# FILED
December 15, 1997 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT NA SHVILLE (HEARD AT COLUMBIA)

FOR PUBLICATION STEVE HENLEY, ) ) Filed: December 15, 1997 Appellee, ) ) v. ) JACKSON CRIMINAL ) STATE OF TENNESSEE, ) Hon. J.O. BOND, Ju dge ) Appellant. ) ) ) No. 01S01-9703-CC-00056 For the Appellant : For the Appellee : John Knox Walkup Jack E. Seaman Attorney General & Repor ter Lyell, Seaman & Shelton

Nashville, Tennessee Michael E. Moore Solicitor General Paul S. Davidson Stokes & Bartholomew John H. Baker, III Assistant Attorney Gener al Nashville, Tennessee Tom P. Thompson District Attorney General John Wooten Assistant District A

ttorney General Hartsville, Tennessee 

## O P I N I O N

COURT OF CRIMINAL APPE ALS REVERSED; TRIAL COURT JUDGMENT REINSTATED; PETITION DENIED. DROWOTA, J.1 Oral argume nts were heard in this case on O ctober 8, 1997 in Columb ia, Maury County, as part of this C ourt’s S.C .A.L.E.S. ( S upreme C ourt A dvancing L ega l E ducation for S tudents ) project. -2- In this post convictio n proceeding, the trial c ourt denied relief on all grounds alleged, and specifically found that the petitioner, Steve Henley, had been afforded his constitutional right to effective assistance of counsel at the sentencing phase of his capital

trial.The Cour

t of Cri minal Ap peals fo und t hat the evidence preponderated against the trial cour t’s denial of relief with

respect tothe sentencing phase, and concluded that Henley had bee n denied his right to effective assistance of counse l be cause trial counsel had failed to adequately investigate and prepare witnesses

to testify on Henley’ s behalf and h ad failed to adequately inv estigate Henley’s mental condition and request that he undergo a mental eval uation. Accordin gly, the Court of Criminal Appeals reversed Henley’s sentence of death and ordered a new sentencing heari ng. Thereafter, we grant ed the State permission to appeal to determine whether the intermediate court erred in conclu ding that the evidence preponderatesagainst the trial court’s finding that Henley was afforded his right to effe ctive assis tance of counsel at sentencing. After carefully revi ewing the record, we have determined that the evidence supports t he trial court’s fin ding. Accordinglythe judgment of the Court of Cri minal Appeals ordering a new sentencing hearing is reversed, and the tr ial court’ s decis ion denying the petition for post conviction relief on all

grounds alleged is r

einstated. 1

BACKGROUND In 1986, the petitioner was conv icted ofaggravated arson and two counts of first degree premeditatedmurder for the killings of Fred and Edna Stafford, an elderly couple who were close neighbo rs to Henley’s gr andmother. According to the-3-

testimony

of his co-defendant, Terry Flatt, the petiti oner ordered both victi ms inside their home, shot them multiple ti mes, and set their house on fire. T h e pr o o f introduced at trial to establish the defendant’s guilt was summarized by this Court on direct appeal as follows:

[T]he evidence showed that Fre d and Edna Stafford lived on Pine Lick Creek

Road in Ja ckson Cou nty, just a short distance from the farm, owned by Hen ley’s fam ily, where his grandmother lived. On the day of the Staffords’ deat h Henley had visited his grandmother and obtai ned some mechanical parts for some w ork he was doing. F latt was with him. Earlier

in the day they had been dr iving about, tending to business affairs of Henley’s. During that tim e theyhad consumed some beer and als

o had taken so me drugs, referred to in the record as Dilaudids. According to Flatt, a s they passed the Staffords’ residence Henley commented, ‘there was some people that liv ed on that road that owed his grandmother

or grandfather some

money, and they done him wrong, his grandparents wrong years before, and he was going to stop and see aboutcollecting some money off them.’ Henley let Flatt out

of the truck just before he reached hi s grandmother’s hou se. W hen he returned f ive or t en minutes later he had a .22 rifle with him. They stopped fifty or seventy-fiv e yards up the road wher e Henley loaded some more shells into the rifle.He also filled a plastic jug with gasoli ne from a five-galloncan he had in the back of the truck. They proceeded on toward the Stafford residence. W hen they reached there Mr.and Mrs. Stafford were standing on the left-hand side of the road looking at a small bridge where

some construction work had recently been done, Henley stopped the truck, jumped out a nd t old them, ‘I want your money, if you don ’t give it to me this man in the truck here, he’s going to kill me.’ He then directed them to go to the house. Mr. Stafford said, ‘Steve, if you want mone yor something, I got $80, maybe $100, you can have it.’ He forced them on to the house at gunpoint and told Flatt to bring the .22 rifle as he followed behind them. W hen they got within 20 or 30 feet of th e house he told Flatt to give him the rifle and go back to the truck and get the plastic jug of gasoline. Fl att did as directed. As he reached the porch he saw Henley begin to

shoot. He first shot Mr. Stafford then turned and shot Mrs. Stafford a time or two. Whi le she was laying on the

floor moaning and groaning he threw the rifle to Fla tt, took out his pistol and shot her ag ain with the pistol. He told Flatt to pouro ut some of the gas. Flat endeav ored to do as he was told and poured out a small amount. When he could not finish Henley took the container

of gas from him and finished pouring it out. He then directed Flatt to light it. When Flattsaid he could not he struck the match and as the flames went up they ran to the truck. The house burned to the gr ound. The bodies of the Staffords were found in the ashes. All that remained of Mr. Stafford’s body was-4- part of the right leg and the tr unk area. The body of Mrs. Stafford w as si milarlyburned. It was determined that Mr. Stafford died from a gunshotwound to the chest with the bullet p assing through his hear t. Mrs. Stafford’s death was caused by burns and inhala tio n of noxious gases from the f ire. It was the opini on of the medical examiner that Mrs. Stafford lived a minute or longer after the fire beg an. State v. Henley , 774 S.W.2d 908, 91 2 (Tenn. 1989).

At trial Henley maintai ned his innocence an d attempted to discredit the prosecution’s evidence, particularl y the testimony of co-defendant F latt which was crucial to the State’s case. The defense show ed that by testifying, Flatt had gained the benefit of a plea bargain agreement, pursuant to whi ch, Flatt had been allowed to plead guilty to two counts of second degree murder, two counts of armed robbery and o ne count of aggravated arson.Flatt was sentenced as a Range I offender to twenty-fi ve years for

each of the murders, ten years for each of the robberies, and ten years for the arson, all to run con currentl y, for an e ffecti ve senten ce of twen ty-five years.
Testifying in his own defense, Henley adamantly denied all knowledge of and involvement

in the murders and arson. Henley acknow ledged that he had spent the dayin the company of Flatt, and he admitted that he had drank some bee r . However, Henley flatly denied that he wasintoxicated or under the influence of drugs. Henley said he did not li ke to d rink beer and had never abus ed drugs. Henley testified that it was Flatt w ho was intoxicated and under the influence of the drug referred to in the reco rd as D ilaudid. Henley said that he dropped Flatt off befo re arrivingat his grandmother’s house because of Flatt ’s into xicate d condition. Fl att left the truck with Hen ley’s .2 2 gauge rifle planning to hunt rabbits. Henley said he-5-

proceed ed to his grandmother’s house and remained there for abo ut forty-fiv e minutes to an hou r. Henley pi cked Flat t up when h e left, b ut had no knowl edge o f Flatt’s activities

during the interveni ng time frame. Henley cl aimed that he did not see the fire at th e Staffords’ ho me and was not aware of t heir deat hs until t he next da y. On cro ss-examin ation, He nley admi tted tha t he previo usly had pl eaded gu ilty t o transportingstolen goods in interst ate commerce. In addition, Henley admitted that he owed a substantial farming debt near the t ime of t he killings and had filed for bankruptcy.

The defense called other witnesse s dur ing the guilt phase to c orroborate Henley’s testim ony a bout his activities on the day of the murders and to pro vide backg r ound information about Henley’s life. Henley’s grandmother testified that around the time of the murders, Henley arrived at her home alone and stayed there forforty to forty-five mi nutes. On cross-examination, she admitted that she had seen Henley with the .22 rifle on S aturday before the Staffords wer e murdered on Wed nesday.

A f ter the jury convicted

Henley of two counts of pr emeditated murder and arson, the case proceeded to sentencing. The Stat e relied upon the proof it had presented at the guilt phase.

The defense offered furt he r proof, first calling H enley’s mother, who, i n the presence of the jury said, “I w ant to talk to you Mr. Reneau.” Defense counsel, J.H. Reneau, III, requested and was granted a short recess. He exited the courtroom w ith Dorothy Henley. When the sentencing hearing resumed, she did not take the sta nd,-6-

and the jury was not g iven an e xpl anation for her failure to testify . Instead, the defense recalled Bertha Henley, the

petitioner’s seventy

-five-year-old g randmother who testified that Henley, al ong with his parents,had lived in her househol d from the time he was born until he w as two years old. In a ddition, Henley had spent every weekend and summer vacat ion thereaft er in her home un til he complete d high school. She said that Henley had a very close r

elationship with his grandfather, and that, from a very young age, Henley had helped his grandfather with farm work. She described Henle y as a “good child” who “minded” her well and who “ always loved” her. Henley married

when he was eighteen- years-old, and had two childre n, Gregg and Leanne. Even after his marriage, however, Henley’s close relationship with his grandparents

continued. Though he and his family moved fro m Tennessee to Maryland, Henley returned to Tennessee when his grandfather was di agnosed with
cancer in May of 1976 a nd lived w ith his family in a trailer across from his grandparents’ home so that he could help his g randfather with the farm work. After his grandfather died of

cancer in July of 1976, Henley began working on the family farm full time and continued in that oc cupation from 1977 to 1983. During that time, Henley visited his grandmothe r alm ost everyday, and c ontinued to check on her regularly thereafter. She could not dri ve because she had suffered a heart attack, so Henley

would drive her to the doctor an d into town once a week to pay bil ls and buy grocer ies. Hen ley’s grandmother described him as a “tender hearte d” person who would cry when

his feelings were hur

t. She said hehad always been kind and good to her, ever willing to provide her with needed assistance. She told the jury that she loved Henley, the el dest of her four grandchildren,and did not want to see anything happen to him . The S tate did not cross examine Bertha Henley at the sentencing hea ring.-7- Henley also testified about his relations hip with his grandpar ents and how

he had played and w

orked on the fa rm f rom a very young ag e. When asked why he stayed with his grandparents, rather than his parents, on the weekends and during his summer vacations, Hen ley replied, “I’d just love them more than anything in the world. There’s no w

ay to expl ain my

grandaddy, I don’t guess. He was just the best person in the world.” Henley recounted how he hadgiven up his job in Maryland as
a certified marine mechanic to return to Tennessee and assist his grandfather when he was diagno sed with ca ncer. Hen ley said he worked fu ll time on the fam ily far m from 1977 to 1983, and was success ful for a time. His farming difficul ties began with
a drought in 1980 or

1981. To compensate for losses during the drou ght, he planted nearlyseven hundre d a cres of wheat. Because of sev ere flooding, Henley w as unable to harvest the wheat and lost his entire crop and ultimately was forced to file forbankruptcy protection. When trial counsel gave Henley the opportunity to

make
a final comment to the jury, Henley told the jurors, “I thi nk each and everyone of you has made a mistake, and it’s a mist ake you all will have t

o live with. And one day and time when we’re all, wherever we go, we’llall have to face that.” The State did not cross examine Hen ley at the senten cing hearing.

After hearing the proo f, the jury sentenced Henle y to death for both murders, finding that each murder was “especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.” Tenn. Code Ann. § 39-2-203(I)(5) (1982). This Court affirmed the convictions and sentenc es on direct appeal. State v. Henley, 774 S.W.2d 908 (Tenn . 1989).
Thereafter, Henley instituted thi s action seekingpost conviction reli ef. Among-8-

other things, Henley all eged that he was denied his constitu tion al right to effect ive assistance of counsel at the sentencing phas e of his capital trial. Henley alleged that tr ial counsel ’s failu re to investigate and p repare f amily m embers t

o testif yon hi s behalf deprived the juryof hearing proof of his good char acter and non-violent nature. In addi tion, Hen ley alleged that trial counsel’s failure to completely investigate his mental condition and request a mental evaluation constituted ineffective assistance of counsel. At the time of the evidentiary heari ng on the petition, both the or iginal trial judge, Robert H. B radshaw, a nd the so le trial de fense a ttorney, J.H. Reneau, III, were deceased.

In support of his first claim, Henley offered the testi mony of h is mothe r, his two sisters, his two children , and his second wife. Dorothy Henley, the petitioner’s mother, said that trial counsel had not c on tacted her prior to trial and that the only time he had spoken to her about testifying was during the recess she requested after he had called her to

the witness stand at the s entencing hearing in the presence of the jury. Mrs. Henl ey admitted that she told trial counsel dur ing the recess that she did not want to testify, but said she had refused to testify o nly because she had not understood the purpose of her testimony nor what she would have been expected to say on the witn ess stand . Had trial counsel ex plained to her the purpose of her testimony

before the sentencing hearing , Mrs. Henl ey clai med she wo uld have testified on behalf of her son.

Had she been properly prepar ed, Mrs. Henley said

that she would have g iven testimony

about her son’s life, her lov e for him, and her

belief that he would not h ave committed the crimes “if he was at his rig ht mind. ” She would have told the jury that-9-

Henley was a good son who had a close relationship with his grandparents and who had suffered financial losses because of the fail ure of his farming operat ion. O n cross-examination, Mrs. Henley acknow ledged that

she had lived in Davi dson county at the time

of the murders and that she had littl e contact with her son dur ing the year preceding the homicides. She conceded that s he had no more information about Henley’s background tha n what his grandmother ha d testified about at the sentencing hearing.

The petitioner’s children,Greg and Leanne Henley, testified that they were not told about the petitioner’s trial until it had concluded. These w itnesses said that, had they been conta ct ed by trial counsel, th ey would have gi ven evidence that Henley
was a good fa ther. Gre g was twelve or thirteen years old at the time of the trial and Leanne was ten or eleven y ears old. At the time of Henley’s trial, both children l ived with their mother, Henley’s first wife. In an affidavit offered by the petitioner at the evidentiaryhearing, their mother stated that she would have allowed the children t o testify if she had been contacted by trial counsel.

Stefanie Robinson, the petit ioner’s younger sister testified that she had not been contacted by trial couns el, but said, had she

been afforded the opportunity, she would have told the sentencing jury that Henley was a good brother and that he had been very upset when he could not pay the money he had borrow ed against the family farm. According to Robins on, Henley was not a v iolent person. On cr ossexami nation, Robinson admitted that she had seen the petitioner drink beer and smoke marijuana.-10- Patricia Woodard, the petit ioner’s o lder siste r, said th at she wou ld have been willingto testify on Henley’s behalf had she been contacted by trial counsel. Woodard would have told the jury that the petitioner had taught her to ride a bicycle when they were young, and that she had never seen the petitioner become violent. On cross-examination, Woodard adm it ted that she had lived in Carthage, Tennessee, forfive years prio rto the murders and had not spent a g reat deal of time with the petitioner in the years preceding his arrest and trial.
Cynthia Brown, the petiti oner’s second wife testifie d that, had she been contacted by trial counsel, sh e would have testified i n H e nley’s behalf and told the jurythat she had never seen Henl ey ex h ibit violent behavi or and that he had been very kind to her son by

a previous marriage and had intended to adopt the boy. O n cross-examination, Brown admitted that Henley dran k alcohol and used marijuana during their marriag e.

With respect to the petitione r’s seco nd claim t hat trial counsel s hould ha ve further investigated his mental condition, Henley offered t he testimony of attorney Robert Massey who said th at trial counsel should have engaged an i ndependent psychologist to assist in the document gathering proc ess and to do an examination of those documents to determine w heth e r or not there would be any mitigation evidence that might be presented from those documents to the jury at the p enalty phase. Mr. Massey had tri ed one death penalty case at the time o f offe ring this testimony

and had settled six others. He had neve r tried a ca se in Jack son coun ty, nor had he been acquainted with the petitioner’s original trial counsel.-11- The petit ion er also offered the testimony of Dr. William D. Kenner, a psychiatrist who had interviewed Henley once for two hours in August of 1992, reviewedthe results of tests administered by a li censed clinical psycholog ist, reviewedthe interviews of family members conducted by post convicti on counsel, and reviewed the trial

testimony of Henley and co-defendant Flatt. Dr. Kenner had not spoken directly with Henley’s family, nor reviewed the entir e trial t ranscript, nor asked Henley to

recount what trial counsel had talked about with him. Dr. Kenner did not question Henley’s competency to stand trial, but said that He nley had be en depressed at the time of the homicides because of his farming f ailures a nd may have been “self-medicating” by using alcohol and drugs. On IQ te sts given, Dr. Kenne r said that Henley

had scored in the average range with a performance score of 109, a verbal score of 94, and a full scale score of 99. According to Dr. Ke nner, such a divergence between the performance score a nd the verbal score is of ten indic ative of a learning disabilit

y. Accordi ng to Dr. Kenne r, a learn ing disabi lity could have caused Henley to have difficulty mana ging his finances and could have been the actual cause of Henley’s farming failures. D r. K enner also said that because of Henley’s close relationship w ith hi s gran dfather, losing the family farm was the equivalent to Henley

of his grandfather dying a second time.
Finally, Henley testified at the post conviction h earing. On direct examination, Hen leydenied having any meani ngful consultation with Reneau. Henley said that Reneau never

asked him for

a history of his life or for any personal records such as school or medical records. Henley also said that Reneau had not spoken with any of his family members about tes tifyi ng at the sentencing heari ng. The petitioner admitted that he had never asked his family me mbers to testify in his behal f. Finall y,-12-

Henley continued to maintain that h e was innocent of the crimes for whi ch he had been convicted and sentenced to death.
Upon hearing the proof, the trial judge denied the petition forpost conviction relie f on all grounds alleged. Though the trial court made no explicit finding wit h respect to the claim that trial c ounsel was ineffective becau se he failed to investig ate Henley’s mental condition and request an evaluation,with respect to Henley’s claim that trial coun sel shoul d have prepared more witnesses for the sent encing phase, the trial court stated:

Heard a lot of witnesses about the sentencing phase. If there’s any part of it that re ally -- kind of bothers me a little bit, it‘s the sentencing phase, and I’ll have to state that. I would have like to have had another witness maybe t o have been put on. I would like for the mother to have testified when she r efused. Now whether he had talked to her two days ahead of ti me or thatday it really doesn’t make much difference. If they went in the back room and he talked to her and she still didn’t want to testify , maybe she had a reason. Maybe she had a reason then that she doesn’t have now, I don’t know. I do kn ow this, the attorney asked her. So he come back and got the grandmother and she testified, and I thought did a beautiful job as far as words, the way they read. She answered the questions, she took him through his life, she told i t. And the jury had ba sically ever yt hing thatthese witnesses

the last t wo days have talked ab out in that record before them. They didn ’t have the numbers of people saying this, but they all knew about his fam ily. They all knew abou t his gr a ndmother, his granddad dy, they knew all about these things, it was all there. It wasn’t repeated over and over by several people, but they did have that

in the case when they looked at it. But again, I would have like to have seen another witness or two, but that’s tr ial strategy. He mayhave thought that’ s eno ugh. She may have done suc h a good job that he thought this is the best I’m goi ng to get. That was the choice to make.
The petitioner

appealed and the Court of Criminal Appeal s held that the evidence preponderated against t he trial court’s finding that Henley had been
a fford ed his right to effective as sistance of counsel at the sentencing phase of the trial. Specifically, the Court of Criminal Appeals found that coun sel’s failu re to-13-

adequa tely inv estigate and prepare wi tnesses to testify on Henley ’s behalf and to adequately investigate Henley ’s mental condition resulted in a deni al of Henley’s right to effect ive assistance of counsel at sentencing. Accordingly, the C ourt of Criminal Appeal’s reversed Henley’ s death sentence and remanded for a new sentencing hearing.
Thereafter, we granted the State’s application for permission to appeal to determine whe ther the Court of Criminal Appeals e rred in concluding that the evidence preponderates against the tr ial court’s finding that Henley was afforded his constitutional right toeffective assistance of counsel a t the sentencinghearing. For the reasons that follow, w e reverse th e judgmentof the Court of Criminal Appeals and rein state th e judgme nt of the t rial co urt deny ing pos t convi ction r

elief.

STANDARD OF APPELL ATE REVIEW In resolving the iss ues in this appea l, we are guided by c ertain well-settle

d rules. The burden was on the petitioner at the evidentiary hearing to prove his case bya preponderance of the evidence. Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996); Cooper v. State , 847 S.W.2d 521, 527 (Tenn. Crim.App. 1992). The findings of fact of the t rial judge on a petition for post convi ction relief are afforded the weight of a jury v erdict and are conclusive on appeal unless the evidence in the record preponderatesagainst those findings. Tidwell , 922 S.W.2d at 500; Cooper v. State , 849 S.W.2d 744, 746 (Tenn. 199 3); Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). In evaluating wheth er the evidence preponde r ates against the trial court’s findings, we are guided by l ongstanding rules of appell ate procedure . Appellate courts in this State do not rewe igh or reevaluate the evi dence. We can not substitute2 The S ixth Am endm ent is app licable to the s tates throu gh the F ourteen th Am endm ent. See Pointer v . Texas , 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 92 3 (1965). -14- our inferences for

those drawn by the tr

ial judge. Moreover, questions concerning the credibility

of the witnesses, the w eight and value to

be given their testimony, and the factual issues raised by the e vidence are to be resolv ed by the trial judg e. Finally, the party seeking to ov erturn the findings of th e trial j udge bears the burden on app eal of demonstrating why th e evidence contained in the r ecord preponderate s against the findings of the trial judge. Bolin v. State , 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966); Cooper , 847 S.W.2d at 527; Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). It is with these principles in mind that w e evaluate the findings of the tr ial court and the Co urt of Cri minal Ap peals wi th re spect to the petitioner’s cla im of ineff ective assistance of counsel at s entencing.

INEFFECTIVE A

SSISTANCE OF C

OUNSEL A. Legal Standards Article I, Section 9of the Tennessee Constitutionprovides “that in all criminal prosecutions, the accused hath the right to be heard by himself and his couns el... .” Similarly, the Sixth Amendment 2 to the Constitution of the United States guarantees that in a ll criminal prosecuti ons, the accused shall enjoy the right . . . to hav

e th e assistance of counsel for his defense.” These constitutional prov isions afford to the accused in a criminal prosecuti on the right to effective ass istance of counsel. Baxter
v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975) and Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) . To establish a den ial of the right, a petitioner

bears the burden of proving both that c ounsel’s performance was deficient-15-

and that the deficiency prejudiced the defense. Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Strickland , 466 U.S. at 687, 104 S.Ct. at 2064

.

With respect to the first prong of the claim, we recogni zed early on that counsel’s performance is e ffectiv e if the advice given or the services rendered are within the range of competence demanded of attorneys in criminal c ases. Baxter , 523 S.W.2d at 936; see also , Goad , 938 S.W.2d at 369. To p rove a def iciency, therefore, the petitioner must show that counsel’s acts or omissions wer e so serious
as to fall below an objectiv e stan dard of reasonableness under prevai ling professional norms. Goad , 938 S.W.2d at 369; Strickland , 466 U.S. at 688, 104 S.Ct. at 2065. When assessing an attorney’s per formance it is not our function to “ second guess” tactical and strategic choices pertaining to de fense matters or to measure a defense attorney’s representation by “20-20 hindsight.” Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). As the United States Supreme Court has recog nized, Judicial scrutiny

of counsel’s performance must be highly deferential. It is all too tempting for a defendant to seco nd-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy fora court, examining counsel’s defense after it has proved unsuccessful, to conclude that a p articular act or omission of counsel was unreasonable. Strickland , 466 U.S. at 689, 104 S.Ct. at 2065; see also Burge r v. Kemp , 483 U.S. 776, 789, 107 S.Ct. 3114, 3123, 97 L.Ed.2d 638 (1987). When reviewing the facts and circumstances of a case, there fo re, a “fair assessment. . . requires that every effort be made to elimin ate the distorting effects of hindsi ght, to reconstruct the circumstances

of counsel’s chall enged conduct, and to evaluate the con duct from counsel’s perspective at the time.” Strickland , 466 U .S. at 689, 104 S.Ct. at 2065;
see also Goad , 938 S.W.2d at 369.-16- To establish the secondprong of the claim -- that counsel’s deficie ncy resulted in prejudice to the defense -- a pe titioner “must show tha t there is a reasonab le probability

that, butfor counsel’s unprofessional er rors, the result of the

proceeding would have been different. A reasonable probability is a probabilit y sufficient to
u ndermine confidence in the outcome.” Strickland , 466 U.S. at 694, 104 S.C t. a t 2068; see also Goad , 938 S.W.2d at 370. When challen ging a death sentence, a petiti oner

must show that “there is a reasonable probability that, absent the er rors , the sentencer . . . would have concl uded that the balance of aggrav ating and mitigating ci rcumstan ces did not warrant death.” Strickland , 466 U.S. at 695, 104 S.Ct. at 2069.

In determining whether a petitioner has discharged the

burden of establishing prejudice, a court must consider the totality of the evidenc e before the judge or jury. Some of the factual findings will hav e been unaffected by the errors, a nd factua l findings that were affected will have been affected in differ ent ways. Some errors will have had a perv asive effect on the infer ences to be drawn from the evidence, altering the entire evidentiarypicture, and some will have had an isolated trivia l effect. .

. . Strickland , 466 U.S. at 696-97, 104 S.Ct. at 2069; see also Goad , 938 S.W.2d 371. Where, as here, thealleged deficiency involves counsel’ s failure to present mitig ating evidence in the p e nalty phase of a capital tri al, in assessing prej udice under Strickland , several factors are si gnificant, including w hether subs tantia lly similar mitigating evidence

was presentedto the jury in either the guilt or

penalty phase of the proceedings; the nature and extent of the mitigating evidence that w as available but not presented; and whether there was such stro ng evidence of aggrav ating factors that the mitigatin g evidence would not h ave affected the jury’s determination.-17-

Goad , 938 S.W.2d at 371 (citing cases).

Because a petitioner must establish both prongs o f the test to prevail on a claim of ineffective assistance of counsel , failure to prove either deficient performance or resulting prejudi ce provides a sufficient basi s to deny relief on the claim. Indeed, a court need not address the components in any particular order

or even address both if the defendant makes an insufficient show ing ofone component. Strickland , 466 U.S. at 697, 104 S.Ct. at 2069 ; Goad , 938 S.W.2d at 370.
Applying the principles outlined ab ove, we must now deter mine whether the evidence in the record preponderates against the trial cour t’s finding th at the petitioner

fa iled to estab lish that he was deni ed his con stitutio nal right t o effec tive assistance of counsel.

B. Failure to Prepare/C all Other Witnesses Though the trial court did not use the term, it is evident from its finding that the trial court concluded that the petitioner had failed to establish prejudi ce resulting from counsel’s alleged failure to prepare and call witnesses

. In denying post conv iction relief, the trial judge observ ed that the sentencing jury “had basically every thing that these witnesses the last two days have tal ked about in that record before them.”

In reversing the deci sion of the trial court, the C ourt of Crimina l App eals stated, “[w]e do not think it is assuming too much to conclude that a jury is going to be prejudiced against a defendant upon that pe rson’s own mother r efusing to testi fy
on his or her behalf.”

As evidence of prejudice, the intermediate court quoted from-18-

the affidavit of a

juror which was

submitted as part of the petitioner ’s offer of proof at the post conviction hearin g in which the juro r said, “If a man’s own mothe r won ’t testify on his behalf then we know what we’ve go

t to do.” In addition, the intermediate court state d t hat, “[e]ven without this offer of proof, we hold that the dear th of favorable testimony offered at the sentencing hearing, when sig nificant amountsof favorable testimony were available establishes a reasonable probability that, but for Mr. Reneau’ s defici ent performance with respect to the sentencing hearing of Henley’s trial, the result of the proceeding would have been different.”
Initiallywe note that the juror’ s affidavit statement regardi ng the effect on the sentencing jury of Dorothy Henl ey’s failure to testify should not have bee n considered bythe intermediate appellate court as proof of prejudice. Indeed, the affidavit should not have been considered for any purpose. Rule 606(b) of the Tennessee Rules of Evidence, expressly prohibi ts a juror from testifying or offering an affidavit “as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon any juror’ s mind or emotion as influenc

ing that juror to assent to or dissent from the

verdict . . . ” (Emphasis added.) In this case, the juror’s affidavit related to the precise subject matter about which a jur

or is str ictly forbidden from testifying by Rule 606(b) -- the effect of the moth er’s failure to testify on the jury verdict. The affidavit violates the ex press terms of Rule 606(b) and should not have been considered by the inter mediate court as evidence of pr ejudice. See Sta te v. Stephenson , 878 S.W.2d 530, 554 (Tenn. 1994)

Moreover, Henley

’s mothe r did no

t refuse to testi fy in the presence of the ju ry. Instead, she asked to first speak with trial counsel. Althoug h the record reflects that-19-

she thereafter did not testify, at no time did she openly refuse to testify on Henley’s behalf in the presence of the jury as the Court of Criminal Appeals decision indicates. In addition, the fact that t he jury was not prov ided with an explanati on as to why Dorothy Henley did not testify does not justify a finding of prejudice

. The jury was instructed to base its sentencing decision on the evidence pres ented at trial, not

upon speculation about w hya particular witnes s did not testify. Juror

s are presumed to follow the instructions giv

en them in arriving a

t a verdict. State v. Laney , 654 S.W.2d 383, 389 (Tenn. 1983); State v. Blackmon , 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985). T herefor e, it is not appropriate t o “assume” the defense was pre judiced because Henley’s mother wasnot called as a witness in his behalf at the sentencing hearing. The fa ct th at Dorothy Henley as ked to speak with counsel when called as a witness and thereafter did not testify does not constitute a reasonable probability sufficient to undermine confidence in the outcome of the proceeding
Finally, the record does not support th e Court of CriminalAppeals’ statement that prejudice was

established because there w as a “dearth of favorable testimony offered at the sentencing hearing , when significant amounts of favorable testimony
were available.” As was previously stated, when assessing the existence of prejudice in the face of an alleged deficiency involvin g counsel’s failure to present mitigating
ev ide nce in the penalty phase of a capital trial, we consider whether substantially similar mitigating evidenc

e was presented to the jur y in either the

g uilt or penalty phase of the proceedings; the nature an d extent of themitigating evidenc e that was available but n ot present ed; and whether there wa s such strong evidenc e of aggravati ng factor s that the mitigating evidence would not have affected the jury’s determination. Goad , 938 S.W.2d at 371 (citing cases).-20- In this case, therecord fully supports the trial court’s stateme nt that, throu gh the testimon y o f Bertha Henley and the petiti oner, the original sentenc ing jury had before it basically the sam e favorable mitigation evidence th at was offered by the manywitnesses at the evid entiary hearing on the post conviction petiti on. As previouslysummarized herein, the jury heard extensive testimony about Henley’s relationship with his grandparents, includi ng his own testimo ny t hat he loved them
more than anyone else in the w orld. It is difficult t o imagine a more favorable and detailed descript i on of th e petitio ner’s cha racter th an that gi ven by Berth a Henley. It is clear from the proof at trial and t he evidentiary heari ng in this case that the petitioner

had a closer re lat ionship with his g randmother, Bertha Henley, than with any other living familymember. Indeed, the petitioner’s own moth er acknowledged that she could have offered no further information about H enley and his life thanthat given by Bertha Henle y at the sentencin g hearing.
Dorothy Henley admitted that in the y ears prec eding the murders she had resided in Davidson County and had li ttle contact with her son. On crossexamination, Dorothy Henley also admitted that she visited her son only a few times in jail before his trial . Overall, Dorothy Henley used very

general terms to descri be her relationship wit h her son. Similarly , Henley’s older si ster gave only g eneral in formati on about the petitioner, and conceded that she had little contact w ith her brother during the five years preceding the homicides.

While Henley’s younger sister and second wife had closer associ ations with him near the time of the murders, both also had personal knowledge abou t his use of drugs, specifically

marijuana, which w

as brought out during

cross-examination at-21-

the evidentiary heari ng. Had these two witnes ses testified at the

sentencing hea ring, that same i nformati on, no doubt, would have been brought to light. In v iew of Henley’s testimony throughout the trial that he had never abused drugs, the testimony

of two family members to the co ntrary woul d have been extremely detrimental to the defense.

The only othe r testimo ny offer ed at the evi dentiary hearing was that of Henley’s children who claimed they would have testified hadtrial counsel contacted theirmother wi th whom th ey were residing . However the chil dren, eleven and thirteen years old at the time of the tr ial, admittedly wer

e not informed about thetrial until its conclusion.
Therefore, the witnesses whi ch were available b ut not called as witnesses at the original trial, w

ould have offered general, v ague testimony about

the petitioner’s character, and the evidence regarding the petitioner’s use of drugs and alcohol was unfavorable. Moreover, none of these witnesses had a particularly close relationship with t he petitioner near the time of the k illings. In contras

t, the mitigating proof actuallypresented was detailed, poignant, and favorable and w as provided by the petitioner

and his grandmot her, wit h whom he had a close relationship. It is significant

that the State d id not cross examine either the petitioner or his grandmother at the sentencin g hearing.
Clearly, trial counsel has a duty to invest igate a nd prepare for the penalty phase of a capital tri al s ince “evidence about the defendant’ s background and character

is relevant because of the bel ief

. . . that defendants who commit cr iminal-22-

acts that are attributable to a disadvantaged backg round, or to emotional and mental problems

may be less culpable th an defendants who have no such ex cuse.” California v. Brown , 479 U.S. 538, 544, 107 S.Ct. 837, 841, 93 L.Ed .2d 934 (1987). However, in this case, the proof does not preponderate agai nst the trial court’s find ing that the petitioner suffered no prej udice even assuming trial counsel failed to competently fulfill that duty. Nothing was adduced at the po st convicti on hearing which could possibly have added anything favorable to the mitigation proof that w as offered at the original trial by the petition er and h is grandmother. Though the petitioner

offered a large number of witnes ses who claimedthey

would have testified
on his behalf at the sentencing hearing but for counsel’s incompetence, the quality of theirtestimony was we akened either by their l imited relationship wi th Henley at the time of the murders or by their personal knowledge of hi s drug use at the time of the murd ers. As the trial judge i mplicitly found, the testimony offered at the pos t conviction hearing was, at most, cumulative. State v. Melson , 772 S.W.2d 417, 419 (Tenn. 1989). Appellate courts must consi der the quality of the proposed tes timony rather than the quantity of witnesses when determining whether prejudice has been established. Finally, proof of the agg ravating circumstan c e i n this case, that the murders were “especially heinous, atrocious, or c ruel in th at it involved torture or depravity

of mind,” Tenn. Code Ann. § 39-2-203(I)(5) (1982), was strong. The victi ms were forced a

t gunpoi nt from the road to their home. The wi fe watched as her husband was shot. She was then shot several times, but , according to the testimony at trial, she remained alive and conscious for a t ime after the fire had begun, and actuallydied of smoke inhalation. In our view, the petitioner has

not established the existence of a “reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not-23-

warrant death.” Strickland , 466 U.S. at 695, 104 S.Ct. at 2069

. C. Failure to Investigate Mental Condition and Request Evaluation The Court of Criminal Appea ls also found that the evidence pre ponderates against the t rial cour t’s denial of Henley’s claim that counsel inadequately investigatedthe petitioner’s mental condi tion a nd failed to request a mental evaluation.

At the evide ntiary hea ring, Henl ey offer ed the te stimony of Dr. K enner who said that Henley lost the family farm because he had a learning disability and was a bad manager

and that Henley was depressed about the loss of the family farm and
was “self-medicating” w ith alcohol and drugs near the time of the homicides. Based upon Dr. Kenner’s tes timony, H enley claimed that had trial counsel properly investigatedhis mental conditionand requested that he undergo a mental eval uation, Reneau would have learned of this mitigating pro

of and presented it at the sentencing hea rin g. In reversing the trial court’s denial of relief, the Court of Criminal Appeals implicitlyfound that trial counsel had been deficient in failing

to investigate and offer this proof and that the deficiency ha s r es ul te d i n p re

ju di ce to He nl ey . We

disagree.

While it is true that often a gre ater duty of

inquiry into

a client’s mental health is imposed for the penalty phase of a capital trial, Goad , 938 S.W.2d at 370, it is also well-established that the reasonableness of counsel’s actions m a y be determined or substantially influenced by the defendant’s own statements o r actions..

. And when a defendant has g iven counsel reason to bel ieve that pursuing certain investiga tion s would be fruitless or even harmful, counsel’s failure to pursue those inv estigations may not

la ter be-24- challenged as unreasonable.
Strickland , 466 U.S. at 691, 104 S.Ct. at 2066

.

At the trial of this case, the defendant maintained his inn ocence, flatly denied that he had been intoxicated on the da y of the murders, a nd also denied ever abusing drugs. Moreover, Henley said his farming operation had failed because of unpredictable weather, a drought followedthe next year by floods. Clearly then, the evidence for whic h trial counsel is now faulted for not discovering and introducing would have been inconsistent with the defendant’s own testimony and harmful to the defense theory throughout the tr ial. When assessing the performance of tri al counsel, courts must elimin ate the “distorting effects of hindsight” andevaluate the challenged conduct from counsel’ sperspective at the time, rather than from the perspect ive of a mental health expert offering testimony in a post conv ict ion proceeding. Applying that standard, it is clear that trial counsel’s performance and in vestigat ion of Henley’s mental conditi on was not deficient. Accor dingly, the evidence does not preponderate against the trial court’s denial of post conviction relief.

CONCLUSION After carefully review

ing the record, we have de termined that the Court of Criminal Appeals erred in concludi ng that the evidence preponderates ag ainst the trial court’s denial of post conviction reli ef. Accordingly, the j udgment of the Court of Criminal Appeals reversing Henley’s death sentence and ordering a new sentencing hearing is reversed, and the judgment of the trial cour t denying the petition for post-25-

conviction relief is reinstated. The sentence of death shall be carr ied out as provided bylaw on the 27th day of April, 1998, unless stayed by this Cour t or other appropriate authority.

____________________________________ FRANK F. DROWOTA, III, JUSTICE
Concur: Anderson, C.J. Holder, J. Reid, J. and Birch, J. di ssent - See Separate Dissenting Opinion.