie Lee Cox in exchange for his testimony.

In Brady , 373 U.S. at 83, 83 S.Ct. at 1194,the Sup reme Court held that the prosecution has a duty to furnish the defendant with exculp ato ry evidence relati ng either to the defendant’s guilt or innocence or to the potential punishment that may be imposed. See also Bell v. State , No. 03C01-9210-CR-00364 ( Tenn . Crim. App. at Knoxville, Mar. 15,1995), perm. to appeal denied , (Tenn. Aug. 28, 1995). Exculpatory evidence includes information or statement s of witnesses which

are favorable to the defendant. See, e.g. , McDowell v. Dixon , 858 F.2d 945 (4th Cir. 1988) , cert. denied , 489 U.S. 1033, 109 S.Ct. 1172 (1989); State v. Goodman , 643 S.W.2d 375, 379-380 (Tenn. Crim. App . 1982). Additionally, under Giglio v. United S tates , 405 U.S. 150, 154-155, 92 S .Ct . 763, 766 (1972), exculpatory evidence includes information which
can be used for impeachment purposes only

. See also Davis v. State , 823 S.W.2d 217, 218 (Tenn. Crim. App. 1991). Failure to reveal exculpatory

evidence violates due process where the evidence is material either to guil t or to punishment, irrespec tive of the good faith or bad faith of the prosecution. Brady , 373 U.S. at 87, 83 S.Ct. at 1196- 1197. In order to determine the materialit y of undisclosed information, the r eviewing court must ascertain whether “in [the] absence [of the information] [the defendant] received a fair trial, understoo d as a trial resulting in a verdict wor

thy of confidence.” Kylesv. Whitley , 514 U.S. 419, 434, 115 S.Ct. 1555, 1566 (1995). See also State v. Edgin , 902 S.W.2d 387, 390 (Tenn.), as amended on reh’g , (1995). Thus, in order to prove a Brady

violation, a defendant must s how the “the favorable evidence could
re asonably be taken to put the whole cas e in such a different light as to undermin e confidence in the verdict.” Id.12 In order for this court to find a Brady violation, four requirements mu st be satisfied: (1) The defendant must have requested the information (unless the evidence is obviously ex culpatory, in whi ch case the State is bound to release the information whether requested or not); (2) The State must have suppres sed the information; (3) The information must have been fav orable to the accused; and (4) The information must have been material. Edgin , 902 S.W.2d at 390. T he appella nt b ears the burden of demonstrating the elements of this claim by a preponder ance of the evidence. See Smith v. State , 757 S.W.2d 14, 19 (Ten n. Crim. App. 1988).

At the post-conviction hearing, Carolyn Watkins, appellant’s def ense counsel at trial, testified that she oversaw the preparation of the pretrial motions, includinga Brady moti on and a Giglio

motion regarding discovery of exculpatory information. These motions were not heard by the trial court because they were not set in advanc e of the trial. But see , infra, Section V, Ineffective Assis tance of Counsel. Both Watkins and Assistant

District Attorney

General Harris, lead c

ounsel for the State, testified that the defense had “open file discovery” in which she took notes,looked through the file, and copied several it ems. Watkins was satisfied that she h ad received everything in discovery. Harris testified that nothing was taken from the file or hidden from Watkins.
A. Alice Cooper’s Statement In Ms. Cooper’s statement to the police containedwithin a supplemental offense report, she advise

d that she had overheard four young m e n, be tween nineteen and twenty-fi ve years old, across the street from the victim’s home talking about killi ng “that old bitch.” Two ofthe boys claimed they ha d killed her in the bed and pl aced her body in the bathtub. Ultimately, the police identified one of the individuals. The prosecutor provided the defense with a summary of this statement fo llowin g jury sel ection but7 JONES: Your Honor, thi s is defi nitel y exculpat ory in formation. We haven’t had an opportunit

y to check out . We would ask the Court to allow us t ime to check this out before we go forward. COURT: Mr. Jones, you’ve had since October t he 19th, 1990, to have heari ngs on motions, which y

ou did not do.You’ve waived your r ights to have a hearin g on the motion. You can have allthe ti me you want, but we’re not go ing to del ay the t rial f or your now i nvestigat ing som ething you s hould ha ve done in Octob er of 199 0. JONES: Your Honor, thi s informati on was not avai lable t o us. COURT: It was certainl y avail able under t he discovery procedures. JONES: Your Honor, it wasn’t t urned over to us. COURT: If you didn’t make a motion to hear t he motion on it , Mr. Jones. JON ES: T he dis cove ry only re quire s a re que st, an d it wa s filed in Oc tobe r. W e did reques t it. We d idn’t get it. Also we have nu mer ous Je ncks Act statem ents or s upplem ents he re. COURT: You didn‘t ask for Jencks Act by way of a motion si nce October of 1990. JONES: Your Honor, the rules says [ sic] th at the Jencks Act is supposed to be tur ned over to us aft

er the witness testi fies. Mr. Harris tur ned it over

to us about an ho ur ago because they were numerou s. I’m requesting additional time to review this because of the exculpatory inform ation that I’ve fo und at this time, your Hono r. . . .

HARRIS: First of all, the info rmation that he’s refer ring to the supplements, i s not exculpatory. The people t hat are -- you named, the peopl e that are - - you referred to ar e not named. It’s he arsay. I t’s one par ty say ing one other

party hea rd a thir

d party say

something, so it’s at le ast th ird-h and hear say an d tha t -- an d it’s no t exc ulpat ory be cau se it’s not a dm issib le evidence, number one. Number two, we gave the Jencks Act material t

o him on this one particular w itness at ten o’clock th is mor ning for him to review s o we wo uld not de lay the trial. I would suggest, your Honor, that he do exact ly what Mr. Carter and Iare going t o have to do duri ng lunc h, tha t is, wo rk on the c ase . . . . I calle d him and g ot in to uch with h im a s so on as I cou ld this mor ning and gave it to him , and he’s had it. W e gave it to h im. You r Hono r, he’s not e ntitled to read it a nyway unt il aft er the witnesses testi fy. We gave it t o him to accommodate the Court and jury so they w ouldn ’t have to sit h ere a nd so your H ono r wou ldn’t h ave to sit he re an d wa tch h im read thirty or fo rty supplem ents. Th at’s why we did that, to fac ilitate the case

. COURT: W e’ll

go forward wi th the t rial,Mr. Jones. You wi ll have plenty of time if

you want to exerc ise your tim e judicious ly. 13 before any proof was presented. 7 At the post-convict ion he aring, Jones, defense counsel, recalled receiving this information before the trial; and afterwards, he moved for a continuance which the c ourt denied.

The State , citing United States v. Bencs , 28 F.3d 555 (6th Cir. 1994), argues t hat this in formatio n does no t fall within t he param eters of Brady because the information was disclosed, althoug h delayed. We agree. Brady only applies

to a complete failure to d i sclose exculpatory information and normally does not apply to delayed disclosure, only viola ting Brady if t he delay itself causes prej udice. State v. Inman , No. 03C01-9201-CR-00020 ( Tenn. Crim. App. at Knoxvi lle, Nov. 2 3, 19 93), perm. to appeal denied , (Tenn., April 4, 1994) (citing United States v. Word , 806 F.2d 658, 665 (6th Cir. 1986), cert. denied , 480 U.S. 922, 107 S.Ct. 1383 (198 7)); see also State v. Ewing , No. 01C01-96 12-CR-00531 (Tenn. Crim. App.at Nashville, June 19, 1998), vacated and reentered , (Tenn. Crim. App. at Nashv ille, Aug. 18, 1998).8 W hen this lette r was wr itten, the app ellant had n ot been in dicted for murd er. The letter provides in pertinent p art: As you can see, Will ie Cox has furni shed valuabl e informati on on numerous occasions and has never , to my knowledge,asked for anyt hing in r eturn. He has developed i nto a good, r eliabl e source of inf

ormation, and I would appreci ate any assistance i n thi s case t hat y ou deem fea sibl e. Will ie Lee Cox, Jr ., mal e blac k, date of bi rth 2-9-69,is present ly i ncarcerated i n the Shelby County jai l for second degree murder, reckl ess drivi ng, driv ing whil e license r evoked/suspended under booking number 90091080. The second degr ee murder case is set i n divisi on 5 for 8-14 of ‘90, and the ot her charges are set in div ision 3 f

or 9-4-90. 14 In the case sub judice , only a delayed disclosure was involved befor e any proof
was presented. Therefore, no Brady violation exists unl ess the appellant can demonstrate prejudice. At the post-co nviction hearing, no physical evidence w as presented connecting this identified declarant to the crime

nor was Ms. Cooper c

alled to testify for the appellant. We will not speculat e as to the veracity of this “overheard” statement. Thus, we conclude no preju dice resulted undermining the confidence of

the trial from the State’s delayed disclo sure of this statement. This iss ue is without merit.

B. Deal with Willie Lee Cox At the post-conviction h earing, Officer Cook testified that Willie Lee C ox provide d him with the information regarding thepe rpetrator of the murder of Oliv e Brewer. In return for this information, the off icer testified, “[t]he only thing that I told Mr. C ox was th at if his information was go od, then I would write a letter to the atto rney genera l advising the attorney general of the assistance that he had giv en us in the past.” From the supplemental offense report dated Jul y 24, 1990, Cox was wan ting to wait for his attorney to show up becau se he was afraid h e would not get credit for furnishing the information that might solve this homi cide. Howe ver, we [offic ers] insu red him [C ox] we would make sure he got credit for any thing he was able to tel l us that was the truth. Off icer Cook further stated to Cox , “I can’t make you any promises, I can’t mak

e yo u any deals.” Officer

Cook, in fact, wrote that letter on July 30, 1990, to District Attorney General Hugh Stanton. 8 This letter referred to information provided by Cox in relation to three other cases besides the information identifying the appellant in the murder of Olive Brewer.9 HAR RIS : Now , just s o the jury will h ave th e con text o f your conv ersa tion, yo u we re in trouble, weren’t y

ou? COX: Yes , sir. HARRIS: In fact, you’ve been in tr ouble several

times, haven’t you? COX: Yes , sir. HAR RIS: An d you’ve do ne time yourself for a hom icide, have you not? COX: Yes , sir. HARR IS: One you were guilty of? COX: Yes , sir. HAR RIS: All right. A nd it was vo luntary m anslaug hter; is that co rrect? COX: Yes , sir. 15 During their ongoing inv estigation, the police had concluded that the perpetrator
was a lone black male. Captain Houston of the Memphis Police Department s tated that he was informed by Cox that the appell ant had murdered Ms. Brewe r. Thereafter, the officers verified Cox’s state ment through f ingerprint examinati ons lifted from the bathroom sink near the location of the v ictim’s body

and from the victim’s vehicle. He reiterate d the fac t that the officers promised to mentio n Cox’s cooperation to the Attorney General’s Office, howeve r, they did not promise any specific deal in exchange forhis testim ony. Capt ain Houston further testified that no agreement existed as t o whether Cox woul d have to testify.

Assistant

District At torney Ge neral Harr is stated that he m ade no de al with Cox. During the appellant’s trial, Harris askedCox about his recent guilty plea to voluntary manslaughter. 9 Harris statedthat he never talked to Co x until after the trial had begun and Cox had been released on the v oluntary manslaughter c onviction. Harris testified that he built t he case o n the tes timony of the appe llant’s n iece wh o tes tified that the appellanthad admitted to killing the victim. Harris testified that

he was not aware of

the letter written by

Officer Cook until the day o f the post-conviction heari ng. If he had

known of the existence of the letter, Harris testified that he w ould have communicated that to defense counsel.

Assistant

District Attorney G eneral Peterson, the prosecuto r in charge of the Willie Lee Cox case, testified that he made an offer to Cox on July 25, 1990, for fifteen years a s a R ange I standard offender for his second degree murder charge. The10 On cross-examination: WAT KINS: And you t alked to t he police be cause you your self had got

ten in t rouble? COX: Yeah. WAT KINS: You were tr ying t o make a deal? CO X: N o, it wa sn’t re ally a de al. W ATK INS : It was n’t rea lly a dea l, but yo u tho ugh t it mig ht be a dea l? COX: Yeah.

. . . W ATK INS: Vo luntary m anslaug hter; is that co rrect, Mr . Cox? COX : Yeah. Ye s, ma ’am. WAT KINS: How much jail time did you do? COX: Six months. HAR RIS: You r Hono r, I’m going to object a s being irre levant. COURT: Sustained. And, again on r

ecross-examinati on: WAT KINS: At the time you made your stat ement, Mr. Cox, yo u were reall y charged wi th a murder in the second deg ree, weren’ t you? HAR RIS: You r Hono r, I’m going to object to that. COURT: Sustained. The objecti on is sustai ned. COX : Yes. COU RT: T he obje ction is sus tained. Th e jury [sic] disre gard the answe r. 11 The evidence produced at the post-conv icti on hearing est ablished t he foll owing chrono logy of even ts:

07-03-89 The m urder of Olive Brewer. 05-29-90 Cox indicted for second deg ree murder. 07-25-90 General Peterson offered Cox fifteen years for second degree murder

which was reject

ed by Cox. 16 following memo, written by Dis trict Attorney General

Pierotti on Se ptem ber 5, 1990, contained within the Cox file, was introduced thr ough the testimony of Peterson: At the r equest ofT.E. Cook and B obby Garner, and due to [sic] huge amo unt of information defendant has given us , recommend probat ion

. Defendant is worth more to us on the street than in jail. Dismiss driving charges. Any questi ons, see me. Jones, defense counsel, did not recall r eceiving any speci

fic information from the District Attorney’s Office regar ding a deal that was made with Cox

. Watkins stated that the public defende r’s investigator, Mr. Carlisle, attempted to tal k to Cox before the appellant’s trial but

to no avail. Howev

er, at trial, Watkins attempted to cross-examine Cox regarding a deal. 10

On appeal, th e State argues that there was no Brady violation for its failur

e to disclose information ofa deal because “there was no deal.” Contrary to this assertion, the record of the post-conviction proceeding clearly demonstrates that there was a deal forleniencywith Cox. Althoug h the supreme court on direct appeal was not privy to this information regarding a deal, thes e facts 11 cause this court considerable concern under07-30-90 Cox informs the Memphis Poli ce Department that the appellant murdered Ms. Brewer. The appellant

had not been charged. Off icer C ook send s lette r to D istrict Attor ney S tanto n req ues ting le nienc y for Cox. 08-07-90 General Stanto n offers thr ee years. 08-13-90 Cox pled guilty to three years for voluntary manslaughter. 09-05-90 General Pierotti recomm ends suspend ed sentence and d ismissal of

drivi ng charges for Cox. 09-20-90 Cox’s three y ear sentence was suspended. 03-07-91 Petiti on to revoke Cox’s probation for cocaine use was denied by the

court. 09-24-91 The appellant ’s tri al at whi ch Cox testif ied. 10-14-91 Petitio n to re vok e Co x’s pr oba tion fo r thef t of pr ope rty was withd rawn by

the State. 03-30-92 Petition to rev oke C ox’s pro bation wa s grante d. 12 In Giglio , 405 U.S. at 152, 92 S.Ct. at 765, an Asst . U.S. Att orney promised a witness that he woul d not be prosecuted, whil e the subsequent at torney i n charge of the case was not aware that a de al had been made by t he former assistant . The Supreme Court held:

[N]e ither D iPao la’s [A sst. U .S. At torne y] auth ority no r his fa ilure to inform his superiors or his associates is controlling. Moreover, whether the nondisclosure was a result of negli gence or design, it i s the responsi bility of t he prosecutor. The prosecutor’ s office i s an entit y and as such i t is t he spokesman for the Government. A promise made by one att orney must be att ributed, for these purpos es, to the G overnm ent. (Citation s om itted). Id. , 405 U.S . at 154, 92 S.Ct. at 766. W e not e tha t the U nited State s Su prem e Co urt re cog nized that w ithou t this w itnes s’s testimony there would have be en no indictment or enough evidence t o present the case to the jury. Id. , 405 U.S . at 154-15 5, 92 S.C t. at 766. Th erefore , that witness ’s credibility was c ritical to this c ase and a ny agr eem ent fo r lenie ncy fr om the p rose cutio n wo uld ha ve be en pe rtinen t in deciding his credib ility. Id. However, in the case before us,the Tennessee Supreme Court noted that, “ [t]he Defen dant’s confe ssion to hi s niece and the presence of his fingerpri nts in t he bedroom corroborated Cox’s testimo ny.” Sm ith , 893 S.W .2d at 924

. 17 the requir

ements of Giglio

. 12 However, we a re precluded from holding otherwise in this matter because the Tennessee Supreme Court has previously held this harmless error. See Smith , 893 S.W.2d at 923-924. [I]f the voluntary manslaughter conviction did g row out of the ‘trouble’ C ox was in when he contacted the author ities, and th is is not entirely clear f rom the recor d, the tri al court sh ould have allowed in quiry i nto Cox’ s trea tment by the State on this conv iction. Any error, however , i s harmless beyond a reasonable doubt

. (citations omitt ed). Cox’s testimony made it clea r that it was only afte r he was “ in trouble” that he came forward to tell the authori ties about Defendant’s remarks. Although he denied any deal, he said that he had hoped there might hav e been one. The jury als o heard he had served only six months on a guilty plea to voluntarymanslaughter. The Defen dan t’s confession to his niece an d the presence of his finger printsin the bed room corr oborate d Cox’s tes timony. We find no reversible error. Smith , 893 S.W.2d at 923-92 4 (emphasis added).

Issues that have been previousl y determine d o n direct appeal cannot support
a petition for post-conviction re lief and are, therefore, excluded. See Tenn. Code Ann.13 Specifical ly, these clai ms include: (1) C oun sel fa iled to challe nge Cou nt On e in the Indic tme nt . . . be cau se it omitted an eleme nt of the offense of felony murder; (2) Counsel fa iled t

o make reasonable effort s to negoti ate a sett lement of the case; (3) Counsel fa iled t

o challenge the prosecuti on’s forum shopping; (4) Counsel fa iled t

o investi gate to determine whether t he appellant had been denied his r

ight to a jury p ool represent ative of a fair cr

oss-section of

the com mu nity; (5) Counsel fai led to consult with the appell ant at cruci al stages of the procee dings; (6) C oun sel fa iled to adeq uate ly advis e the appe llant a s to h is righ t to tes tify; (7) Counsel fa iled t

o develop a reasonable trial strat egy or defense’ 18 § 40 -30-111, -112(a); Denton , 938 S.W.2d at 377. Thus, in accordance with ou r supreme court’s previo us ruling, this iss ue is without merit.

V. Ineffective A

ssistance of Counsel

The appellantcontend s that he was denied effect ive assistance of counsel both at trial and on appeal due to couns el’s (1) failure to objec t to th e introduction of evidence and testimony of a used condom found at the crime scene ; (2) failure to pursue hearings on pre-trial motions; (3) failure to properly investig ate the possibility of other perpetrators; (4) failur e t o reques t money for expert serv ices; (5) failure to investigate, litig ate, or present proof regarding the appellant’s competency to stand trial; (6) failure to investi gate, litigate, or present proof regarding the appellant ’s sanity; (7) failure to investigate, litigate, or present proof regarding the appellant’ s mental retardation; (8) failure to investi gate or present proof concerning mitigating evidenc

e at sentencing; (9) failure to present facts on appeal to demonstrate that the Middlebrooks
error was not harmless; and (1 0) failure toshow that the appellant’s death sentence is comparatively dispr

oportionate.

Addition ally, without cit ation to the record, explanati on, or citation to any l egal authorit y, the appellant lists tw enty-four s upplementary claims of inef fective assistance of counsel. 13 Also, the appellant contends (1) that appellate counsel was ineffective for(8) Counsel fa iled t o make a motion to recuse the t rial j udge; (9) Counsel fa iled t

o adequately

question pr

ospective j urors regardi ng the sen tenc ing ph ase of the trial; (10) Cou nse l failed to de velop an ad equ ate re cord rega rding the p rose cuto r’s disc rim inato ry use of pe rem ptory c hallen ges to rem ove A frica n-Am erica n juro rs in violation of Batson v. Ken tucky ; (11) Cou nse l failed to ad equ ately q ues tion p rosp ective juror s reg ardin g the ir possible misper

ceptions concerning parol e eligi bility and racial and other biases; (12) Counsel failed t o object to the exclusi on of jurors based on reli gious objectio ns; (13) Counsel failed t o file motions and or obtain rul ings in adv ance of tri al on pretri al motions; (14) Counsel failed t o adequately

cross-examine wit nesses; (15) Counsel failed t o object to the prosecuto r’s improper,misleading, and prejudic ial statem ents co ncernin g the law, the evidenc e and the appellant; (16) Counsel failed t o object to the prosecution’s repeated use of leadi ng questions during dir

ect examinatio n of prosecuti on witnesses; (17) Counsel failed t o object to certain jury i nstructi ons; (18) Co unsel fa iled to objec t to instruction that relieved the pros ecution o f its burden of proving all eleme nts of the offens e beyond a reaso nable do ubt; (19) Counsel failed t o object to erroneous and misle ading reasonabl e doubt instruct ions; (20) Counsel failed t o investi gate or present evidence i n support of t he issues raise d in the ir mo tion fo r new trial; (21) Counsel failed t o discuss wit h the appell ant the l egal clai ms that could be raise d pre trial, in th e m otion for ne w trial, a nd/o r on a ppe al; (22) Cou nse l failed to ob ject to the s uffic ienc y of the evide nce pres ente d in support of t he aggravati ng circumstances; (23) Counsel failed t o object to the consti tution ally of the aggrav

ating circumstances; (24) Counsel failed t o object to the qualifiers “ext reme” and “substanti ally ” in the statu tory m itigatin g circ um stan ces instru cted to the jury. 19 “ not presenting sufficient facts to demons trate that [the] Middlebrooks error” was not har mless error under State v. Howell , 868 S.W.2d 238 (Tenn. 1993); an d (2) tha t appellate counsel was ineffective for its failure to demonstrate tha t his death sentence
was compara tively disp roportio nate bas ed upon “ new facts ” unava ilable to the supre me court regarding his mental condition; unavaila ble exculpatory ev idence; and the age, race, gender of the appellant.

The State submits that these add itional allegations have been previously determined and/or

waived. W e agree. In itially, we note that the post-conviction court did find that the appellant had receiv ed ef fect ive assistance of counsel.As an ineffective counsel claim is but a single allegati on, the court did rule onthese issues, contraryto the appellan t’s assertion. See Cone v. State , 927 S.W.2d 579, 581-582 (Tenn. Crim. App. 1995), perm. to appeal denied , (Tenn. 1996), cert. denied , -- U.S. --, 117 S.Ct. 309 (1996). Moreov er , the appellant’s cursory enumeration of each allegation amounts to waiver, because these issues are not supported by argument nor20

a re there appropriate references t o the record. See Tenn. R. App. P. 27(a)(7), -(g); Tenn. Ct. Crim. A pp. R. 10(b). Many of these clai ms were not argued at the postconviction hearing nor was any pr oo f related to these issues pres ented. When an appellant fails to articulat e reasons to support a conclus ory statement, the

issue may be deemed waived. Tenn. R. App. P. 27(a)(7); State v. McKay , 680 S.W.2d 447, 454 (Tenn. 1984), cert. denied , 470 U.S. 1034, 105 S.Ct. 1412 (1985). See also Tenn. Ct. Crim. App. R. 10(b). Finally, several of the issues were raised and determined on direct appeal. The fact that these issues are now couched in terms of inef fective assistance of counsel is of no consequence. See Overton v. Sta t e , 874 S.W.2d 6, 12 (Tenn. 1994). Thus, our review of the appellant ’s Sixth Am endment claim does not encompass these numerous and ofte n duplicitous allegations.

A. Standard f

or Determining Ineff

ective Assist

ance of Counsel When a claim of ineffective assistanc e of counsel is raised, the bur den is upon the appellant to show (1) that counsel's performance was deficient and (2) that the deficientperformance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Thus, the appellant must prove that counsel "made
errors so serious that counsel was not functioning as the 'counsel' g uaranteed the defendant by the Sixth Amendment," and the ap pellan t must demonstrate that counsel's errors "wer e so serio us as to de prive the defendant of a fair trial, a trial whose result is reliable." Id. The ap pella nt must establish both deficient pe rformance and prejudice in order to prevail. Id. A reviewing court need not consider the two pr ongs of Strickland in any particular or der. Stricklan d v. Washington , 466 U.S. at 697, 104 S.Ct. at 2069. Moreover, if the appellant fails to establish one prong, a reviewing court need not consider the other. Id.

With respect to deficient performance, the proper meas ure of attorney performan ce is reasonableness under prev ailing professional norms

. Stricklan d v. Washington , 466 U.S . at 688, 104 S.Ct. at 2065. In other words, the attorney's21

performance must b e w ithin the range of competence demande d of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 ( Tenn.1975); Wright v. State , No. 01C01-9105-CR-00149 (Tenn. Cr i m. App. at Nashville), perm. to appeal denied , (Tenn.1994), cert. denied , 513 U.S. 1163, 115 S.Ct. 1129 (1995). This court "must indulge a strong presumpt ion t hat counsel's conduct falls w ithin the wide range of reasonable professional assistance; th a t is , the defendant must overcome the presumption that, under thecircumstances, the challe nged action 'might be considered sound trial strategy.' " Strickland v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065. We sh ould def er to trial strategy or tactic al choices if they are i nformed ones based upon adequate preparation. Wright , No. 01C01-9105-CR-00149 (ci ting Hellard v. State , 629 S .W.2d 4, 9 (Tenn.1982)). Additionally, thi s court should avoid the "distorting effects of hindsight" and "judge the reasonableness o f counsel's challenged conduct on the facts of the particular case, v iewed asof the time of counsel's conduct." Strickland v. Washington , 466 U.S. at 689-690, 104 S.Ct. at 2065-2 066. More over, we note that defendants are not entitled t o perf ect representation, only constitutionally adequate representation. Harri es v. S tate , No. 833 (Tenn. Crim. App. at K noxville, August 29, 1990), perm. to appeal denied , (Tenn.1991). However, we recognize th at “our duty to search for constitutional [deficiencies] w ith painstaking care is never more
exac ting than it is in a capital case.” Burger v . Kemp , 483 U.S. 776, 785, 107 S.C t
. 3114, 3121 (1987).

To establish the prejudice pr ong of Stric kland , the appellant must show that there is a reasonable probability that, but for counsel's deficient performance , the result of the proceeding would hav e been different. Stri ckland v. Washington , 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable pro bability is one sufficient to undermine confidence in the outcome. Id

. That is, the evidence stemming from failing to prepare
a sound defense or present witn esses must be significant, but it does not necessarily follow that the trial would have otherw ise resulted in an acquittal. State v. Brimmer , No. 03C01-9703-CC-00083 (Tenn. Crim. App. at Knoxville, Sept. 15, 1998) (ci ting N ealy22

v. Cabana , 764 F.2d 1173, 1178-1179 (5th Cir. 1985); Code v. Montgomery , 799 F.2d 1481, 1483 (11th Cir. 1986)). “A reasonable probability of being found guilty

of a lesser charge, or

a shorter sentence, satisfies the second prong in Strickland .” Brimmer , No. 03C01-9703-CC-00083 (citing State v. Zimmerman , 823 S.W.2d 220, 225 (Tenn. Crim App. 1991); Chambers v. Armontrout , 907 F.2d 825, 832 (8th Cir. 1990), cert. denied , 498 U.S. 950, 111 S.Ct. 369 (1990)). M oreover, when chall enging a death sentence, the appellant must show that “ there is a reasonable probabi lity that, absent the errors, the sentencer . . . would hav e concluded that the balance of th e aggravating and mitigating circumstances did not w arrant de ath. ” Henley v. State , 960 S.W.2d 572, 579-580 (Tenn. 1997), reh’g denied , (1998), cert. denied , No. 97-8880 (U.S. Tenn. Oct. 5, 1998) (citing Strickland v. Washington , 466 U.S. at 695, 104 S.Ct. at 2069).
1. Counsel’s failure to object to the admission of testimony regarding the used condom. At the appellant’s trial, the State introduced a used condom found in a bedroom closetat the crime scene. No objec tion wasmade to the introduction of this evidence. The appellant contends that his att orneys were ineffectiv

e for failing to object to the introduction of testimon y regard ing the condom. Specifically, he argues that the condom was irrelevant

because the appellant was not charged withrape or any sexual offense and, given its prej udicial effe ct, should not have been admitted . He further
as serts that no evidence of sexual activity exis ted other than the condom and that a condom alone is not evidence of r ape.

In its findings of fact and conclusions of law, the post-convictio n cou rt determined: The petiti oneralleges that the trial counsel’s representation was ine ffecti ve because they did not object to irrelevant evi dence that wa s presented duringthe trial. Theevidence complained about w as a used condom found at the scene of the crime. The petiti oner mai ntai ns that the condom was not id entified thro ugh physical or scienti fic proof to the defendant. This Court is of the opinion that the evidence complained of was clearly relevant con sidering the entire record of the case. The condition and position of the victim’s clothi ng, the victim first being tied up and placed on the bed and her subsequent removal t o the tub were23 certainlyindications separate and apart from the condom that would indicate the victim had bee n raped prior to her death. Defense counsel cannot be held to be ineffective for not ob jecting t o evidence that is properly admissible. The Court finds this allega tion to be without

merit.

The appellant contends that the post-conviction court’s finding fails to address the question of why ev idence of an uncharged rape is r elev ant in a prosecution for felony murder where the underlying cri me is robbery. Generall y, “[e]vidence of other crimes, wrong s, or ac

ts is no t admiss ible to prove the chara cter of a person in order to show a ction in conformity with the character trait.” Tenn. R. Evid. 404(b). However, such evidence may be

admissible for other purposes

. For example, proof of bad acts occurring before and after the offense at issue are admis sible to provide

the trier of fact with “the full story.” See State v. Hoyt , 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995) (citing N. Cohen, Tennessee Law of Evidence , § 404.11 (2d ed. 1990). E.g. , State v. Pay ne , 791 S.W.2d 10, 16 (Tenn. 1990), aff’d by , Payne v. United States , 501 U.S

. 808, 111 S.Ct. 2597 (1991)); see also State v. McCary , 922 S.W.2d 511, 514 (Tenn. 1996). Moreover, considering that the jury learned of the State’s failu re t o test the contents of the condom and, therefore, could only i nfer that the appellant perpetrated
a rape against the vic t im, we conclude that the probative value of such evidence outweighed the danger of unfair prejudice, as the condom was not specifical ly identified
as belonging to the appellant

. See Tenn. R. Evid. 401, 402, 403. Counsel cannot be found ineffective for failure t o object to evidence wh ich is obviously admissible. See Hellard , 629 S.W.2d at 11. This issue is without merit.

2. Counsel’s failure to pursue hearings on pretrial motions

. The appellant contends that his attorneys “utterly failed to adequately prepare this death penalty case for trial.” As evidence of counsel’s total inadequacy , th e appellantasserts that counsel “di d not even docket for hearing a numberof non-casespecific, generic motions that had been p reviously filed.” Thus, the appellant argues14 Regarding tr ial counsel ’s fail ure to have pr e-tri al motions set

for heari ng, the fol lowing colloq uy occ urre d at th e trial le vel:

COURT: W hy in t he world haven’ t you asked for

a hearing on t hese motions? JONES: Your Honor, we probabl y should hav

e. COURT: You didn’t answer my quest ion. Why haven’t you? JONES: I don’t hav

e a reason. COURT: That’s the questi on. JONES : I don’t have a reason, your Honor. COURT: I think you’ve waived y our motions. I think y ou’ve waiv

ed your motions waiting to the day of trial. I’m n ot going to h ear m otions on the day of trial, pe riod. I rule that you have

waived them. 24 that he was deprived of the oppor tunity to obtain complete discovery,expand the scope of voir d ire for the defen se, narr ow the S tate’s p roof, expand the defen se proof,identif y t h e evidence to be presented at trial, and to generally develop his case and explore settlement possibilities.
Approximately thirt y “bo ilerplate” pre-trial motions, relative to all capital cases,
were filed in this case. The trial court re fused to entertain these motions becaus e they had not been set for hearing prior to trial. 14 At the post-convicti on hearing, IsaiahGant,
an attorne y who testif ied as an e xp ert i n the defense of capital cases, expl ained that pre tria l motion practice is crucial in death penalty cases in that such practice defines the parameters of both the prosecution and defense cases. As such, Gant con cluded that trial counsel’s failure to have these motions heard affected the entire case. Robert Jones, lead t rial c ounsel for the appellant, expl ained that the motions were no t docketed for trial because “we felt that the death penalty would not apply in this case. ” Addition ally, Assistant District Attorn ey Harris, who prosecuted the appellant’s case, recalled that there were no issues r equiring a pre-tri al hearing and that the motions filed “go to the con stitutio nality of the death penalty” and “are filed in every death penal ty case.” He added that t hese motions are normally filed in or der for “the defense [to] preserve the record. They are usually submit ted without argument.”
The post-convictioncourt found that it was proper to file these “gener al motions to protect therecord.” Howev er, the fact that the motions we re filed is not the basis of the claim of ineffectiveness. At trial, lead counsel c ould offer no explanation to the trial court as to w hy these motionshad not been set fo r argum ent. Thi s, in an d of itse lf,25

amounts to deficient performance. How ever, as the appellant

has failed to show

how any of these motions would have impacted his trialand that he was prejudic ed there by,
we conclude that he has not met his burde n of esta blishing h is claims b y a preponderance of the evidence.

3. Counsel’s failure t o properly inv

estigate other possible perpetrators.
The appellant contends that his tr ial counsel was ineffective for failure ( 1) to investigate

two additional suspects, Anthony Lewi s Ross and Taurus Dwayne Gardner; and (2) to investigate and question the officers regarding the statement of Alice Cooper. Appellant’s post-conviction counse l failed to present any supporting evidence of these contentions; and we will not speculate as to the alleged suspect’s involv

ement nor to the testimo nyof Ms. Cooper, as previ ously stated. Because the ap pellant has failed to demonstrate any prejudic e, this issue is wi

thout merit.

4. Counsel’s failure t o request funds for

expert services . The appellant contends that his tr ial counsel was

ineffective for failing to secure the funds necessary to prov ide an effective defense. S peci fically, he points to counsel’s failure to request funds to condu ct a mental status evaluati on, to retain a serologist or DNA expert to test the used condom found at the crime scene,to retain
a forensic expert to determi ne whethe r th e hair combings from the vi ctim included or excluded the ap pell ant, and to retain a fingerpri nt expert to conduct an indepen dent evaluation of the incriminating fingerprint evi dence.

There is no dispute that, despite the appellant’s co n tinued assertions of innocence, trial counsel failed to r equest any funds for any of the above enumerated expert services.
a. Failure to request DNA/Serologi st expert to examine con dom and hair26

samples. At the post-conviction hear ing, Robert Jones testified that the decision not t o have the haircombings from the victim’s body an d the contents of the condom tested were tactical decisions, as the defense team believed that there “was a good chance that it wo ul d h av

e b ee n o ur

cl ie nt . We

felt that we would be in a much better position to show that the State had not

fully investigated the case, rather than taking a chance
on proving it was

Mr. Smith.” In effect, the State’ s failure tosubmit these same items forforensic analysi s pe rmitted the appellant to arg ue that the State had failed to establish his connection to this eviden ce. We cannot now say in hindsight that this was an unsound strategical deci sion. Hellard , 629 S.W.2d at 9.

Moreover, before h e may s ucceed on such a claim of ineffectiv eness, the appellantmust show that, but for, counse l’s failure to request an expert, the jury would have had a reasonable doubt con cerning his guilt. The appellant has not met this burden. In order to obtain exper t services, a defend ant must sho w a particulariz ed need for such services. See State v. Shepherd , 902 S.W.2d 895, 90 4 (Tenn. 1995). “The defendant must show that a substantial n eed exists requiri ng the assistance of state paid supporting serv ices and that his defense cannot be fullydeveloped without such professional assistance.” State v. E vans , 838 S.W.2d 185, 192 (Tenn. 1992), cert. denied , 510 U.S. 1064, 114 S.Ct. 740 (1994). He has not identif ied an expert witness available to testify on his behalf or th e type of testimony such a witness would have provided beyond that eli cited at trial. See Black , 794 S.W.2d at 757. This issue is without merit.

b. Failure to request funds for expert mental health evaluation. As explanation for the abse nce of a reque st for funds for a mental health expert, Jones testified that there w ere adequate resources from the Public Defender’s Office to cover the fees of the mental retardation examination, thus, there was no need15 In addition, the appellant contends that defense counsel failed to investigate the report from the fingerp rint exam iner. The report of O fficer Sim s indicated that prints of two sep arate adult individua ls were fo und on the sce ne as w ell as one p rint of a juve nile. One o f the adu lt prints cam e fro m in side the vic tim’s hom e and that p rint be longe d to th e app ellant . The othe r adu lt prints wer

e located on the victi m’s vehicle, one belongi ng to the appel lant and t he other to a police officer wh o had w orked the crim e scen e. The ju venile han d print rem ained un identified. Coun sel’s failure to investigate the unide ntified finger print is enc omp assed within his failure to reques t a fingerpr int expert. 27 to request additional funds from the court. Although Jones’ ex planation that adequate funds were available from th e Shelby County Publ ic Defender’s Office suffices to negate the need to request such funding fro m th e court, as this issue affects subsequent

allegations of ineffectiveness regarding inves

tigation and presentation of the case, we refrain, at this juncture, from determining whether the omission of such a request prejudiced the appellant’s defense.

c. Failure to request expert services for fingerprint analy sis. No testimony was present ed to explain the failure to request a fingerprint ex pert. There is no doubt that the fingerprint evidence was a crucial piece in the Stat e’s case, establishingthe identity of the appellant. 15 Thus, absent any explanation i n the record,
we presume a threshold finding of deficient performance. Not with standing, the appellanthas not demonstrated how he was harmed by

counsel’s failure to req uest the services of independent experts. See Black , 794 S.W.2d at 757. The qualifications of the State’s experts w ere not challenged and th e re is no allegation of bias. Addition ally, at trial, counsel cros s-examined the

expert who examined the fingerprints. The appellant has not identified an expert witness available to testify on his behalf nor has he shown what additiona l tests his experts w ould perform or what

new testimony they would present. See Black , 794 S.W.2d at 757. The appellant has failed to show how such expert testimony

would have altered the outcome of his trial. Mor eover, the
mere fact that the State relies upon expert evidence does not mean that an indigent accused i s enti tled to an expert absent a showing that the failure to provide expert services amounts to a denial of due process. See State v. Phillips , 728 S.W.2d 24, 25 (Tenn. Crim. App. 1986). Accor dingly, the appellant

has failed to meet his burden of28

est ab lishing that counsel ’s failure t o request a fingerprint expert pr ejudiced the

outcome of his trial.

5. Counsel’s failure to investigate , litiga te, and present proof on the appellant’ssanity, his competency to stand trial, and his mental retardation and counsel’s failure to pr esent mitigating ev

idence during the sen tencing phase

. The appellantargues that his mental condi tion was critical

at both the guilt and the sentencing phases of his trial and defense counsel’s failure to explore, investi gate, litigate, and present available pr oof of his mental condition c onstitute d ineff ective assistance of counsel.

At the post-conviction h earing, Robert Jones testified that, upo n assignment to the appellant’s case, the entir e defense team, which included tw o attor neys and two investigators, met with theappellan t. Jones stated that the appell ant gave them
names of his family members and some gener al information. During this interview, the appellant denied any inv olvement in the crime. He explained to his attorney s that he mayhave been at workat the ti me of the c rime, but counse l was u nable to verify this alleged alibi or develop a plausible a libi defense. Again, the appel lant presented no proof at the guilt phase of his trial.

J ones related that he ordered inv estigations into the facts of the case a nd th e appellant’s background. The defense team interviewed at least thirteen witnes

ses prior to trial, including members of the appellant’s family, however, none provided any helpful information regarding the appel lant or the case. Jones also testified that he had requested competency and sanity ev aluations of

the appellant. Despite

his assertions, he was unable to provid e any record of this req uest, nor any record that

the appellant was ever evaluate

d to determine whether the defense of insanity could be supported
or whether the appellan t was comp etent to stand trial. Jones stated that Dr. Hutson
was requested to administer an IQ test and the appellant achieved an IQ test result of 54. The results of this test and the appellant’s school record s w ere the b asis of a16 The d eath pen alty may no t be imp osed w here the defend ant is m entally retarde d. See Tenn. Code Ann. § 39-13-2 03(b). To prov e that he i s ineli gible f or a death sentence, a defendant has the burden of show ing, by a prep ondera nce of th e eviden ce, that (1) he has a function al I.Q. of seventy

(70) or bel ow; (2) he exhi bits defi cits i n adaptive behavior; and (3) that the mental retardation man ifested du ring the de fendan t’s develop men tal period, or b y age eighte en (18). See Tenn . Code A nn. § 39- 13-203 (a). On dire ct appe al, our sup rem e court d eterm ined that the appellant fa iled to prove “deficits in his adaptive behavior.” Sm ith , 893 S.W .2d at 918

.

17 Inde ed, th e sup rem e cou rt note d in its o pinion , “[i]t is re grett able t hat D r. Hu tson . . . did not discuss t he adaptive deficit prong. . . . The recordis inadequa te to support

a findi ng that t he defendant suffers from deficits in his adaptive behavior.” Sm ith , 893 S.W.2d at 918.

18 The records from the Depart ment of Correcti on in the possession of defense counsel transcribed an evaluation of the appellant when he was s eventeen years old finding: “We be lieve subjec t to have be low avera ge intelligenc e. Progn osis for p rison and civil adjustm ent guar ded.”

19 The S tate conc edes th at defen se cou nsel was ineffective for failing to pre sent ad equate proof at t he hearing hel d to determine whether, as a matter of law, t he appellant could receive a sentence of deat h. 29 motion to determine whether the appellant was mentally retarded and, thus, statutorily ineligibl e to recei ve the dea th penal ty. 16 This motion was filed on the first scheduled d ayof tri al and was d enied by t he trial co urt becau se the ap pellant failed t o prove “d ef icits in his adaptive behavior,” notwithstanding the fact that this proof was readily obtained and established at the post-convict ion hearing. 17 Jones stated that at the
m otion hea ring, the defense team only had possession of the appellant’s sc hool records; they had nothing of substance fr om any of the previous correctio nal institutions
or related parole re ports. 18 He admitted that he could not r ecall what proof was introduced at this hearing. 19

Jones stated that he had sent a release to the Department of Correction for the appellant’s records and received e leven pages regarding the appellant ’s incarceration at Fort Pillow. Hi s files revealed a note that the defense tea m had received records from Taft Youth Center, although the actual recor d was not in the file. He stated that he had no records from Dismas House or the Board of Paroles. He did not have any recordsfrom the Shelby County Juvenile Court or the Covington Mental Health Center. His files contained no psycholo gical evaluation other

than information regarding the IQ test performed by Dr. Hutson. Jones testified that he was un aw are of prior mental evaluations

conducted during the appellant’s prior periods of incarceration by at least30

eightseparate psychologis ts. Jones testified that the only witness presented during the sentencing phase by the defense was Dr. Hutson. Jones stated that they chose not to introduce friends or family members because they wer e afraid these witnesses would relate that the appellant was more competent than they believed he was, because the appe llant’s family members were hostile toward the appellant due to his ra pe of hi s sister’s child, and because they were afraid ofthe State’s cross-ex amination regarding violent episodes in the ap pellant’s life.
Carolyn Watkins, second chair couns el to Robert Jones, testified that this was her first capital case. She st ated that Dr. John Hut s on was retained by their office because the defense team “felt that the defendant had some type of psycholog ical or
men tal problem.” She explained that Dr. Hutson was in structed to interview th e appellant, assess the appellant as to the nature of any problem, and “let us know what he thinks,” because after their initial interview

the defense team thought the appellant
was slow. Despite her a ssertions that the defense team had r equested that Dr. Hutson perform a competency evaluati on, her records could not v erify such a request.
Dr. John Hutson, the psych ologist retained by the Public Defender’s Office, testified that he was only ins tructed to administer a Stanford- Binet I.Q. test to t h e appellant. He testified that the Stanford-Bi net test usually scored lower than the more widely used Wec hsler te st. He stated that based upon the S tanford-Binet test, the appellantachieved an IQ of 54, which probably meant that the appellant functioned in the low to mid 60's. He opi ned that he believed the appell ant to be mentally retarded
as defined by statute. He also testified that the appe l lant’s mental retardation manifested itself during the appellant’s developmental period before ag e eighteen. He further stated that the defense team did no t ask him to perform a competency evaluation nor was he asked to ex plore a possible insanity defense. In fact, Dr. Hutson testified that he never review ed any records

regarding the appellant until the day of the post-conviction heari ng.31 Isaiah Gant, testifying on behalf of the appellant, s tated that, after reviewing counsel’s files and the record in t his c ase, in his opinion, the appel lant had a mental state defense at the guilt phase of the tr ial, although his counsel d id not pursue this. Addition ally, he opined that, based upon the report s he reviewed, that the proof offered in support of the mental retardati on issue was inadequate.

Gloria Shettles, a private inv estigator with Inq uisitor Inc., was hi red b y post conviction counsel to inquire into the appellant’s background. H er inquiry rev ealed that the appellant’s father died from an alc ohol related illness when the appell ant was sixteen years old. His mother worked tw o full-time jobs

to support the appellant and his foursiblings and, apparently, drank heavily w hen she was at h ome. The a ppellant often missed school and had to repeat the second, third, and seventh grades. The appellantnev er complet ed the seventh grade. Although he had studied and taken preparatory courses while in pr ison, the appellant was nev er abl e to pass a GED examination.

Shettles also interviewed the appellant on several occasions, at times when he
was taking anti-psychotic medication and other times when he was not taking the medication at all. When he had n ot been taking his medication, he suffered from headaches and appeared agitated . A fter the appellant had resumed taking his medication for a peri od of two to three days, Shettles observed a noticeable difference in his dem eanor, i.e. , the appellant was much more relaxed and less irr itated. She stated that the parole board woul d have had access to all of the ap pel lant’s records while reviewing par

ole considerations. S h e added that, although many of the appellant’s relevant

parole field records had now been destroyed, these records would have been av

ailabl e at the time of hi s trial . Shettl es concl uded that the appe llant’ s life had been one constant sequence of violent acts until he began receiving medicati on.

Mattie Halley was t he appe llant’s seventh gra de teacher at Po rter Junior High32

School. She explained that the appell ant was in a federally funded program designed to help students who had an IQ less than 80 and who per formed three to four grade levels below the nor

m. She recalled having worked with [the appellant] and witnessed quite a bit of frustration on his part. Especially when I gave him a si mple task to pe rform. He would attempt to do whatever I put before him to do, but he just couldn’t do it. Because of his problems, Hall ey stated th at she took a particular inte rest in the appellantand gave him individualized attention. She verified, through school records, that the appellant had an IQ of 72 in 1957, and an IQ of 67 in 1960. Shealso testified that the highest grade reading equiv alency the appellant eve r reached was a reading level of fourth grade, four months

.
Mary McGlothin testified

that she met the appellant, soon after his release from incarceration in 1987, while they w ere both employed at S & S Cafeteria. Through this employment, the two became friends and the appel lant lived in her home for ab out four months. She explained that, at work, the appellant worked v ery efficiently but that he had problems taking orders. He would become frustrated, ill- tempered, and host il e . After being employed for about six months, the appellant was asked to leave because he was caught stealing

a battery at a

nearby K-Mart store. Ms. M cGlothin testified that, persona lly, the appellant desired a boy friend-girlfriend

relationship with her, which she rejected. She observed that “he did have mental problems.” On several occasions,the appellantclaimed to hear voices from God telling him to kill people. While he resided with her and her children, “[i]t was l ike ha ving another child. He demanded a lot of attention and was desperate for somebody to care about him.” He wasvery dominating and was jealous ofMs. McGlothin’s other friends. She further testified that the appellantwas unable to successfull y travel by bus,thus, he resorted to walking or ri ding his bicycle wherev

er he went. She a lso stated that he was very moody. On one occasion, the appellant came in with a sawed-off shotgun, to wh ich M s. Mc Glothin objected. The incident re sulted in Ms. McGlo thin calling “ 911" and the police having to restrain the appellant. As a result of this incident, the appellant spent four months33

in the Shelby County Jail.

Dr. William Bernet, Medical Director of the Psychiatric Hospit al at V anderbilt, testified that he was retained by post-conviction counse l to interview and evaluate the appellant. He stated that he intervi ewed the appellant for two hours and reviewed the medical, legal, administrative, and educational records of the appel lant. As a result of his evaluation, Dr. Bernet concluded that the appellant “ha s multiple bio-psycho-

social handicaps, . . .[encompas sing] a number of different areas; including hi s intelligence.” Dr. Ber net opi ned that the appellant has a below normal intelligence and that the appellanthas a serious psychiatric illness, specifically an illness that is psychotic. He stated that the appellant “may have some brain damage. And that [the appellant] has been in institutions so long, I think he has been affe cted by that.”

Dr. Bernet further explained that the appel lant’s low intelli gence is manifested byhis school performance, his poor academic performance, his inability to pass a GED examination, and his inability to maintain a job. He opined that the appellan t’ s psychiatriccondition fits most closely to paranoid schizophreni a, manifested by many incidentsof hallucinations, auditory hallucinations, paranoia, and irritability in dealing with other people. Additionally, Dr. Bernet observed that the appellant had previously been treated, while in pr ison, for schizophrenia with antipsychoti c medication. When asked whether the appellant w as competentat the time of his trial in O ctober 1991, Dr. Bernetresponded that “the fact that he wasn’t on medication at the time, that when he’s not on medication . . . he is hallucinating and psychotic and disorganized . . . it’s more likely than not that he was not competent at the time of the trial .” (Emphasis added). He continued to st ate that “if you are both psycho tic and . . . retarded then it’s even more of a handicap than having either one of them alone.” He opined that it is
v eryprobable that [the appellant] has had this condition for a long tim e and that he had these conditions at the time of the alleged of fense . And that these conditions may ha ve p revented him from understanding the wrongfulness of his actions or conforming h is actions to the requirements of the law

.34

(Emphasis added). In conclusion, Dr. Bernet stated that the ap pellant’s serious mental disorder would have prevented him from forming an intent to commit a particular act . If you combine a man who has a psyc hotic illness, who has low intel ligence , who could well hav e been intoxicated at the time, I think all these things could have prev ented him from forming an intent. (Emphasis added).

Dr. Geraldine Bishop, a clinical p sychol ogist also retained by post-conviction counsel, assessed the adaptiv e behavior of theappellant. She administered the test twice, once based upon the appellant’s condition while in a structured environment on death row and another whil e in the community witho ut receiving any medicat io n immediately before the time of the murder. Using an adaptive behavior s cale published forthe American Association of Me ntal Retardation and by i nterviewing the appellant, his prison case manager, and M ary McGlothin, Dr. Bishop was able to obtai n a continuum of behavior that all owed her to project wh at the ap pellant ’s adapti ve behavior was like during his developmental period. She opined that the appellant had current, as well as a histor y of, retarded adaptive behav ior, meaning that

the appellant was unable to adapt to the surrounding circumstances. She also concludedthat this retarded adaptive behavi or developed well before he was eighteen year

s old.

Gail Barbee, with the Tennessee Board of Parole, intr oduced several docum ents. These documents included “notic es of board action” regardi ng th e appellant’s eligibility for parole. Specifically, o n Ju ne 4, 1986, parole was recommended conditioned upon the appellant bei ng sentto Dismas House. This report al so noted that the appellant “has lo st contact with the outsi de world and will nee d support on the outside.” Subsequent notices on September 1 2, 1986; May 15, 1987; and J une 25, 1987, stated that parole w ould have to be conditioned on r elease t o Dismas House.

At t he post-conviction hearing, the State called no witnesses to contradic t th e35

expert opinions of Drs. H utson, Bernet, and Bishop.

c. Analy

sis

As the issues involvi ng the defendant’s mental condition are so intertwined that they cannot be neatly divided into separate ar eas, we begin our rev

iew by consolidati ng the appellant’s allegations involving competenc

y, sanity, and mental r

etardation. See, e.g. , Starr v. Lockhart , 23 F.3d 1280, 12 90 n.7 (8th Cir. 1994), reh’g denied , (1994), cert. denied , 513 U.S. 995, 115 S.Ct. 499 (1994 ). Next, mindful that

counsel’s duty to investigate

all reasonable lines of

defens e is most s trictly obs erved in ca pital cas es, we must determin e whether trial coun sel knew o r, thr ough reasonable investigation, should have known of the appellant’s pre-exi sting mental history

. See Coleman v. Brown , 802 F.2d 1227, 1233-1234 (10th Ci r. 198 6), cert. denied , 482 U.S. 909, 107 S.Ct. 2491 (1987). For counsel to be ineffective in failing to in vest igate an alleged mental condition, the appellant must show facts indicating a possible ment al conditio n. Som et imes it will be evi dent from the evidence concerni ng the circumstances of the crime, from conversation with the defendant, or from other sources of information not requiringfresh investigation, that the defendant has some mental or other condition that will require further inv

estigation, and then the failur e to investigate w

ill be i n effect ive assistance. See An twine v. Delo , 54 F.3d 1357, 1365-1368 (8th Ci r. 1995), cert. denied , 516 U.S. 1067, 116 S.Ct. 753 (1996); Brewer v. Aiken , 935 F.2d 850, 857-858 (7th Cir. 1991).

The evidence presented at the pos t-conviction hearing

revealed that d efe nse counsel possessed evidence regardi ng the appellant’s mental sta tus which they essentially ignored. This is not a situation where trial counsel was completely unaware of their client’s mental

problems prior to trial. Indeed, defense counsel’s file included, in addition to the results of Dr. Hutson’s IQ test results est ablishing an IQ of 54, (1)20 Spe cifica lly, the fo llowin g tim e line e xem plifies the s ever ity of the appe llant’s insti tution aliz ation:

1964-1965 State Voc ation al Tr aining Sch ool fo r Colo red B oys 1966-1968 Tennessee Department of Correction 1970-1987 Tennessee Department of Correction 1976 : administe red antipsy chotic medication 1979 : referred to Covington Mental Health Center for evaluation : suffered men tal confus ion, imp aired m emo ry, parano id ideation, au ditory hallucina tions, dep ressive s ymptom s, obsessive compulsiv e behavior. Treated wit h antipsy chotic and antidepressa nt medicati on. Parole Board advised t hat upon release, ap pellant

should conti nue medication. 1980 : psychi atric ev aluati on completed, resul ts conclud ed that appel lant i s completely insti tution aliz ed and dep end ent u pon cont rolled envir onm ent fo r sur vival. 1987 : Defendant par oled and does not

continue medicati on. 1988 Shelby C ounty Jail. No men tal treatm ent, defe ndant experiences auditory hal lucinat ions. 1990 Shelby County Jail. No medication.
21 Date Age Repo rt 5-19-82 34 Recommendat ion of psy chia tri c int ervi ews t hroug h TCMHC. 10-13-81 33 “On 10-2-81 subject was deferred cl emency considerati on until 6-83. Sta tes he is s till receiving psyc hiatric cou nseling.”

36 notations that defense counsel knew or had reason to know that the appellant had bee n prescribed antipsychotic medicati on and had been mentally evaluated while in prison, (2) notes indicating that the appellant “ may need ex amination Re

view,” and (3) a memo from Parole Supervisor Bernard Bennett which reflects “can order mental e valuation.”
Despite this information, defense counsel failed to pursue an inv estigation into the appellant’s mental history. If they had conducted any type of reasonable effort to seek out such information, they w ould have discovered that t he appellant has spent most of his li

fe institutionalized. 20 In addition to his behavioral recor

ds, his Department

of Correction record documents a continuous hi story of menta l evaluations, co unseling, and concerns. 213-31-81 33 “Subjec t is currently rec eiving [psych ological] interv iews and / or me dication. . . “ 10-23-80 32 “This m an brings to the interview a long an d varied h istory of cha rges, problem behavio r while in priso n, and a c ontinuing n eed for m ental hea lth intervention s. He is pr esently on m aintenan ce psych otropic m edication , although he has received none si nce returni ng to the Main Prison and reports no il l effects. Ea rli er test ing i ndicates an int elle ctual abil ity

below average but within t he normal range. . . .While ther e is no reason t

o suspect at t his ti me the presence of any pr imary mood or thi nking disorder, he does appear to be a man completely i nstitutionali zed and depen dant on a controlled and su pervised environm ent for su rvival.” Dr. Morga n’s Rep ort. 10-2-80 32 “Psycho logical interview s at discre tion of inst. co unselor .” “Menta l Health for Medicati on” “This man was 17 year s old when he was sentenced in 1966 fo r Burg[lary]. . . . . His life ha s been a nightm are sinc e then. It would take pages t

o get a ful l pict ure of the past

. . . .In December 1979 [Phil ip Rhoads] began t o notice gener

al mental confusion. . . . In l ate Janua ry plans we re ma de to hav e him s een by C ovington Menta l Health. Finally he wa s perm itted to go Ap ril 1980 to se e Dr. Es ther Ro berts. W ith her help l ater he was gi ven a neurologi cal evalu ation by Dr. Georgia Montouris .

. . . Her report sai d he had no brain damage. Another refer ral was made to Dr. Roberts at Covington Mental

Health i n July 1980 and was plac ed on m edication . He con tinues to im prove a t this time.” 9-30-80 32 Recomm endation of psychologi cal int

erviews. 7-16-80 32 “Appears m ore in control today but stating that he stil l is in need of assistance for

control o

f his i mpulsive desir

e to hurt hi mself or others especially if they appear i gnorant inbehavior. Obsessive compulsive thinkingevidence as eff ort to r educe anxiety

to more manageable encounters. There

stil l seems to be evid ence of organici ty and fai lure to comprehend various facet s.” Dr. Robert

s, Covington Mental Healt h. 4-9-80 32 “He appeared throug h the int erview sessi on as being qui te preoccupi ed in thought

and manner and frequently exhibiting a smil ing inappr opriate affe ctive r esp ons e to q ues tions . Dep ress ive fe ature s we re ve ry noticeabl e with psy

cho-motor retarda

tion and consci ous focused atte ntion on suicid al ideation tha t centere d on the d eaths o f his pare nts. . . . . Descripti on of prodromal sy mptoms accom panying t he onset of one sided headaches bri ght halo t ype li ghts creati ng effects and overwhelming needs t o isolat e himself from other

s in his surrounding because of irritabi lit

y. Al so exhibit

s paranoid i deation t hat other i nmates are setti ng him up to get hi m in trouble.Circumstanti al and loose ideati on also present . He further more rational izes hi s paranoid t hinking as justi ficat ion for

possibl e homicidal

inten ts agai nst guar

ds and fel low prisoners.

. . . The overallimpressions of Mr. Smith is that he requires further ne uropsyc hologica l evaluation fo r evidenc e of orga nic imp airme nt. . . . This injury is probably accentuating a personality defect or pathologi cal psychosi s manifested by po or impulse and j udgment and paranoid t hinking. ” Dr. Roberts. 7-25-79 31 Reco mm endation of psych iatric treatm ent. 12-2-68 20 “This subject shows a will ingness to wor k but just can’ t seem to get a gra sp on thin gs.”

37 The information revealed at the pos t-conviction hearing

raises doubt as to the appellant’s competency to stand trial , his sanity at the ti me of t he commission of the offense, and his level of mental retar dation. We cannot arrive at any conclusion other tha n finding that trial counsel’s abandonment of furthering its inves

tigation into the appellant’s mental condition, after only a cursory investigation regarding the appellant’s38

IQ, was not

reasonable under the circums tances. Counsel’s duty to investigate deri

ves from counsel’s basic function which is “to make the adversarial testing process work in the particular

case.” Kimmelman v. Morrison , 477 U.S. 365, 384, 106 S.Ct. 2574, 2066 (1986). Because that testing proc ess generally w

ill not function properlyunless defense couns el h as done some investigati on into the prosecution’s cas e and into variousdefense strategies, counsel has a duty to make re asonable investigation s or to make a reasonable decision that makes particul ar investi gations u nnecess ary. Kimmelman v. Morrison , 477 U.S. at 384, 106 S.Ct. at 2066

.

A tactical choi ce not to pursue one course or another should not be confused with th e dutyto investigate; tr ial counsel’s decision not to further investiga te into the appellant’s mental health status and backg round was not strategi c. Although tri al counsel is afforded tremendous deference over matters of trial strategy, the decisi on to select atrial s trategy must be reasonabl y supported and withi n the wide range of professionally competent assistance. Strickland v. Washington , 466 U.S. at 690, 104 S.C t. at 2066. Viewing the perform ance of counsel s olely fro m the per spective o f strategic competence, the reviewi ng court must find that defense counsel made a significant

effort, based on reasonable inves tigation and logical argument, to abl y presentthe defendant’s case to the jury

. An attorney is not ineffective merely because he fails to follow ever y evidentiar

y lead. However, a strategic decisio n is not reasonable when the attor n ey has failed to investi gate his options and make a reasonable c

hoice betw

een them.

In the present case, the State’s evidence consisted of fingerprint evidence taken at the crime scene and the appellant’s confessions tohis niece and Willie Cox. Suffice it to say, the case agains t the appellant was str ong . Faced with t hese facts, trial counsel failed to take advantage of informati on relative to the app ella nt’s mental
con dition ; hence, failing to consider or pursue a defense of insanity or the issue of22 See, e.g. , Seid el v. M erkle , 146 F.3d 750, 755 (9th Cir . 1998) (i neffecti ve performance when trial

counsel fai led to conduct any inv estigat ion at al l int

o his cli ent’s psy

chiatri c history

and therefor e neglec ted to purs ue a pote ntially succes sful defe nse), petition for cert.filed , No. 98-433 (U.S. Se pt. 10, 199 8); Deutscher v. Whitl ey ,884 F.2 d 1152 , 1159-1 160 (9th Cir. 1989 ), vacated on 39 whether the appellant was even competen t to stand trial. Rather,defense counsel proceeded to trial apparently hop ing to cast, th rough cr oss-examination, reasonable doubt upon the State’s proof; in essence, they presented “no defense.” The questi on is not whether an alternat ive defen se would ha ve been successful, but, rather, w hether counsel ignored the only viable trialstrategy under the facts. The evidence available to the def ense tea m not onl y triggered a duty to inve stigate f urther bu t also a du ty t o seek a competency hearing to det ermine whether the appellant was mentally able to consult with the defense team and aid in h is defense with a rea sonabl e degree of rational understandin g. Additionally, if defense c ounsel had presented such evidence rela ting to the appellant’s mental condition, the burden of proving insanit y by a preponderance of the evidence would have shifted to the State to prove his sa n ity at the time of the offense beyond a reasonable doubt. Counsel’s failures in this regard constitute deficient performance. See Antwine v. Delo , 54 F.3d at 1367-68 (holding counsel ineffective in failing to investiga te fully before rejecting strategies based on client’s mental condition); Kenley v. Armontrout , 937 F.2d 1298, 1304-1308 (8th Cir). (same), cert. denied , 502 U.S. 964, 112 S.Ct. 431 (1991).

Reasonable performance of couns el inclu des an adequate investigation of facts, consideration of viable the ories, a nd development of evidence to support those theories. See Hill v. Lockhart , 28 F.3d 832 (8th Cir. 1994), reh’g denied , (1995), cert. denied , 513 U.S. 11 02, 115 S.Ct . 778 (1995). Clearly , counsel’s performance in the presentcase wa s not reasonable and fell below the range of sound professional assistance. To do little or no inves tigation at all onan issue that not only impl icates the accused’s onlyviable defense, but also his present competency, is not a tactical

decision. 22 It is only in very rare circumstances wherea decision not to investigate aother grounds , 500 U.S . 901, 111 S.Ct. 167 8 (1991 ) (Coun sel ma de no tac tical decision not to investigate the defe ndant’s p ossible m ental im pairm ent. He s imply failed to do so.); Evans v. Lew is , 855 F.2d 631, 637 (9th Cir . 1988) (counsel ’s fail ure to pursue the possibil ity of establ ishing the defe ndant’s m ental instab ility constituted de ficient perfo rma nce); see also Bloom v. Calderon , 132 F.3 d 1267 , 1277 (9 th Cir. 199 7), cert. deni ed , -- U.S. --, 11 8 S.Ct. 18 56 (199 8); Hendricks v. Calderon , 70 F.3d 1032-1 044 (9th Cir. 1995 ), cert. deni ed , 517 U.S. 1111, 116 S.Ct. 1335 (199 6); Maddox v. Lord , 818 F.2d 1058, 1061-106 2 (2d Cir. 1987). 40 c l ient’s mental condition would be reasonable after counsel has n otice of the client’s historyof mental problems. Where counsel (1) makes some explorati on of the mental historyof the appellant but fails to take an obvious and easily available step which would have made such a defense viable, (2) does not pro duce rea sonable tactical
reasons for not pursuing further inves tigation, and (3) raises no other plausible defense , courts may find i neffe ctive assistance of counsel. See Walker v. Mitchell , 587 F. Supp. 1432 (E.D. Va. 1984) (emphasis added); see also Loe v. United States , 545 F. Supp. 662 (E.D. Va. 1982), aff’d mem ., 701 F.2d 149 (4th Cir. 1983)

.
Given the severity of the char ges and potential penalty facing the appellan t, we believe that it was the duty o f the ap pellant ’s attorn eys to collect as much information
as possibl e about t he appel lant’s mental h istory . The fa ilure to obtain the records verifyingthe appellant’s treatment with a ntipsychotic medication was not a tactical decision but, rathe r, the result of counsel’s inadequate preparation resulting in their failure to discover the evidenc e. See Laws v. Armontrout , 863 F.2d 1377, 1385 (8th Cir. 1988) ( en banc

), cert. denied , 490 U.S. 1040, 109 S.Ct. 1944 (1989) . We further find it impossible to fathom that the appellant was not preju diced by trial counsel’s fa ilure to explore the appellant’ s mental history for possi ble defenses, proof, an d mitigating evidence. The psychiatric evidence, if properly investigated and prese nted could have totally changed the evidentiary picture in the present case. “When de fense counsel ‘entirely fails to subject the prosecution’s case to meaningful adversar ial testing, there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.’” Brimmer , No. 03C01-9703-CC-00083 ( citing United St ates v. Cronic , 466 U.S. 648, 659, 104 S.Ct. 2039, 2045 (1984)). Thus, we find counsel’s failure to investigate the appell ant’s mental conditionboth deficient and41

prejudicial requiring a new trial.

b. Mitigating Evidence at Sentencing Hearing Although our supreme court has observ ed that there is no

legal requirement

and
no established practice that the accused must offer evidence at the penalty phase of
a capital trial, State v. Melson , 772 S.W.2d 417, 421 (Tenn. Crim. App. 1 989) , cert. denied , 493 U.S. 874, 110 S.Ct. 211 (1989), we remain cognizant of the fact that the basic concerns of co unsel during a capital s entenci ng procee ding are to neutrali ze the aggravating

circumstances advanced by the State and to present mitigating evidence
on behalf of the de fendant. Thus, although there is no requirement that defen se counsel present mitigating evidence in the sentencing phase of a capital trial, counsel’s duty to investigate and prepare for a capit al tria l encompasses both the guilt and the sentencing phases, Goad v. State , 938 S.W.2d 363, 369-370 (Tenn. 1996) (citations omitted), and, b efore selecting a strateg y at sentencing, counsel must conduct a reasonable investigation into the appellant’s background for mitigation evidence to use at sentencing. See Baxter v. Thomas , 45 F.3d 1501, 1513 (11th Cir.1995), reh’g denied , (1995) ( en banc ), cert. denied , 516 U.S. 946, 116 S.Ct. 385 (1995).

In determining whether or not trial counsel wa s ineff ective for failing to present mitigating evidence, our supreme cour t has outlined several factors to consider in making such an evaluati on. First, the review ing court must analyz

e the nature and extent of th e mitigating evidenc e that was available but not presented. Goad , 938 S.W.2d at 371 (citing Deutscher v. Whitley , 946 F.2d 1443 (9th Cir. 1991) ; Stephens
v. Kemp , 846 F.2d 642 (11th Cir. 1988); Cooper v. State , 847 S.W.2d 521, 532 (Tenn. Crim. App. 1992); State v. Adkins , 911 S.W.2d 334 (Tenn. Crim. App. 1994)). Second, the cou rt must determine whether substanti ally similar miti gating evidence w as presented to the jury in either the guilt or penalty phase of the proceedings. Id. (citing Atkins v. Singletary , 965 F.2d 952 ( 11th Cir . 1992), cert. denied , 515 U.S. 1165, 115 S.Ct. 2624 (1995); Clozza v. Mur ray , 913 F.2d 1092 (4th Cir. 1990), cert. denied , 49942

U.S. 91 3, 11 1 S.Ct. 1123 (1991); Melson , 722 S.W.2d at 421. T hird, the court must consider whether there was s uch strong evidence of applicable aggravating factor(s) that the mitigating evidenc e would not

have affected the jury’s det ermination. Id. (citing Fitzgerald v. Thompson , 943 F.2d 463, 470 (4th Cir. 1991), cert. denied , 50 2 U.S. 1112, 112 S.Ct. 1219 (1992); Elledge v. Dugg er , 823 F.2d 1439 (11th Cir. 1987), cert. denied , 485 U.S. 1014, 108 S.Ct. 1487 (1988)).
Byfailing to investigate the appellant’s mental history, defense counse l effe ctively

precluded the jury from con sidering the combination of hi s troubled a n d dysfunctional home life, evidence of his mental retardation, evidence of deficits in his adaptive be h avior, evid ence of his histor y of “ment al confu sion, imp aired me mory, paranoid ideation, [and] auditory h allucinations,” his pr olonged period of institutional iza tion, and his current and prior treatment with antipsy chotic and antidepressant

medicat ion. Even i f the jur y had re jected th e defen se of ins anity, evidence of the appellant’s failure to take antipsychotic medicati on woul d have bee n critical in attempting

to show mitigating c

ircumstances. The

evidence with respect to the appellant’s history of successful treatment with anti-psychotic drugs and of his regression when he discontinued those dr ugs indicated a likeli hood that he was suffering from long-standing and extensiv e mental problems. Yet, the ju ry had no opportunity to consider that evidence.

Given the significant

evidence of

the appellant’s history

of mental conditions and disorders, we can hardly imag ine that the appellant was not pr ejudiced by

his lawyers default. See generally Stephens v.Kemp , 846 F.2d at 653 (“prejudice is clear” where attorne ys failed to investigate adequately client’s mental health and present evidence of client’s menta l pr oblems in sentencing phase); Zant v. Pitts , 436 S.E.2d 4 (Ga. 1993), overruled on other gr ounds by , Turpin v. Hill , 498 S.E .2d 52 (Ga. 1998) (trial counsel ineffective for failing to pr esent defense of mental retardation w here mental examinations

showed that defendant mildly mentally retarded). W e concl u de that a23 As we find that the tri al counsel’ s failu re to conduct a reasonable i nvestigat ion int o the appellant’s mental condition and hi story deni ed the appell ant to eff ectively parti cipate i n the adversarial

process, we need not indivi dually

address the i ssues of competency, sani ty, an d mental retardation. W e again note, however, that the State concedes that counsel was ineffective regarding t he presentati on of proof at the mental ret

ardation h earing. 43 reasonable probability does exist that the jury would not have found that the statutory aggravating factor

s outweighed mitigating factors beyond a reaso nable doubt.

In short, we findthat because the appellant’s attorneys failed to investigate and presentevidence with respect to his mental condition, both the gui lt and the sentencing phases of the appellant’s trial were rendered fundamentally unfair. The appellant has met both prongs of the Stricklandtest. 23

VI. Cumulative Error & Conclusion
Lastly, the appellant complains that the cumulative effect of errors committed by his attorneys, the trial court, and the pr osecution throughout the investi gation, preparation, trial, and appeal of his case violated his rights under the Sixth, Eighth and Fourteenth Amendments, and Article I, Sections 6, 7, 8 ,9, 10, 16, 17, 1 9, and 20 of the Tennessee Constitution. When an attorney has made a series of errors that p revents the proper presentationof a defense, it is appropriate to consider the cumulative impact of the errors in assessi ng prejudice. See Harris by and through Ramseyer v. Wood , 64 F.3d 1432, 1438 (9th Cir. 1995), cert. denied , 490 U.S. 1075, 1 09 S.Ct. 2088 (1989) (citing Crisp v. Duckw

orth , 743 F.2d 580, 583 (7th Cir. 1984), c ert. d enied , 469 U.S. 1226, 105 S.Ct. 1221 (1985); Cooper v. Fitzharris , 586 F.2d 1325, 1333 (9th Cir.1978) ( en banc ), cert. denied , 440 U.S. 974, 99 S.Ct. 1542 (1979) ; United States v. Merrit , 528 F.2d 650, 651 (7th Cir. 1976) ( per curium

)). Counsel’s failure t

o conduct adequate pretrial preparation and investi gation suffices for a s howing of prejudice. Counsel’s constitutionally deficient actions, numerou s throughout their repre sentation of the appellant , c ollectively establ ish a prejudice of such magnitude that we can reach no24 Indeed, as obser ved by Justi ce Reid in hi s separate concurring/di ssenting opi nion in the direct appeal, “this [was a] poorly tri ed case.” Sm ith , 893 S.W.2d at 928 44 conclusion other than the errors cumulatively prej udiced the appellant’s rig ht to a fair proceeding. There is no hesitation in r eaching our conclusion that there is a reasonable probability

that, absent the deficiencies, the outcome of the trial might w ell have been different. Indeed, the plethora and gravity of counsel’s deficiencies rendered the entire proceeding fundamentally unfair.
Upon review of th e entire r ecord, we conclude that the evidence preponderates against the findings of the post-conv iction court. Butler , 789 S.W.2d at 899. In conside ra tion of the prejudice caused the appell ant by trial counsel’ s failure to adequately investigate his mental condition and the prejudice resulting from the cumula tive eff ect of counsel’s numerous constitutional deficiencies in both the preparation and trial of

this case, the judgment of the trial court denying post-convi ction relieffor the offense of first degree murder is r eversed. 24 A new

trial is granted due t

o the glaring nature of counsel’s ineffectiveness throughout all pha ses of this trial.

________

_____________________ ____________

_ DAVID G. HAYES, Jud ge
CONCUR:

________________________________ JOHN H. PEAY, Judge

________________________________ JOE G. RILEY, Judge