IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 21, 2012

MARIO PENDERGRASS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 93-C-1345 Seth Norman, Judge

No. M2011-00126-CCA-R3-PC - Filed August 17, 2012

In a bench trial, petitioner, Mario Pendergrass, was convicted of two counts of first degree

murder, especially aggravated kidnapping, and especially aggravated robbery. The trial court

sentenced him to an effective sentence of life in prison plus forty-four years. Petitioner filed

a petition for post-conviction relief raising the following issues: (1) whether trial counsel was

ineffective for failing to develop mental health evidence; (2) whether trial counsel denied

petitioner his right to testify at trial; and (3) whether petitioner voluntarily waived his right

to a trial by jury. The post-conviction court denied relief following a full evidentiary hearing.

Finding no error, we affirm the judgment of the post-conviction court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which NORMA MCGEE OGLE and

ROBERT W. WEDEMEYER, JJ., joined.

Paula Ogle Blair, Nashville, Tennessee, for the appellant, Mario Pendergrass.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant

Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

In the direct appeal, this court summarized the following facts established at trial:

In April of 1993, Donald Crockett, Sr., a former professional wrestler

who used the name “Pretty Boy Michael Rose,” was employed as a taxi driver
in Nashville. On the evening of April 19, someone called and requested a taxi,

but instructed the dispatcher not to send number 15, the cab driven by

Crockett. Initially, Crockett suspected that the caller was a previous passenger

who owed him money. Moments later, however, the same person called back

and said, “Don’t send Mike Rose.” Crockett, curious about the identity of the

caller, drove to the dispatch point at a Krystal restaurant at the corner of

Dickerson and Trinity Lane. When he arrived, he observed two men at a

telephone booth, one of whom he recognized as Lorenzo Ensley, and the other

of whom he identified at trial as the defendant. Crockett described the

1

defendant, whom he did not know, as having a shaved head with “a little bitty

ball on the back.” He testified that when he asked Ensley why they did not

want to ride in his cab, Ensley responded, “Well, I didn’t want to get you in no

more trouble.” Crockett, who explained that he interpreted the comment to

mean that illegal drugs were involved, then called the dispatcher and requested

another cab. The victim, Robert Glen Pruitt, was dispatched in his taxi. He

arrived at the Krystal at approximately 10:30 p.m.

Later that evening, a security device in the victim’s taxi alerted the

other cab drivers of trouble. When activated, the security device shut down all

radio communications other than those from the distressed driver. Crockett

overheard a reference to Stevens Lane and Clarksville Highway and drove to

that location. Neither the victim nor his cab was there at the time of his arrival.

Crockett then drove to a “drug house” on Douglas and inquired as to the

whereabouts of Ensley. When he learned that Ensley had been staying at the

Colony Motel, Crockett drove to the motel. Police officers were already on the

scene and instructed Crockett to leave after he confronted Ensley. The victim’s

cab was located the following morning near Ewing Lane. Later, the victim’s

body was found in a field at Brick Church Lane.

Crockett acknowledged that he had never seen the defendant prior to

the night in question and had not overheard any conversations between Ensley

and the defendant while at the Krystal restaurant. He maintained that he

warned Ensley not to hurt any of his fellow cab drivers because Ensley

appeared to be “high.” While conceding that he was not “one hundred percent

certain” at the time of his initial identification of the defendant, he testified, “If

there’s a God in heaven, that’s the man.”

 Petitioner is referred to as “defendant” in the direct appeal opinion. 1

-2-
Bernadette Mitchell often rode in the victim’s cab when she could not

get a ride home from work. On the evening of the victim’s abduction between

10:30 and 11:00 p.m., Ms. Mitchell was at the Krystal on the corner of

Dickerson and Trinity with a friend when the defendant and another man

approached their car and asked for a ride. She recalled that the defendant did

all of the talking and that the other individual stood in the background. When

Ms. Mitchell explained that she would not provide the transportation because

she did not know them, the defendant replied, “I am Mario Pendergrass. Now

you know my name.” At that point, the victim arrived in his taxi and, upon

seeing Ms. Mitchell, joked that because she worked at a Taco Bell, she should

not eat at a Krystal. The defendant and his companion then got into the cab and

left. After seeing news of the murder on the next day’s 5:30 a.m. broadcast,

Ms. Mitchell called the police and told them of her encounter with the

defendant and the victim.

Detective Clinton Vogel of the Metro Police Department’s murder

squad investigated the crime. During the early morning hours of April 20, the

victim’s taxi was found off of Ewing Lane on a dead-end street hidden behind

a closed business. After speaking with Donald Crockett, Detective Vogel went

to the Colony Motel to talk to Lorenzo Ensley. The detective testified that

Crockett arrived later and identified Ensley. Although the defendant was in the

same hotel room as Ensley, Detective Vogel did not speak directly with him

at that time. There were other occupants in Ensley’s motel room. When asked

about their activities the night before, one of the occupants stated that they had

been watching television in the motel room. The defendant made no response.

Detective Vogel testified that the body of the victim had a gaping

wound to the left side of his head. The location of the blood indicated that the

victim had been shot in the field where the body was found. The detective also

described a series of lacerations that he observed on the victim’s left index

finger. The victim’s pockets appeared to have been turned inside out and no

money was found on the body. Later, his wallet was found among his personal

belongings. The following day, Detective Vogel returned to the Colony Motel.

The defendant, Ensley, and a few other individuals were there. Ensley directed

Detective Vogel and Detective Ed Moran to two vacant lots in Parkwood

subdivision where they recovered a sawed-off single-shot 12 gauge shotgun.

A single spent shell was in the barrel of the gun.

Detective Vogel acknowledged that Crockett had initially told police

that he left the Krystal restaurant before the victim arrived. He also admitted

-3-
that of the four men in the room at the Colony Motel, one of whom was the

defendant, Crockett could initially identify only Ensley.

Tellas Ensley testified that in April of 1993, he lived at the Colony

Motel with his two younger brothers, Lorenzo and Timothy Ensley, and the

defendant. He stated that he used to sell drugs on Dickerson Road and that he

became acquainted with the victim by riding in his cab. According to Tellas

Ensley, he learned of the victim’s disappearance when Crockett came to the

motel and asked if he had heard anything. He testified that the defendant and

Lorenzo Ensley returned to the motel between 9:45 and 11:30 p.m. that

evening. Later, while they were watching a movie, a special news bulletin

announced that a taxi driver had been killed. In response to the news report,

Lorenzo Ensley remarked, “It wasn’t worth it.” The defendant replied that if

he was “going down,” Lorenzo Ensley was going with him. According to

Tellas Ensley, the defendant then explained that he killed the victim because

he did not have enough money for the cab fare, which was $12 to $13. The

defendant then admitted that he had removed the victim from the cab and shot

him in the head. After making the remarks, the defendant left the room for

three to five minutes and then came back with a shotgun and a pistol. Ensley

recalled that the defendant then threatened to kill everyone in the room if

anything was said about the crime. Later, when the police had left the motel,

both the defendant and Lorenzo Ensley asked Tellas Ensley to inform police

that they had been in the room at the time of the murder.

Don Carman, a TBI agentspecializing in forensic firearm identification,

described the shotgun recovered by police as functional and capable of firing

12-gauge shells. He was unable to determine whether the shell recovered by

police was fired by the shotgun. Because the weapon had been left outside, the

likelihood of positive identification was lessened. Agent Carman stated,

however, that both the shell and the wadding discovered next to the body were

consistent with the type of ammunition used by the weapon.

James Robert Goodman, an officer with the identification section of the

Metro Police Department, investigated the murder scene. While he was

photographing the area, he found shotgun wadding “right next” to the victim.

Officer Goodman testified that he also found human tissue in the area

surrounding the body. In his opinion, the victim had been killed where police

found the body.

-4-
Steve Stone, who is also an officer with the Metro Police Department

identification section, testified that he investigated the area where the victim’s

taxi cab was located. He stated that the cab was towed to a secure garage

where it was processed inside and out for fingerprints. According to Stone,

latent prints of the defendant were on the driver’s side trunk deck

(fingerprints) and the driver’s side rear quarter panel (a partial palm print).

James Patterson, an acquaintance of the defendant who wasliving in the

Colony Motel at the time of the murder, recalled that he was “sitting around

getting high” with Tim and Lamont Ensley when Lorenzo Ensley and the

defendant arrived. Patterson testified that when Lorenzo made a joking remark

to his brother Tim about killing someone, the defendant responded by striking

the television and instructing Lorenzo that he “need[ed] to stop bullshitting.”

According to Patterson, the defendant then told Lorenzo that if he was “going

down,” Lorenzo was going with him. Later, the defendant warned Patterson,

“Don't let nothing we talked about leave the room .”

Patterson acknowledged that he had omitted important facts when

interviewed by investigators for the state and the defense. He admitted that he

had used cocaine “off and on” for approximately fifteen years and

acknowledged that he had spent the day of the murder smoking marijuana,

drinking beer, and using cocaine. Patterson estimated that he used cocaine

approximately ten times that day and admitted that he engaged in such use two

to three times per week. He testified that he may have used cocaine before

testifying for the state. Patterson denied having used cocaine the morning of

his cross-examination by the defense but conceded that he may have been

“high” the preceding evening. He denied buying drugs from the Ensleys and

maintained that he merely shared drugs with them.

Larry Flair of the Metro Police Department, the lead detective assigned

to the murder, learned at 2:00 a.m. following the murder that the defendant’s

fingerprints were on the victim’s cab. At approximately 7:00 a.m., he and two

other detectives questioned the defendant at the Colony Motel. The defendant

claimed that “he had been there all night and didn’t know anything about it.”

Afterward, the defendant was arrested and advised of his Miranda rights.

Upon his arrival at the Criminal Justice Center, the defendant was advised of

his rights a second time. Detective Flair testified that the defendant then

waived his rights and admitted his involvement in the abduction of the victim.

Detective Flair recalled that the defendant claimed that he and Lorenzo Ensley

went several places in the victim’s cab and that Ensley left the cab, returned

-5-
with a shotgun, and said, “Just don’t say anything.” The defendant stated that

Ensley robbed the victim, forced him into the trunk, drove to a remote location,

and shot him. At trial, Detective Flair testified that he did not record the

interview and that the defendant agreed to repeat the interview on videotape.

After moving to the interview room and going over the Miranda form,

however, the defendant asked to speak with an attorney. The detective ceased

the interview.

Detective Terry McElroy investigated the scene where the body was

discovered. He found no money in the victim’s possession. Later on the

morning following the murder, Detective McElroy accompanied Detective

Flair to the Colony Motel. He recalled that the defendant initially denied any

knowledge of or involvement in the murder. Detective McElroy, who

confirmed that the defendant was advised of his Miranda rights first at the

motel and later at the Criminal Justice Center, asserted that the defendant

provided details of the crime. According to McElroy, the defendant maintained

that after he and Lorenzo Ensley got into the victim’s cab, they went to the

residence of Ensley’s relative, where Ensley obtained a sawed-off shotgun.

The defendant acknowledged that they drew the weapon and forced the victim

into the trunk of the cab. The defendant stated that after driving around for a

while, they stopped along Brick Church Lane and removed the victim from the

trunk. According to the defendant, Ensley then walked the victim into a field

and shot him; upon his return, Ensley handed the weapon to the defendant and

instructed him to remove the shell casing. The defendant claimed that he was

unable to do so and they decided to dispose of the weapon with the shell

casing. He stated that they then abandoned the cab and returned to the motel.

Detective McElroy acknowledged that the defendant’s statement was not

recorded and testified that the defendant initially agreed to repeat his statement

on videotape, but changed his mind and requested counsel after being advised

of his Miranda rights a third time. Detective McElroy testified that after the

interview ended he overheard the defendant acknowledge to his mother that

he was present when the victim was killed. He also overheard the defendant

and his mother discussing the disposal of the weapon.

Three days after the murder, Detective McElroy learned through

another officer that the defendant wanted to speak with him. One and one-half

hours later, a Davidson County Sheriff’s Deputy paged Detective McElroy a

second time at the request of the defendant. When he returned from Rutherford

County that evening, Detective McElroy met with the defendant at the jail. The

defendant signed a specially prepared form acknowledging that he had had no

-6-
contact with the detective since the initial interview and that the second

meeting was made of his own free will and not the result of any threat or

promise. After receiving Miranda warnings, the defendant executed a written

waiver and made a recorded statement. The defendant stated that on the

evening of the murder, he was at the Colony Motel with Lorenzo Ensley and

others when they were told to “vacate the premises [be]cause there were too

many people.” After unsuccessfully attempting to make contact with Lorenzo

Ensley’s brother, he and Ensley walked to a nearby Amoco station to use a pay

telephone. The defendant claimed that he called his mother and that Ensley

used a second pay telephone to call for a cab. At that point, the defendant

informed Ensley that he did not have money for a cab and agreed to Ensley’s

suggestion that they accept the ride and escape without paying. The defendant

claimed that when the cab arrived, Ensley and the driver acted as though they

knew one another. The cab left and when the defendant asked why, Ensley

replied that he knew the cab driver. Later, the defendant saw the same cab

driver at the Krystal and heard the cab driver warn Ensley, “[J]ust don’t kill my

friend.” The defendant told Detective McElroy that the first cab driver then left

and, later, the victim arrived.

The defendant also informed Detective McElroy that he and Ensley

initially went to the home of Ensley’s aunt. When they left, the defendant

noticed a gun slide out of Ensley’s sleeve. The defendant stated that he

inquired about the weapon and Ensley instructed him to be quiet. The

defendant claimed that when Ensley held the gun to the victim’s head, he

begged Ensley to let the victim go. The defendant contended that Ensley

ordered the victim to stop the cab and, after assuring the defendant that

“everything[ ][was] cool,” put the victim in the trunk. The defendant asserted

that he continued to beg Ensley not to kill the victim and that Ensley assured

him that he would not. He stated that Ensley eventually stopped the cab in a

dark area, got the victim out of the trunk, and pointed the gun at him. The

defendant told Detective McElroy that he heard a gunshot and then saw the

victim lying on the ground with gravel on his face. He said that Ensley

returned to the cab and instructed him to wipe his fingerprints “off of

everything.” According to the defendant, Ensley told him to remove the spent

shell from the shotgun. When he was unable to do so, Ensley stopped the cab

and directed him to get out and hide the gun. Ensley then drove to a remote

location and abandoned the car. The defendant maintained that he had seen

Ensley with the gun several days before the shooting. He also implicated

Ensley in the robberies of a local convenience store and motel, as well as in the

homicide of another taxi driver.

-7-
State v. Mario Pendergrass, No. M1999-02532-CCA-R3-CD, 2002 WL 517133, at *1-5

(Tenn. Crim. App. April 5, 2002), perm. app. denied (Tenn. Oct. 7, 2002).

II. Procedural History

After a bench trial, petitioner was convicted of premeditated murder, felony murder,

especially aggravated kidnapping, and especially aggravated robbery. The trial court merged

the murder convictions and imposed a life sentence for murder and twenty-two years each

for especially aggravated kidnapping and especially aggravated robbery. The sentences for

especially aggravated kidnapping and especially aggravated robbery were consecutive to

each other and consecutive to the life sentence for an effective sentence of life plus forty-four

years. On direct appeal, this court affirmed the convictions and sentences. Id.

Petitioner filed a pro se petition for post-conviction relief on April 16, 2003. The trial

court summarily dismissed the petition. On appeal, this court reversed the trial court’s

dismissal of the petition and remanded the case for appointment of counsel. Mario

Pendergrass v. State, No. M2003-02144-CCA-R3-PC, 2005 WL 176494, at *3 (Tenn. Crim.

App. Jan. 25, 2005). Petitioner, with the assistance of counsel, filed an amended petition.

After a full hearing, the post-conviction court denied post-conviction relief. This appeal

follows.

.

III. Facts from the Post-Conviction Hearing

The Davidson County Criminal Court held an evidentiary hearing on September 27,

2010. The hearing began with petitioner’s motion for the judge to recuse himself on the

basis that petitioner believed him to be biased because the judge heard the facts established

at trial and conducted the sentencing hearing. Upon denying petitioner’s motion to recuse,

the court heard the following testimony of trial counsel and petitioner:

Attorney One, now a professor of law at the New England School of Law in Boston,

2

Massachusetts, testified that he was employed by the Davidson County Public Defender’s

Office from May, 1990, until May, 1996. During that time, Attorney One’s law practice was

exclusively criminal in nature. At the time Attorney One began representing petitioner, he

At trial, attorneys from the Davidson County District Public Defender’s Office represented

2

petitioner. To avoid confusion, this court will refer to petitioner’s original lead attorney as “Attorney One.”

“Attorney Two” shall refer to the attorney who, although Attorney One’s supervisor, assisted and supported

Attorney One in representing petitioner before assuming a more central role in the case due to Attorney

One’s relocation to Massachusetts. Attorney Three shall refer to an assistant district public defender who

assisted Attorneys One and Two. At the time of the hearing on the post-conviction petition, Attorney Two

was deceased. 

-8-
had been practicing law for approximately three years. He was assigned as principal counsel,

but had support from a senior assistant district public defender (hereinafter “Attorney Two”)

and various staff members. Attorney One represented petitioner through his trial in 1998,

but when he physically left the public defender’s office in 1996, Attorney Two assumed the

role of lead counsel.

During 1994 or 1995, the State notified Attorney One that it would seek the death

penalty in petitioner’s case. At that time, the supreme court rule regarding qualification of

capital case lawyers did not exist; however, Attorney One had tried approximately fifteen to

twenty murder cases and had been involved in an equal amount that were resolved without

a trial. Attorney One’s particular position of Senior Assistant Public Defender/Criminal

Court Floating Lawyer involved handling cases in different divisions that were either

particularly long or relatively complex.

During his representation of petitioner, Attorney One met with petitioner more than

one hundred times, in addition to telephone calls and letters. After petitioner was moved to

Riverbend Correctional Facility, Attorneys One and Two met with petitioner primarily on the

weekends, at least once per month. After Attorney One left the district public defender’s

office, petitioner continued to call him collect, and Attorney One traveled back to attend pretrial hearings and to meet with petitioner.

Petitioner’s attorneys sought the assistance of mental health experts in preparing for

the trial and the penalty phase of the case. The State withdrew its notice of intent to seek the

death penalty in July 1998, but until that time the defense attorneys prepared for the case as

though it would be a death penalty case. The defense sought funds ex parte for mental health

experts and attempted to develop mental health evidence. Attorney One recalled that

petitioner was evaluated by Dr. Tom Neilson. Dr. Michael Batari in Georgia reviewed

petitioner’s records, and Dr. Harold Burstajyn, a psychiatrist at Harvard Medical School,

assisted in examining and developing issues. Vanderbilt Hospital conducted a positron

emission tomography (“PET”) scan to look for disease of or injury to the brain. Although

Dr. Neilson diagnosed petitioner as having Intermittent Explosive Disorder in 1995, the

doctor did not believe that the diagnosed disorder would have supported an insanity defense.

The doctor’s concern with petitioner’s disorder was that it would cause him to decompensate

under the pressures of trial and would thus render him incompetent to stand trial either

immediately before or during the trial.

Attorney One further testified that in July of 1998, petitioner’s attorneys reached an

agreement with State for the State to withdraw its notice of intent to seek the death penalty

in exchange for petitioner’s waiver of his right to a jury trial. Attorney One believed that to

be a positive outcome, as it removed the death penalty from consideration. The result was

-9-
also beneficial in that petitioner would not be subject to the stress of a jury trial. At the time

petitioner executed the waiver of his right to a jury trial, Attorney One believed that he was

competent.

However, a short time after petitioner executed the waiver, his attorneys grew

concerned about his competence. Consistent with the information counsel received from the

various medical professionals, petitioner developed fears of being manipulated and had

difficulty trusting people. In Attorney One’s opinion, it was not unusual to have clients who

were distrustful of the criminal justice system in general and the judges and attorneys

specifically. Petitioner also became delusional. At one point, petitioner indicated that he no

longer wanted the district public defender’s office to represent him. Attorney One and

members of his staff discussed the issue with petitioner. Each attorney met individually with

petitioner and collectively they forwarded their observations via e-mail to Dr. Burstajyn at

Harvard. Dr. Burstajyn opined that petitioner’s reaction in becoming mildly delusional was

not an uncommon response to a sudden removal of extreme pressure, in this case, removal

of the possibility of the death penalty. Dr. Burstajyn did not believe that petitioner’s mental

condition raised a question about competence. Petitioner became more calm after a few days.

During this delusional period, petitioner reportedly suffered from a delusion called the

“Masonic Conspiracy.” Pursuant to this conspiracy theory, petitioner asserted to counsel’s

staff that he believed himself to be Jesus Christ, the Son of God. Attorney One and his staff

communicated about whether petitioner would be competent enough to decide whether to

testify and to actually testify if he so chose. Attorney One’s view of “competency” embraced

a range of factors, including being able to communicate effectively with counsel, to testify

coherently if he chose to do so, to understand and appreciate the significance of the

proceedings, and to make rational judgments about decisions during the course of the

proceedings. Attorney One and his staff agreed that the touchstone for going forward was

whether petitioner could assist in his own defense. Attorney One noted that, at that point in

the process, they did not require much assistance from petitioner. Attorney One and his team

did not seek further evaluation of petitioner because the recent delusions would have no

affect on petitioner’s sanity at the time of the offense and further e-mail correspondence with

Dr. Burstajyn at Harvard yielded the professional opinion that his delusion was consistent

with the sudden removal of extreme stress. Dr. Burstajyn did not believe that the delusions

gave rise to a competency issue. Had Dr. Burstajyn’s conclusions indicated otherwise,

Attorney One would have sought an additional evaluation. Petitioner’s deterioration and

delusions about the Masonic Conspiracy were very intense immediately following execution

of the waiver of his right to trial by jury. Attorney One did not observe the symptoms a few

weeks later as they began to prepare for trial. As time for trial neared, petitioner no longer

expressed a desire for his attorneys to withdraw from the case. Nothing in petitioner’s

-10-
behavior at trial led trial counsel to have concerns regarding petitioner’s competence or

mental state.

In addition to developing mental health evidence, Attorney One and his staff

thoroughly investigated the events of petitioner’s life. He learned of petitioner’s history in

foster care, his juvenile mental health history, and his history of inpatient and outpatient

hospitalization for mental health issues. Attorney One studied petitioner’s educational

history, including early intelligence testing. He maintained a trial notebook with tabbed

sectionsfor each prospective guilt phase witness. The sections contained statementsreceived

from the State and interviews Attorney One or his staff conducted.

During pre-trial preparations, petitioner participated in his defense. During the course

of the proceedings, the attorney-client relationship was effective. Attorney One attributed

the occasional conflict as being consistent with petitioner’s mental state and the pressures of

being held in a maximum security facility awaiting trial and previously facing the death

penalty. Attorney One did not recall whether he litigated petitioner’s alleged illegal arrest

and seizure as a pre-trial motion. If he did not, he did not see a basis for such a challenge.

Law enforcement did not seize any incriminating physical evidence as a result of petitioner’s

arrest. The most incriminating evidence against petitioner were his statements. Attorney

One fully litigated the admissibility of petitioner’s statements by pre-trial motion in the trial

court and by interlocutory appeal to this court. He also litigated a Brady issue in an attempt

to discover the exact terms of the State’s agreement with petitioner’s co-defendant.

In preparing for trial, Attorney One interviewed Tellas Ensley, a witnessfor the State.

Attorney One conducted the interview and two other staff members were present. The

interview was tape-recorded and Attorney One secured a transcript of the interview. The

State offered the witness during its case-in-chief. On cross-examination, the witness claimed

that he was not the person on the tape. Attorney One attempted to impeach the witness’s

testimony with the tape; however, because no witnesses to the interview were available to

authenticate the recording, the court disallowed introduction of the tape. The court permitted

Attorney One to use the transcript to impeach the witness.

Attorney One advised petitioner of his right to testify on his own behalf. Attorney

One and his staff spent considerable time with petitioner to develop his testimony. Attorney

One felt that petitioner was prepared if he had chosen to exercise his right to testify.

Petitioner made the informed decision not to testify. Attorney One did not recall whether he

advised petitioner not to testify, but was certain that petitioner’s competency was not a factor

in making the decision.

-11-
Petitioner testified at the evidentiary hearing that he had regular contact with trial

counsel and members of the staff. He recalled seeing a doctor early in the legal process and

receiving a prescription for Depakote. Petitioner stopped taking the medication a month later

because he did not like the side effects. The medication made petitioner experience “highs

and lows.” Petitioner maintained that no one informed him that he had been diagnosed with

Intermittent Explosive Disorder.

Petitioner did not trust Attorney Two. He would refuse visits with Attorney Two

because of his mistrust. Petitioner’s mistrust was based on Attorney Two allegedly sending

other attorneys to meet with petitioner. One such attorney allegedly gave petitioner a credit

card from Attorney Two and told him to pick out anything he wanted from Eastbay. In

exchange, the attorney asked petitioner to sign a waiver stating that he would accept a life

sentence. The attorney supposedly told petitioner that Attorney Two sent him to speak with

petitioner because petitioner would identify better with said attorney because they were both

African-American. After that development, petitioner declined visits with Attorney Two

until petitioner met one of the female attorneys (hereinafter “Attorney Three”) from the

district public defender’s office.

Petitioner was not concerned that he faced a possible death sentence. He believed his

attorneys were more concerned about it than he was, perhaps because they would feel guilty

if he were sentenced to death. For that reason, petitioner felt that his attorneys were more

inclined to encourage him to accept an agreement rather than to fight for his defense. During

his first meeting with Attorney One, petitioner stated that he would not accept a plea and that

he wanted to “fight adamantly” to defend himself.

When Attorney Two presented petitioner with the waiver of his right to a jury trial,

petitioner recalled that Attorney Two told him that a judge would look at the case differently

than a jury would. Petitioner stated he just wanted to proceed to trial. Petitioner also stated

he wanted to take the stand and ask questions of the judge. Although Attorney Two allegedly

responded that petitioner would be able to do so, he never had the opportunity.

Petitioner further testified that at the time he executed the waiver, he told both of his

attorneys that he wanted to take the stand and question the judge about the waiver. He

wanted to ask whether the judge would consider the polygraph that petitioner completed.

Petitioner knew that the judge would have access to the entire police report and wanted to

ask the judge if, after reading the contents, he could remain fair and neutral. Petitioner

wanted to confirm that he would be able to testify and speak on his own behalf, as he had

been reprimanded for speaking out in court on prior occasions. Petitioner also sought

clarification from the judge about whether he could be convicted of both first-degree murder

and felony murder. He further wanted to confirm the ranges of punishment for the offenses

-12-
with the judge. Petitioner did not wish to sign the waiver until he questioned the judge.

Attorney Two informed petitioner that there was a deadline by which he must be sign the

waiver and return it to his attorneys. Petitioner was adamant that until he took the stand and

questioned the judge, he did not want the waiver submitted. His position was that his signing

the waiver did not authorize his attorneys to submit it. He believed that his agreement with

his attorneys was that they would not move forward with submitting the waiver until he had

the opportunity to question the judge and that if he was not permitted to take the stand and

question the judge about the waiver, he would be able to revoke it. His attorneys later

informed him that he would not be allowed to question the judge. Petitioner stated at the

evidentiary hearing that he would rather have faced the death penalty than for his life to be

worthless.

Petitioner testified he was informed that he had a right to testify on his own behalf.

He told Attorney Two that he wanted to testify, and he prepared for his testimony. Attorneys

Two and Three and another individual from the district public defender’s office met with

petitioner to prepare his testimony. During the trial, petitioner reminded Attorney Three that

the defense team had told him that he could take the stand. She responded by telling him to

calm down and be patient. From that point forward, petitioner did not trust his attorneys.

He felt that he was being coerced and that he had no input into the direction the attorneys

were taking the case. If petitioner had testified, he would have maintained his innocence to

the court. He also would have allegedly rebutted some of the testimony of the State’s

witnesses.

At the post-conviction hearing, petitioner stated that one of his attorneys should have

interviewed a juvenile detention officer regarding statements made by his co-defendant

indicating that the co-defendant had committed the murders. He was unaware of whether his

attorneys discovered the officer’s identity and whether anyone interviewed the officer. One

of his attorneys told petitioner that the testimony of another witness, the co-defendant’s

brother, would have been beneficial to highlight the discrepancy in Steve Tellas’s testimony.

3

Petitioner felt that someone should have interviewed his co-defendant’s aunt and her

husband, as his co-defendant had asserted that the murder weapon belonged to the husband

of the co-defendant’s aunt. The testimony would have refuted the State’s contention that the

gun belonged to petitioner. Petitioner had not spoken with any of the witnesses and did not

know what their testimony would have been. The only information he had regarding their

potential testimony came from his attorneys.

Attorney One testified about the witness Tellas Ensley. Presumably, Tellas Ensley and Steve 3

Tellas are the same individual in light of the context.

-13-
Petitioner believed his attorneys erred in failing to challenge the testimony of a

witness. The witness testified that petitioner hid the guns after the murders. The witness then

testified that he showed the police where the guns were hidden. Petitioner maintains that

counsel did not challenge the contradictory statements made by the witness. Petitioner

observed that his attorneys became overly relaxed after the death penalty was removed from

consideration and asserted that they should have advanced a more effective defense.

Petitioner complains that his attorneys never informed him of the maximum and

minimum punishments for the offenses. Once the death penalty was no longer a

consideration, they did not inform petitioner of the sentencing possibilities.

The post-conviction court issued a thorough order denying post-conviction relief on

December 7, 2010.

IV. Analysis

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that

his or her “conviction or sentence is void or voidable because of the abridgement of any right

guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.

Code Ann. § 40-30-103 (2006). A post-conviction petitioner bears the burden of proving his

or her factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)

(2006); Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (citing Grindstaff v. State, 297

S.W.3d 208, 216 (Tenn. 2009)). “‘Evidence is clear and convincing when there is no serious

or substantial doubt about the correctness of the conclusions drawn from the evidence.’”

Lane, 316 S.W.3d at 562 (quoting Grindstaff, 297 S.W.3d at 216).

Appellate courts do not reassess the trial court’s determination of the credibility of

witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245

S.W.3d 356, 362 (Tenn. 2008)). Questions regarding the credibility of witnesses are matters

entrusted to the trial judge as the trier of fact. Dellinger, 279 S.W.3d at 292 (citing State v.

Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact carry

the weight of a jury verdict and are conclusive on appeal unless the preponderance of the

evidence is otherwise. Rigger v. State, 341 S.W.3d 299, 307 (Tenn. Crim. App. 2010) (citing

Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631

(Tenn. Crim. App. 1997)). However, conclusions of law receive no presumption of correctness on appeal. Rigger, 341 S.W.3d at 307 (citing Fields v. State, 40 S.W.3d 450, 453 (Tenn.

2001)). As a mixed question of law and fact, this court’s review of petitioner’s ineffective

assistance of counsel claims is de novo with no presumption of correctness. Dellinger, 279

S.W.3d at 294 (citing Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007)).

-14-
The Sixth Amendment to the United States Constitution, made applicable to the states

through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution

require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,

145 S.W.3d 571, 598 (Tenn. 2004) (citing Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975)). The

constitutional right to counsel attaches when adversarial judicial proceedings are initiated

against the defendant. State v. Mitchell, 593 S.W.2d 280, 286 (Tenn. 1980). “Initiation” is

construed as issuance of an arrest warrant, the time of the preliminary hearing in cases where

an arrest warrant is not first issued, or by indictment or presentment issued by a grand jury.

Id. at 286.

To prevail on his claim of ineffective assistance of counsel, petitioner must

demonstrate both that his lawyer’s performance was deficient and that the deficiency

prejudiced the defense. Finch, 226 S.W.3d at 315; Vaughn v. State, 202 S.W.3d 106, 116

(Tenn. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Baxter, 523

S.W.2d at 936). To prove that counsel’s performance was deficient, petitioner must establish

that his attorney’s conduct fell below an objective standard of “‘reasonableness under

prevailing professional norms.’” Finch, 226 S.W.3d at 315 (quoting Strickland, 466 U.S. at

688). As our supreme court has previously held:

‘[T]he assistance of counsel required under the Sixth Amendment is counsel

reasonably likely to render and rendering reasonably effective assistance. It is

a violation of this standard for defense counsel to deprive a criminal defendant

of a substantial defense by his own ineffectiveness or incompetence . . .

Defense counsel must perform at least as well as a lawyer with ordinary

training and skill in the criminal law and must conscientiously protect his

client’s interest, undeflected by conflicting considerations.’

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974)). On appellate review of trial counsel’s performance, this court “must make every

effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s conduct, and to evaluate the conduct from the perspective of counsel at that time.”

Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689); see

Finch, 226 S.W.3d at 316.

To establish that petitioner suffered prejudice as a result of counsel’s deficient

performance, petitioner “‘must establish a reasonable probability that but for counsel’s errors

the result of the proceeding would have been different.’” Finch, 226 S.W.3d at 316 (quoting

Vaughn, 202 S.W.3d at 116). “A ‘reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Vaughn, 202 S.W.3d at 116 (quoting Strickland, 466

U.S. at 694); see Finch, 226 S.W.3d at 316. As such, petitioner must establish that his

-15-
attorney’s deficient performance was of such magnitude that he was deprived of a fair trial

and the reliability of the outcome was called into question. Vaughn, 202 S.W.3d at 116

(citing Strickland, 466 U.S. at 694; State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

Petitioner must establish both deficient performance and prejudice therefrom to be

entitled to post-conviction relief. Vaughn, 202 S.W.3d at 116; Howell, 185 S.W.3d at 326.

It follows that if this court holds that either prong is not met, we are not compelled to

consider the other prong. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004).

In his petition for relief, petitioner first asserts that he was incompetent to stand trial

and incompetent to waive his right to a trial by jury. He claims that his attorneys were

ineffective in failing to obtain an additional mental health evaluation, in failing to file a

motion to have him declared incompetent, and in failing to move that the jury trial waiver be

set aside on this basis. Because petitioner’s claim stems from his competency at or around

the time he executed the waiver of a jury trial, evaluation of this issue necessarily involves

an analysis of his attorneys’ actions in preparing for trial (pre-waiver) and performance after

he signed the waiver (post-waiver).

As part of his trial preparation, Attorney One sought assistance in developing mental

health evidence through four separate sources. He secured a personal mental health

evaluation for petitioner. Attorney One retained two additional experts to review petitioner’s

records and the mental health evaluation. One of the experts consulted with counsel

regularly regarding petitioner’s behavior. Attorney One also obtained a “PET” scan for

petitioner at Vanderbilt Hospital. The testimony developed at the evidentiary hearing

established that, through the mental health evaluations of petitioner, Attorney One learned

that petitioner suffered from Intermittent Explosive Disorder. He testified that while none

of the evaluations supported an insanity defense, the evidence would have been essential

during the penalty phase of the capital trial. Petitioner failed to present evidence to the

contrary at the evidentiary hearing.

The post-conviction court found that Attorney One’s representation was not deficient

in this respect. We agree. Petitioner failed to present clear and convincing evidence of his

pre-waiver insanity or incompetence, and after de novo review of the trial court’s conclusion

of law, we credit the trial court’s finding that counsel performed effectively. Because

petitioner has failed to establish the first prong of an ineffective assistance of counsel claim

with respect to this issue, that of deficient performance, we are not compelled to review

whether petitioner suffered prejudice.

Petitioner further avers that he was incompetent to execute the waiver of his right to

trial by jury. The post-conviction court heard testimony that, in the days following

-16-
petitioner’s signing of the waiver, he experienced mildly delusional behaviors such as a fear

of being manipulated and general mistrust of his attorneys and the criminal justice system.

Further evidence demonstrated that petitioner experienced delusional behavior in the period

immediately following his execution of the waiver of his right to a jury trial. Attorney One

testified he was aware of the delusions and was concerned about petitioner’s competence to

go forward.

Attorney One contacted his retained expert, a psychiatrist at Harvard University, and

described petitioner’s delusions and odd behavior. The doctor explained that petitioner’s

behavior was consistent with the sudden removal of a stressor, i.e., an impending capital

murder trial that could result in a death sentence. The doctor did not believe that the

delusions gave rise to a competency issue. Attorney One also testified that petitioner

experienced conspiracy theories and more elaborate delusions, in which he believed himself

to be Jesus Christ. Petitioner’s behavior led Attorney One to again consult with the Harvard

psychiatrist, who stated that the manner of petitioner’s behavior was a very common reaction

among neuropsychiatrically vulnerable individuals upon the removal of extreme stress and

did not rise to the level of incompetence. Petitioner’s psychiatric symptoms dissipated after

a few days, after which petitioner did not suffer from further delusions. Attorney One stated

that petitioner displayed no signs of paranoia or delusions during the bench trial.

Relying on the expert’s opinion, Attorney One did not seek a post-waiver mental

health evaluation. A defense attorney “must conduct appropriate investigations, both factual

and legal, to determine what matters of defense can be developed.” Baxter, 523 S.W.2d at

933. Attorney One thoroughly investigated the implications of petitioner’s delusional

behavior as it pertained to a possible mental health issue. When petitioner became delusional,

Attorney One sought the advice of their expert, who did not recommend further testing. We

decline to hold counsel ineffective for following the advice of their expert. See Dennis Wade

Suttles v. State, No. E2008-02146-CCA-R3-PD, 2011 WL 1642640, at *26 (Tenn. Crim.

App. April 29, 2011) (holding that when an expert advises against further testing, the court

will not deem counsel ineffective for failing to pursue the matter further), perm. app. denied

(Tenn. Nov. 16, 2011).

Although petitioner testified on his own behalf at the evidentiary hearing, he failed

to present medical or mental health evidence to support the proposition that petitioner was

incompetent either to stand trial or to waive his right to a trial by jury. In the absence of such

evidence, we hold that the petitioner has not established by clear and convincing evidence

that his trial attorneys were ineffective in failing to obtain a second, post-waiver, mental

health evaluation. We decline to review this issue for prejudice to petitioner, having found

no deficiencies in his trial counsels’ actions in this regard.

-17-
Couched in different terms, petitioner again argues that his waiver of his right to a jury

trial was involuntary, not due to incompetence, but because the trial court denied him due

process in failing to determine that the waiver was voluntary.

Tennessee Code Annotated section 40-30-106(h) provides:

A ground for relief is previously determined if a court of competent

jurisdiction has ruled on the merits after a full and fair hearing. A full and fair

hearing has occurred where the petitioner is afforded the opportunity to call

witnesses and otherwise present evidence, regardless of whether the petitioner

actually introduced any evidence.

See Thomas v. State, 298 S.W.3d 610, 614 (Tenn. Crim. App. 2009).

Petitioner litigated this claim in his motion for new trial, and the trial court found that

petitioner voluntarily waived his right to a trial by jury. On direct appeal, this court reviewed

petitioner’s claim, again finding petitioner’s waiver to be valid. Mario Pendergrass, 2002

WL 517133, at *17. This issue has clearly been determined by two courts of competent

jurisdiction after a full and fair hearing. As such, this issue is foreclosed as being previously

determined.

Petitioner next advances the argument that his attorneys were ineffective in denying

him the right to testify on his own behalf. Attorney One and petitioner offered conflicting

testimony on the issue. Attorney One testified that he advised petitioner of his right to testify

on his own behalf, and he and members of the defense team spent time with petitioner

developing his testimony, should he have decided to testify at trial. Attorney One stated that

petitioner made an informed decision not to testify. Petitioner stated that he persisted in his

request to his attorneys to testify at trial, and at no time did he choose to waive that right. He

testified that at trial he reminded his attorneys of his desire to testify but they would not

permit him to do so. Petitioner made an offer of proof at the evidentiary hearing regarding

what his trial testimony would have been if he had been permitted to testify at trial.

Petitioner would have asserted his innocence and would have contradicted the testimony of

some of the State’s witnesses.

The post-conviction court heard the conflicting testimony and ruled, “The petitioner

has three prior felony convictions . . . . [Attorney One], on the other hand, is a well-respected

attorney . . . . Thus, the court is inclined to resolve testimonial conflicts in favor of counsel.”

The post-conviction court made a determination of credibility, which we will not disturb on

appeal. Dellinger, 279 S.W.3d at 282. The post-conviction court resolved the conflicts in

the testimony in favor of trial counsel. “[T]his court gives great weight to the determinations

-18-
made by the trial court concerning the credibility of the witnesses; and this court will not

interfere with the trial court’s findings of fact in this regard unless the evidence contained

in the record clearly preponderates against these findings.” State v. Parker, 932 S.W.2d 935,

956 (Tenn. Crim. App. 1996). The evidence does not preponderate against the postconviction court’s findings of fact regarding the credibility of witnesses. Accordingly, we

find no deficiencies in his attorneys’ performance in this regard. We need not reach the

question of whether petitioner suffered prejudice as a result.

V. Conclusion

After thorough review of the record, we discern no deficiencies in trial counsels’

representation of petitioner. We are precluded from reviewing petitioner’s claim that his

waiver of his right to a trial by jury was involuntary, inasmuch as the issue has been

previously determined. Accordingly, we affirm the judgment of the post-conviction court.

_________________________________

ROGER A. PAGE, JUDGE

-19-