# FILED
June 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1998 SESS ION

STEPHEN MICHAEL WEST, ) ) C.C.A. No. 03C01-9708-CR-00321 Appellant, ) ) Union County V. ) ) Honorable John K. Byer s, Senior Judge, ) Sitting by Desi gnation STATE OF TENN ESSEE, ) ) (Post-Co nviction - Death Pen alty) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Roger W. Dickson John Knox Walkup Leah M. Ge rbitz Attorney General & Reporter Miller & Martin 1000 Volunteer Building Michael E. Moore 832 Georgia Avenue Solicitor General Chattanooga, TN 37402 Glenn R. Pruden John T. Milburn Rogers John P. Cauley Rogers, La ughlin, Nu nnally, Assistant Attorneys Gener al Hood & Crum 425 Fifth Avenue North 100 South Main Street Nashville, TN 37243-0493 Greeneville, TN 37743 William Paul Phillips District Attorney General Clifton H. Sexton Assistant District A

ttorney General P.O. Box 10 Huntsville, TN 37756-0010

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- The petitioner was conv icted of two counts of first deg ree premeditated murder, one co unt of aggravated rape, and two coun ts of aggravated ki dnapping. He was sentenced to death. H is convictions and sent ences were affirmed by the Tennessee Supreme Court. State v. West , 767 S.W.2d 387 (Tenn. 1989). These brutal murders were committed by the petitioner and anot her individual, Ronnie Martin, whose case was severed. At the petitioner’s trial, his defense was that he was forced by Martin to engage in the crimes and could not get aw ay from Martin although the appell ant was bigger and t aller than Martin and w as Martin’s supervis

or at a fast-food restaurant. The motiv e of the crimes was sex and money. The petitioner gav e varying accounts

of what had happened and blamed M artin fo r the crime s. The pe titioner was represe nted at t rial by two lawyers, Mr. McConnell and Mr. McAlexander.
In 1990, the petitioner filed a pos t-conviction relie

f petition alleging ineffective assistance of counsel, prosecutorial m isconduct and trial court errors, and challenging the constitutionality of the Tennessee death penalty statute. Judge John K. Byers, Seni or Judge, held hearings in September and October 1996 on t he petit ion. In Ap ril 1997, the heari ng court en tered com prehens ive findings of fact and conclusions of la w in denying rel ief requested in the petition. Following the appropr

iate appellate procedures, petitioner appealed to this Cour t. We heard oral arguments on March 24, 1998.

The issues for review can best be summarized as follows:

I. Should the petitioner’s death sentence be vacate d becaus e he was den ied eff ective-3- assistance of counsel at the se ntencing hearing? II. Should the petitioner’s case be remanded for a new sentencing heari ng because the evidence does not support the aggravating circumstance that the petitioner’s actions were committed to avoid arrest or prosecution? III. Should the petitioner’s convictions be set aside because the trial judge did not charge applicable lesser offenses? IV. Did the post-conviction relief trial court err regarding petitioner’s motion for defense services?

We affirm the judgment of the po st-conv iction court w hich den ied rel ief.

THE EVIDENTIARY HEARING
Dr. Eric Engum, a cli nical psychologist , conducted a two-hour ev aluation of the petitioner in December 1995.Dr. Engum testified that hi s tests did not indicate any sign of brain damage or any type of “cognitive compromise.” Petitioner’s intelligence was within nor mal limits. The petitioner s uffers from depression and mixed personal ity disorder, both of w hich are of a long-standing nature. Dr. Engum s tated th at the pe titioner was “somewh at unsta ble, moo dy, and changeable.” He had a poor home life and home environment.
The psychologist testified that the results of the Minnesota Multi-Phase Personality Inventor

y indicated that the petiti oner had a lot of anger resulting from earlier childhood experiences. Dr. Engum’s opinion was that the petitioner could be submissive and was functioning at an emotional level less than his chronological age. D r. Engum opined that the test r esults would have supp orted the thrust of the defense of the petitioner at the guilt phase of the trial , that the codefendant dominated and co ntrolled the petitioner “who was acting under a-4- form of duress. ” Dr. Eng um concluded that the petit ioner suffers from a condition characteriz

ed as extreme emotional distu rbance.
Dr. Engum compared his findings to that of Dr. Bursten, a psy chiatrist who had been used during the initi al trial of the petitioner. Dr. Engum described how the petitioner had told Dr. Bursten that during the inc ident he could not do anything about the crimes perpetrated upon the victi ms. Dr. Engum then stated that Dr. Bursten had been employ ed during the initial t rial to conduct a sanity and competency evaluation, w hich was different from the neurol ogical assessment that he had conducted.
On cross-examination, Dr. Engum admitted that in the twenty cases in which he had testified as an e xpert, he had testified for the de fense. Dr. Engum stated that the petitioner had told him that he ha d no recollection of any events in his life before the age of ten. The doctor admitted that the petitioner had been asked by Dr. Bursten if he had ever encountered any abuse, and the respon se had been “No.”
Debbie West, sister of the petitioner, testi fied that she was the oldest of four siblings. She stated that the petitioner’s mother had had an affair in 1961 and that the petitioner had been born in a ment al institution in 1962. Ms. West testified that in 1964 the petitio ner had “been knocked cross-eyed” by being thrown against the wall of the family home. She testified that the pe titioner also had been slapped in the head and hit w ith shoes. She said that the pet itioner had been abused throughout his chi ldhood.

Ms. West testified that her father has been an alco holic since he was ten years old and that he is a violent man. She stated that the petitioner would flinch-5- when either his mother or his father came toward him. She then stated that she had not spoken with the petitioner in ten years.
When questioned about her participation in the sentencing phase of her brother’s trial, Ms. West stated that she ha d told Mr. McConnell, trial counsel, about the abuse suffered by the petitione r. Mr. McConnell told her that this information was not relevant because the petitioner’s parents were paying his fee. Therefore, they would not admit to anything. She stated that she would have testified concerning the abuse if she had been asked about it when she took the witness stand.
On cross-examination, M s. West admitted that when she was ques tioned during the sentencing phas e of the trial as to whether there was ever any problem between the petitioner and the rest of the family as far as discipline, she had replied, “No.” She admitted that at the sentencing hear ing she had testified that the petitioner had liv ed with her and that he had nev er been involved in any trouble but tha t in actuality, the petitioner had experienced a pro blem with drugs and alcohol. She stated that she h ad not informed the court of his probl ems or information concerning abuse at the sentencing phase because s he was not asked specific questions. Also, her mother was on the verge of a heart attack a t the initial trial, and she did not think it would bene fit the petiti oner to tell thin gs that would harm her mother.
The next witness, Mr. McAlexander, co-counsel in the petitioner’s trial, was called, out of order, to testify for the state. Mr. McAlexander testified that he had been licensed to practice law in 1986 and that he had been contacted by Mr. McConnell, chief counsel in the petitioner’s trial, to assist him in the case. He initially revi ewed files and conducted inv estigations. He had done a t remendous amount of research in preparing motions filed by the petitio ner. He had met with-6- the petitioner’s family on numerous occasions during the pendency of the trial and he had participated in ev erything that occurr

ed in the case after he was appointed co-counsel. He stated that he had hand led the motion for new trial, the appeal, an d the suppres sion motion i n the case by himself. Hi s total time spent was 547.4 hours.

Mr. McAlexander tes

tified that he did not remember Ms.West, the petitioner’s sister, e

ver alleging that

the petitioner had been abused duri ng childhood. He also could not recall that the petitioner ever alleged any t

ype of abuse. He stated that he had not r eceived as much cooperation from the petitioner’s family as he would have liked.
On cross-examination, M r. McAlexander testified that he had no experience as a trial lawyer in defending c apital cases. He admitted that he knew Mr. McConnell , like himself, had never ha d any experience try

ing a capital case. He recalled that M r. McConnell had exper ienced difficulty with his fee because he had been retained and that he had made the statement that Mr. McAlexander, a court-

appointed attorney, was getting paid more than he w as getting paid as a retained lawyer.

Mr. McAlexander admit ted that Mr. McConnell ha d consulted Dr. Ben Bursten regarding a s

anity and competency ev aluation. As a result of the evaluation, the petitioner had attempted to introduce a dure ss defense th rough expert witness testimony. The trial court r ejected the request for ex pert services because Mr. McConnell had earlier objected to a cour t-ordered evaluation of the petitioner at Middle Tennessee Mental Health Institute. Mr. McAlexander also testified that a suppression hear ing concerning incons istent statements by the petitioner had been conducted and that he had requested that the heari ngs be-7- transcribed. Howev

er, at the time of the trial, the hearings had not been transcribed.
On redirect examination, Mr. McAlexander recalled that the issue concerning hiring a defense expert on the duress defense was raised on appe al, and the Supreme Court ruled that this testimony would not be admissible anyway. The Supreme Cou rt also compared the transcr ipt of the suppression hearing with that of the tr ial transcript and concl uded that there were no overlooked opportunities for impeachment.
Mr. McConnell, chief coun sel for the petitioner, w as called by the petitioner to testify. He had been paid $10,000 by the petition er’s family for his representation. In addition, several thousand dollars were paid by the family to investigators and Dr. Bursten. He admitted that when he learned that his co-counsel was paid $20,0 00, he had not been happy. He als o admitted that at the time of the trial, he had nev er handled a capital case inv olving the death penalty. He admitted that he h ad requested additional funds from th e petitioner on numerous occasions but that he ha d not been paid these funds.

Mr. McConnell claimed that he had made a complete investi gation into the petitioner’s life. Records were introduced into evidence to show that Mr. McConnell had waited to subpoena the school records of the petitioner until the second day of the trial. C ounsel admitted having no r ecollection of obtaining any employment records, birth records, medical recor ds, or military rec

ords of the petitioner. He further admitt ed that he “wouldn’t hav e wasted any time” on conducting interview

s of siblings for the purpose of exploring mitigati on themes because the petitioner had never raised those issues.-8- Mr. McConnell recal led that Dr. Bursten had been empl oyed to conduct a sanity and competency ev aluation. Mr. McConnel l admitted that he had filed a motion in opposition to a court-ordered competency evaluation. Af ter the state’s motion was denied, Mr. M cAlexander filed a motion to ob tain expert servic

es for a “duress defense.” This motion w as denied.

Mr. McConnell admitted that he had been allowed to withdraw from this case while the motion for a ne w trial was pendi ng. His co-counsel w as going to handle the appeal, and Mr. McConnell’s practice had suff ered economically as a result of this case. He further testified that his theory at the guilt phase of the trial had been that although the petitioner was at the scene of th e murders, his codefendant had actually committed the murders. At the penalty phase, counsel had attempted to show that the petitioner was a veteran , that it would be an extreme hardship on his w ife and new baby without him, and that the petitioner was a young man wi

th no prior record. Mr. McConnell stated that he had attempt ed to app eal to the common s ense, de cency, an d sympath y of the ju ry.
On cross-examination, personal diaries Mr. McConnell kept during his representation of the petitioner were entered into evidence. Mr. McConnell recalled interviewing family members of the petitioner, especially the petitioner’s mother and one

of his siste rs, Deborah Adams. He te

stified that at no time during his interviews with Ms. Adams did she make him aware of any abuse suffered by the petitioner in his early years. He testified that the fam ily had told him that the petit ioner had come fro m a happy f amily.

Mr. McConnell testified that he had employed two pr ivate investigat

ors to check out whether the petitioner’s codefendant had been invol ved in a cult. One of the investigators had al so attempted to measure the prejudic e in the community against the tw o alleged perpetrators of the crime.-9- On redirect exami nation, Mr. McCon nell was questione d concerning a press interview he had given about the case i n his initial represent ation during which he had mentioned that a sat anic cult might be inv

olved. He responded that he had intended to show that it was the petitioner’ s codefendant who might have had an involvement with a cult.
Mr. Jerry Summers, a seasoned Tennessee attorney w ho has participated in many criminal tri als, capital and noncapital,testified that he had been asked by post-co nviction c ounsel to review the re cord in th is case. Up on his revie w, Mr. Summers’ opinion w as that counsel’s performance i n this case fell below the range of compete nce requir ed of at torneys in death pe nalty case s. Specif ically, he stated that Ms. West’s testimony that the petitioner was born i n a mental institut ion would h ave been a red flag. He stated that he wou ld certai nly have talked to others besides family members in determining a def endant’s background. Family member s might not always

be truthful because of embarrassment or shame.
Mr. Summers’ opinion w as that the standards for defending a death penalty case would r

equire counsel to obtain a psychological ev aluation other than a sanity and competency evaluation, especially considering the facts of th is case. He opined that Dr. Eng um’s report would hav e been extremely val uable at the sentencing phase of the trial because it indicated that the petitioner suffered from specific emotional problems. The rep ort would have supported certain mitigating factors such as: that the murders wer e committed while the defendant was under the influence of extreme mental or emotion al disturbance, that his participation in the murder s was relativel

y minor, and that the defendant acted under extreme duress and under the substantial domina tion of another.-10- Mr. Summers testified that the petitioner’s failure to remember anything concerni ng events i n his life before t he age of twelve or th irteen sh ould have been an indicator that he was attempting to block out cer tain events from that time period. Mr. Summers w ould not have waived

jury instructions

on lesser included offenses, as counsel did, becau se jurors might want to help someone if they think that person was less culpable than someone else. In conclusion, Mr. Summers testified that it was his opinion that the attorneys’ perfo rmance fell below the range of competence required of capital case attorne ys in that they did not conduct a proper investigation, did not conduct thorough interviews, and did not get a psychologi cal evaluation.
On cross-examination, M r. Summers admitted that a law yer could make a strategic decision not to have a psychologi st examine the defendant if he had previously been ex

amined by a psychiatri st. However, he furth er opined that the red flags in this case w ould have led counsel to furthe r investigation r ather than accepting the petitioner’ s and the family’s wor d.
Patricia Depew, another sister of the petitioner, tes tified that she had grown up in the same house with the petitioner as a child. She recalled phy sical and verbal abuse of herself and the petitioner. She testified that the petitioner had reacted to the abuse by becomi ng passive. When questioned about whether she had ever s poken with petitioner’s trial counsel, she stated that she had just spoken with her mother about the case. She recall ed that she had attended some of the meetings between her mother and counsel but that counsel had never asked her any questions. When asked why she had not told the attorneys about the abuse, s he stated that nobody had asked and she had not thought that it was i mportant. On cross-exami nation, Ms. Depew stated that she had been in New Mex ico the five years before the petitioner’s arrest.-11- Ruby West, the petitioner’s aunt, testi fied that she had lived upstai rs from the petitioner’s apartment when he was a child. She said that petitioner’s parents we re abusive . The petitio ner’s mother would sw

ear at him, be

at him, and would put him in a cold room with a mattress w et with urine. She rec

alled one occasion when the petitioner’s mother got angry at him and threw him against the wall by his feet. She recalled several incidents of abuse. She also stated that the petitioner’s father had participated in some of the ab use. She then stated t hat she had nev er been conta

cted by peti

tioner’s c

ounsel at the

time of his trial.
On cross-examination, M s. West testified that she had been contacted by her husband, brother of the petitio ner’s father, and asked if she w ould testify as to the abuse the petitioner had ex perienced as a child. She s tated that at that time she was livi ng in Ohio but had since mov ed back to Tennessee. The petitioner’s brother had appr oached her and asked if she woul d be willing to testify as to the abuse. She tol d him that she would rather not get involved; b ut when Patty, the petitio ner’s sister, came to see her, she told her what s he remembered.
Ms. West testified that the petitioner had re acted to the abuse by becoming very timi d and frightened when he saw his parents coming. She stated that he always ap peared undernourished.

When she was confronted with the statement that the petitioner had made at trial that he had a close relationship with his family and that they “all still love[d] each other a lot,” she stated that maybe things had changed. She stated that she had been away and that she had only been around the f amily closely when the petitioner was small.-12- The petitioner’s next w itness was Paul Morr

ow, an attorney who

has been actively invol

ved in capital case li

tigation since 1989 wh en he was employed wi th the Capital Case Resource Center of Tennessee. Mr. Morrow testified that th ere are standards by whi ch capital cases are gov erned and that they are contai ned in the United States Supreme Cou rt opinions. He elaborated concerning the differences in capital case repr esentation and explained that s pecialized training is definitely requir

ed before accepting the represe ntation of defendants charged with capital offenses. One of the primary diffe rences in death penalty litigation is that an individualiz

ed sentencing hearing must be held which requir

es a second trial. An attorney must present to a jury the bac kground of the defendant, the defendant’s character, and anything that might permit the jury to render a sentence less than death. Mr. Morrow stated that the investigation should entail searching and pulling birth records, school records, medical records, military records, and institutional records and that from these record s the attorney should be able to “ferret out” someone w ho could talk about the devel opment of the defendant. Additionally, he st ated that extensive inte rviews needed to be conducted, starting with the defendant. He added that if abuse is a factor, however, usually

the defendant is the worst per son to talk to because he or sh e is usually embarrasse

d or does not understand its s ignificance.
When questioned as to the experience of counsel in this particular ca

se, Mr. Morrow testified that Mr. McAlexander was a new lawyer and that Mr. McConnell had come from a state that did not have the de ath penalty, so counsel should have at leas t contacted other attorneys who had represented persons charged with capital offenses. They should have consulted m aterials that were readily available, such as the C apital Death Penalty Manua l created by the Tennessee Association of Crimi nal Defense Lawyers. M r. Morrow then stated that counsel’s inv estigation in this cas

e did not fall within the r ange of competence demanded of atto rneys in death penalty cases.-13- Mr. Morrow also stated that counsel was d eficient in no t requesting a psychological ev

aluation, at least for mitig ation purposes. He emphasiz ed the importance of Dr. Engum’s psy chological report w

hich would have led hi m to investigate the development of childhood abuse. He diff ered in Mr. Summers’ conclusion that counsel was most deficient in the sentencing pha se because it was his opinion that the psychological evaluation would have been extremely important in the guilt phas e of the trial as to intent and di minished capacity. In conclusion, he testified that th e prejudice that was show n in this case was that the jury did not hear the “psychological or lay witnesses that

would have made somewhat comprehensible his actions on that day [day of the murders].” On cross-examination, w

hen questioned as to the heinous nature of the crimes and as to whether any miti gation would have made a difference, Mr. Morrow stated that mitigation absolutely demands an explanation because a c ompetent attorney must give t he jury at least som ething.
The petitioner concluded his pr oof, and then Dr. Ben Bursten testi fied for the state. He was allow ed to testify as an expert witness. He had ex

amined the petitioner and conducted a forensic evaluation requested by counsel. Dr. Bursten stated that he had determine d that the petitioner was competent to stand trial and that he could n ot support an insanity defense.He testified that during the evaluation the petitioner had definitely stated that there had been no childhood abuse in his family life. He admitted that he had not q uestioned the immediate family about abuse because the y had told him that he was the most lovable of all the children. He stated that he had evaluated Dr. Engum’s report and that he disagreed that the ev aluations conducted indicated an y type of abuse. He also testified that he disagreed with Dr. Engum that the effect of the abuse caused extreme emotional di sturbance. In conclusion, D r. Bursten stated that within a reasonable degree of medical certainty, he would not agree with Dr. Engum’s assessment.-14- On cross-examination, D r. Bursten testified that he w as being paid by the state for his testimony as a n expert witness. He admitted that he had had no contact with the petitioner since 1986. He admitted that he had contacted Mr. McConnell to obtain his permission to speak with the district attorney general.

I.
The petitioner cites numerous c ases for the contention that one of counsel’s primary duti es is to investigat e and pursue the angles of defense, whether representing the client at trial, at s entencing, or on appeal. State v. Melson , 772 S.W.2d 417, 421 (Tenn. 1989); Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975); Cooper v. State , 847 S.W.2d 521, 527 (Tenn. Crim. App. 1992). The petitioner asserts that thi s investigation is especially essential

at the sentencing phase of a capital tr ial. Cooper , 847 S.W.2d at 531. However, the petitioner also acknowledges that “[a] fair assessment of atto rney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challeng ed conduct, and to evaluate the conduct from counsel’s perspective at the time.” Stricklan d v. Washington , 466 U.S. 668, 689 (1984).
The petitioner contends that defense couns el’s failure to investi gate the petitioner’s background fell far outside the range of com petent assistance because the only mitigati on proof was the testimony o f six character witnesses that the petitioner was a well-behaved and gene rally liked person.The petitioner contends that his attorneys were deficient in failing to conduct any investi gation into his background, educational and emotional cond ition, and family relationships in order to present mitigation. The pet itioner emphasizes that counsel did not conduct a recor ds search.-15- The petitioner faults counsel for c onducting interview

s of only his parents and one sister. None wer e questioned concerning p ossible abuse. The petitioner cites specific instances of abuse as reflected in the post-conviction hearing transcript. The petitioner also faults counsel for failing to have a comprehensive psycholo gical examination. H e argues that the choice not to put on evidence at the sentencing phase of the hearing cannot be defended as trial strategy because the r

ecord indicates that counsel completely failed to conduct a thorough investigation.
The petitioner cites Goad v. State , 938 S.W.2d 363 (Tenn. 1996) and Adkins v. State , 911 S.W.2d 334 (Tenn. Crim. App. 1994) as two Tennessee cases which demanded resentenc ing due to counsel’s failur e to conduct an adequate investigati on into the petitioner’s li fe. The petitioner then recounted the testimo ny of Mr. Su mmers an d Mr. Morrow.

The state cites Lockhart v. Fretwell , 506 U.S. 364, 369-70 (1993) for the following proposition :

[A]n analys is focusing

solely on

mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is de fective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error may g rant the defendant a windfall t o which the

law does no

t entitle hi m.
The state argues that the petiti oner has failed to meet his burden of pr oof as to counsel’s ineffectivenes s at the sentencing hearing . The state contends that counsel obtained the petiti oner’s military records and made a deliberate decision not to introduce suc h evidence because it contai ned information showing that the petiti oner had a background of drug a nd alcohol abuse. The state argues that counsel’s failure to obtain school records was not per se-16- ineffective because prejudice w as not shown by the petitioner. The state argues that cou nsel’s fa ilure to o btain me dical reco rds was not per se ine ffecti ve because the petitioner did not pr oduce such records at the post -conviction hearing which could have been introduced at trial.
Regarding the lack of a c omprehensive psycholog ical evaluation, the sta te argues that the testimony of Dr. Bursten was of crucial importance in this cas e. Dr. Bursten disagreed with expert witness Dr. Engum in that Dr. Bursten would not agree that the petitioner was an abused child. When asked to assume tha t the petitioner had been abused, Dr. Bursten disagreed with Dr. Engum’s conclusion that the abuse w ould cause extreme emotional di sturbance. The state argues that counsel w as not ineffective for failing t o uncover nonpsychological ev

idence of abuse because counsel had nev er been made aware of s uch abus e during in terviews with the fam ily.
We agree with the post-convicti on court’s assessment that “ there existed conflicting testimony r

egarding mitigation evidence that trial couns el failed to present.” We also agree with the c ourt that Dr. Engum’s tes timony reflected that the petitioner’s evaluation showed no signs of tr auma or organic brain damag e. We agree with the post-convicti on court that in light of thi s conflicting evidence , the peti tioner di d not mee t his burd en with res pect to th e allegat ion of in effect ive counsel at the sentencing phase. Regarding all of the ancillary and subissues, after a thorough review, we conclude that the petitioner has failed to meet h is burden of proof as to these allegati ons. We agree with the post-convi ction hearing court that the petitioner has failed to show how he was prejudiced by

any acts or omissions of counsel.

II.-17- The petitioner asserts that dur ing the sentencing phase of hi s trial, the state failed to “submit even a single piece of evidenc e from which any rational trier of fact could infer that the petitioner acted in order to avoid prosecution.” The petitioner asserts that the post-conviction trial court failed to ad dress this issue in its Memorandum of Law . Petitioner argues that this issue is not w

aived because “[a]n error wh ich has affected the substantial ri ghts of an accused may be noticed at any time, ev en though not raised in the moti on for a new trial or assigned as error on appeal, in the discretion of the appellate cou rt where necessary to do substantial justice.” Tenn. R. Crim. P. 52(b).
The state asserts that this claim has been waived by the petitioner’s failure to present it at tri al and during the direct appeal. See Tenn. Code Ann. § 40-30-112(b) (repealed 1995) . The state argues that the peti tioner’s attempt to introduce the plain error doctrine into a post-conviction proceeding such as this has been specifically rej ected by this Court. See State v. Sandy Eugene Womack , No. 01C01-9003-CC-00077 ( Tenn. Crim. App. at Nashvi lle, July 26, 1990).
The state also argues that the evidence adduced at the trial clearly supported this aggravating factor because it was established that the petitioner’s codefendant was known to one of the victims. The petitione r and his codefendant were in the vic tim’s home for a substantial per iod of time, the codefendant was wearing a restaurant uniform that wou ld identify him, and a concerted effort had been made by the peti tioner and the codefendant to wipe fingerprints from the weapons that had been handled.
We agree with the state’s position on waiver. The clai ms advanced by the petitioner could have been r aised on direct appeal but w ere not. The petitioner-18- has fostered no basis for overcoming the waiver provision found in the applicable post-conviction statute . Therefore, this issue is w ithout merit.

III.
The petitioner argues that bec ause the issues in this cas e revolved around his level of involvement in the murders, a secon d degree murder c harge was indispensable. He asserts that the trial court was required by law to instruct the jury on the lesser included offenses of first degree murder, regardless of whether he was req uested to do so or not. See State v. Ruane , 912 S.W.2d 766, 782 (Tenn. Crim. App. 1995). The petitioner also asserts that trial counsel was ineffective for verbally waiving an instruction for second degree murder, especially since the record did not reflect that the petitioner himself voluntarily and knowingly w

aived the right to suc

h an instruction. The petitio ner argues that this issue should have bee n raised at the motion for new trial or on appeal. Again, the petitioner cites Rule 52(b) of the Tennessee Rul es of Criminal Procedure i n support of hi s nonwaiv er claim.
The state argues that the decis ion to forgo instruction on lesser included offenses was a strategic dec ision of counsel and did not constitute ineffectiveness. The state cites the trial record w

hereby counsel informed the court that it was the defendant’ s position that he did not w ish the court to consider any lesser i ncluded offenses in his charge. At the post-conviction hearing, the petitioner fail ed to examine his attorney s concerning their deci sion to forgo instruction on les ser included offenses. The state asser ts that the petitioner’s decision to relinquish further inst ruction on lesser incl uded offenses was made in light of the ev idence at trial and the defense theor y that the petitioner did not commit the murders.-19- The allegation regarding lesser included offenses is presented f or the first time at the post-convicti on stage. A complaint about fail ure to charge a lesser included offense is not a cognizable claim on post-conviction review. Only constitutiona l errors can be groun ds for relief, and normally the failure to char ge a certain offense does not violat e the constitution. Moreov er, the petitioner has failed to rebut the presumption of w aiver, and this issue is waived. See Tenn. Code Ann. § 40-30-112 (repealed 1995). Based upon this over all record and the petitioner’s theory of defense a t trial, we also ar

e of the opinion that, substantively, the i ssue is without merit.

IV.
The petitioner contends that the pos t-conviction trial

court erred in denying funds for inve stigative services. He f aults the post- conviction court f or granting a hearing on the motion for exper t services and orderi ng the petitioner to prov ide the state a copy of his ex partemotion. In addition, the petitioner faults the cou rt for allowing the state to participate in the hearing. The petitioner cites Owens v. State , 908 S.W.2d 923, 924 (Tenn. 1995) for the proposition tha t post-conviction petitioners are entitled t o an ex partehearing on a motion for defense ser vices as long as procedural r equirements are met.

The state contends that the trial court did not err in deny ing the investigative s

ervices of Mr. Ronald Lax and Ms. Gloria Shettles at a cost not to exceed $27,500 and neuropsych ological servic es of Dr. Eric Engum in an amount not to exceed $5,000. The state asserts that the trial c ourt did, in fact, grant an ex partemotion in part by orderi ng payment to Dr. Engum i n the amount of $1,200. When the petitioner’s post-convic tion counsel filed a motion to rehear, the trial court held a hearing at whic h time it concluded that the amount of $1,200 payment to Dr. Engum (a lthough the amount was later increased) was-20- sufficient and otherwise denied the petition to rehear. The peti tioner then filed an application for permission to appeal pursuant to Rule 10 of the Tennes see Rules of Appellate Procedure c hallenging the trial

court’s refusal to grant funds for investigative services. The state conte nds that the petitioner has w aived any other claims concerning an ex partehearing. The Rule 10 appli cation was denied by this Court.

The state cites Owensfor the proposition that its holding should not be interpreted as a “blank check” requiring c ourts to hold ex parte hearings and to authorize funds in every case. The state contends that the af fidavits of Ms. Shettle s and Mr. La x failed t o demon strate th at profe ssional in vestigative services were r

equired in this case.

In Owens , the Supreme Court examined i ts cases in the direct appeal context and found the principle s regarding inve

stigative funds to be the s ame. The Court found that in State v. Evans , 838 S.W.2d 185, 192 (Tenn. 1992), a defendant has to show that a substantial need exists req uiring the assistance o f state-paid support services and that a defendant’s def ense cannot be fully developed without such a ssistance. The petitioner’s motion and affidavits failed to explain why the inves tigative wor k could no t have bee n done by t he attor neys and must have been done by th e investiga tors. The petition er has not shown why these professional investigative s ervices are requi red. It should be pointed out that once an individual has gone beyond the trial and direct appeal level in a case, the state does not have t o write a blank check for investigative services. Just because a particular service might be of some benefit doe s not mean that it is constitutionally required. We agree that Judge By ers was correct i n his refusal to grant the additional ex pert services in thi s post-conviction cas e. Furthermore, we find no prejudice reg arding the allegations of the state’s participation in the ex parte hearing. The petitioner s imply has not carried h is burden to show how the-21- post-conviction heari ng judge committed reve rsible error. This i ssue is without merit.

CONCLUSION
After reviewing the record, briefs, and argument s, this Court concludes that the decision by the pos t-conviction judge denying post-convi ction relief should be, and is, affirmed. The petiti oner’s death sentence wil l be carried out unless stayed by competent authority. The petitioner ’s execution date is set for October 1, 1998.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

______________________________ JOHN H. PEAY, Judge

______________________________ CORNELIA A. CLARK , Special Judge