# FILED
March 31, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9712- CR-00546 ) Appellee, ) ) ) SULLIVAN COUNTY VS. ) ) HON. PHYLLIS H. MILLER BILLY G. BARNETT, ) JUDGE ) Appe llant. ) (Sentencing)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : RICHARD A. SPI VEY JOHN KNOX WALKUP 142 Cherokee Street Attorney Generaland Reporter Kingsport, TN 37660 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 H. GREELEY

WELLS, JR. Distri ct Attor ney General BARRY STAUBUS Assistant Distri ct Attor ney General Blountvi lle, TN 37617

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- O P I N I O N
The petitioner, Joseph Barnett, ap peals as of right from the denial of his petition for post-conviction rel ief by the Claiborne County Criminal Court. He s

eeks relief from his conviction following a jury trial for first degree murder, a Class A felony, resulting in a sentence of life imprisonment. He claims that the trial cour t incorrectly found that he received the effective assi stance of counsel. Specifically, the petitioner contends that his trial attorney fail ed to preserve on the recor d his motion for a psychiatr ic expert, thereby precluding him from showing on appeal a particularized need for the expert. He also argues that his attor ney was ineffective beca use he failed to conduct the motion hearing ex parte . The state argues that the tr ial court properly denied the postconviction petition. We agree.
At the evidentiary hear ing, the petitioner testi

fied that he was confined to a wheelchair as a resul

t of a house fire in 1983 that requi red both of his legs to be amputated. He said he was hos pitalized for mental ill ness at Kalamazoo State Hospital in Michigan and Lakeshor e Mental Health Institute i n Knoxville. He s aid that from 1983 to 1990, he was taking various prescription drugs, and he often had blackouts. He said he was not present when his attorney made a motion for a p sychiatric exper

t, and he did not know that his attor ney intended to use insanity as a defense.

On cross-examination, the petitioner said that he beli eved the victim, his uncle, was not dead. He said he c ontinued to believe that the v ictim was not dead, eve n after his attorney furnished him with the victim’s death certificate and autopsy photo graphs.

Jessie Jones, the petit ioner’ s mother , testified that the petitioner complai ned of a severe headache for three days before the murder. She sa id the petitioner previously-3-

had been hospitalized for mental problems after he hit her. She s aid the petitioner thought the victim w

as still alive.

On cross-examination, M s. Jones said she discusse d the petitioner’s mental problems with his attor ney. She said the petitioner was withdraw

n and would not talk to anyone but her. She said that at trial, the petitioner t estified that he drank moonshine throughout the day of the murder.
The petitioner’s trial att orney testified that the facts of the case were undisputed and that several witnesses saw the petitioner shoot the victim. He s aid he felt the petitioner’s only viable defenses were mental deficiency and perhaps voluntary intoxication. He sai d that he filed a notice of his intent to use insanity as a defense on November 28, 1990. He testified that the petitioner ref used to believe that the victim was dead.
The attorney testified that he bel ieved that the law at the time of trial did not provide for psychiatr

ic experts for indig ent defendants in noncapital cases. He said that nevertheless, he made a motion for a psychiatric ex

pert because he wanted to show that the petitioner’s mental problems, combined with his use of drugs and alcohol, militated against premedita tion and deliberation. He s aid that the motion was made orally, and it was

not transcribed. He sai d that a few days later, when he realized the motion had not been made a part of the recor d, he orally synopsi zed the arguments made and the trial court’s denial of his motion. The synopsis was as follows: Your Honor, this last Friday, April 4th, I filed a motion for an expert witness in this matter. I believe it is on file in the Cl e rk’s office. We had on Wed nesday, April 2nd, received the latest medical records from Lakeshore Mental Health and a t that time, there was a menti on in the neurological evaluation by Dr. Michael L. E isenstadt, M.D., Ph.D. that Mr. Barnett had a mildlyabnormal EEG, suffered from something called encephal opathy and that he recommended a CT scan to be run. We discovered on that date, Wed nesday, April 2nd, that no CT scan had been run at Lakeshore Mental Health and we were told that it was simpl y a time problem. That they weren’t able to get it run during the time that Mr. Barnett w as there.1 The synop sis re fers to the doct or as “Eric S. Ing ram ,” but t he re cord reflec ts tha t his n am e is actuall y Eric S. Engum. -4-

Upon conferring with a

Dr. Eric S. Ingram, 1 who is a neuropsychologist

. . . co nc erning the findings of encephalopathy and abnorm al EEG, Dr. Ingram essentiallymade me aware of the fact that the defendan t probably had some sort of cognitive br ai n damage which would affect his mental ability and capacity to

understand his actions, although it might not mean that he was insane or that he w as incompe te nt to stand trial could effect w hat happened at the time when this incident occurred [sic]. He suggested that Mr. B ar nett, from those findings, could be suff ering from traumatic stress disorder, a depressive disorder, and/or organic brain damage, as well as the intoxication that is in the record here. So, he suggested that a CT scan be run and quite likely that a CT scan would not sh owfindings of encepha lopathy, but that a MIR or a P-3-10 0 evoked potentials exami nation would be more likely to

show the extent of what ever thought pattern disorder there could have been. In response to that motion - we brought that up off the record on Friday and I believe it was

Your Honor’s ruli ng that at that time our motion for an expert witness w

as denied, but that you suggested that we get together and have a CT scan run o n Monday, which would have been yesterday, April 8th. That CT scan was run at the local hospital . . . [The doctor] has orally given us a report that the CT scan s howed nothing ab norma l. He also informed me that a CT scan would show things like tumors and things that were abnormal within the growth of the brain, but something along the li nes of encephalopathy would be mor e distinguished by thi ng s like EEGs and MIRs, and P-3-100s types of tests. So, that is the status of it now . And I would l i ke to preser ve my objection to the ruling .

. . The petitioner’s trial att orney also said he filed a written motion setting forth the tests he believed Dr. Engum w

ould perform and why those t ests were necessary

.
On cross-examination, the petitioner’s trial at torney said that the recor d fairly and accurately depicted his recollection of the presentati on made to the trial court regarding his moti on for a psychia tric ex pert. H e said t hat noth ing per tinent appeared

to be lef t out of the record and that he includ ed everything that he thought was important i n order to perfect the record for appeal. H e said that after his motion w as denied, he could not find any witnesses, ex

pert or lay, to support

a theory of mental disease.
Martha Yoakum, the petitioner ’s attorney on direct appeal, testified that she believed the petitioner’s trial attorney was ineffective by failing to preserve the record-5-

regard ing his

motion fo r a psy

chiatr ic expe rt and by

failing to marsh all mor

e proof of

a particularized need for a psychiatric exper t. She said that when she ar gued the petitioner’s case before the supreme court, their questions ind icated that they were very concerned that the motion hearing was not transcribed. She concede d that the court’s written opinion did not allude to this concern. She said that the petitioner’s trial attorney should have had friends or family members testify at the motion hear ing regarding the petitioner’s strange beh avior in order to show a particularized need for an expert. She said she believed that w ithout the testimony of an expe rt psychiatrist, the petitioner was denied a fair trial.

No other witnesses w

ere presented at the evidenti ary hearing. At it s conclusion, the trial court determined that the petitioner was not denied the effective assistance of counsel, finding as follows: The record reveals that at the time this case was being processed through the Crimi nal Court the foll owing fact ors all cam e into pla y: (1) Tennessee statutes appeared to authorize such extraordinary expenses in capital cases b ut not in non-capital cases. (The i nstant case was not a capital case). (2) The Court expressed its sympathy for the reques t but declined to contravene the statute. (3) Counsel . . . raised the question and preserved it for review on appeal. (4) The Tennessee Department of Mental Health found the pet itio ner competent to stand trial and determined that a defense of insanity could not be supported. The Mental Health Department report suggested tha t a CT scan might be revealing (wh y that Department did not conduct such a scan is not known). (5) Since the scan was sug gested by the Department of He alth, but not performed, the Trial Court acting in the fullness of precaution ordered it done at the Claiborne County Hospital, with the expense to be taxed as c ost s. The test was done and the report was negative. (6) Trial counsel produced a letter from a qualified expert settin g out a large number of conditions which might be revealed by further and more detailed study by an expert of defendant’s choos ing. This Cour t fel t that the extraordinaryauthorization of funds to d etermine what mightbe revealed was outsid e its stat utory aut hority.

. . . .-6- The argument that trial counse l should have put more evidence in the record on the subject presupposes that such evidence existed at that time. Th ere is no showing that such evidence was available. There is no showing based on the post-conviction hear ing that such evidence e xisted.

. . . . This Court finds that

defense counsel did not render “ineffective assistance of counsel” but rather prese rved aquestion of first impression for appeal, put as much evidence in the reco rd as he had available and otherwise adequately represented the defendant/pe titioner. The procedural history of thi s case warrants ex planation. In 1985, the United State Suprem e Court held in a ca pital case the f ollowing: [W]hen a defendant demonstrates to the trial judge that his sanity

at the time o f the offense is to be a significant factor at trial, the Stat e must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination a nd assist in evaluation,preparation, and presentation of the defense. Ake v. Okl ahoma , 470 U.S. 68, 83, 105 S. Ct. 1087, 1096 (1985). The Court also indicated that a hearing on a defendant’s motio n for a psychiatric expert should be held
ex parte

. Id ., 470 U.S. at 83, 105 S. Ct. at 1097. On direct appeal to this court, the petitioner in the present ca se relied on Ake to support his contention that the trial court should have granted his motion for a psychiatric expert. However, this court concluded that the holding in Ake was limited to capital cases and that there was no statutory authority in Tennessee for the ap pointment of a psychiatric ex pert in noncapital cases. State v. Joseph Barnett , No. 03C01-9304-CR-00 113, Claibor ne County (

Tenn. Crim. App. June 28, 1994), aff’d on other grounds , 909 S.W.2d 423, 424 (Tenn. 1995).
On appeal, however, our supreme court held that Ake was not limited to capital
cases. Barnett , 909 S.W.2d at 424. The court determined that an ex parte hearing is required on a defendant’s req uest for a psychiatric e xpert. Id . at 429. The court also held that due process requi res that an indigent defendant hav e a fair opportunity to present his defense, including in noncapital cases. Id . at 429. The court held that in order for an indigent defendant to r eceive a state-funded psyc hiatric expert, the defendant must make a threshold showi ng of a particularized need for the expert. Id . at-7-

431. To establish this need, the defend ant “must show that a psychiatric expert is necessary to protect his right to a fair trial. Unsupported assertions that a psychiatric expert is necessary to counter the State’s proof are not sufficien t.” Id . The court concluded that in the petitioner ’s case, the petitioner fail ed to establish a particula rized need for an expert, concluding that the tests sought by him were only in the “‘mere hope or suspicion’ that favorable evidence could be obtained.” Id . (quoting State v. Mills , 420 S.E.2d 114, 117 (1992)).
The petitioner now claims that the trial court erroneously denied his postconviction petition, arguing that his trial attorney’s failure to preserve the record regarding his motio n for a ps ychiatric e xpert resu lted in an inability t o show a particularized need for an expert. Thus, he argues his trial attorney was ineffective. He also argues that his tr

ial attorney was i neffective by failing to c onduct the motion hearing ex parte . Finally, he arg ues that if a psychiatric expert had been availabl e at trial, the expert w

ould have testified that the peti tioner’s intoxicati on at the time of the offense precluded a finding of premeditatio n and deliberation. The state cont ends that the petition was properl y denied.

Under the Sixth Amendment, when a claim of ineff ective assistance of counsel is made, the burden is upon the petitio ner to show (1) that co unsel’s performance was deficient and (2) that the deficiency was prejudicial in terms of rendering a reason able probability that the result of the trial was unreliable or the proceedings fundam entally unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052,2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct.838, 842-44 (1993). The Strickland standard has been applied to the r ight to counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 41 9 n. 2 (Tenn. 1989).-8- In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court decided that attorneys shoul d be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing c

ounsel’s conduct, a “fair as sessment of attorney performance r equires that every effort be made to eliminate the distorting eff ects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to ev aluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982).
We also note that the approach to the issue of the ineffectiv e assistance of counsel does not have to start with an analysis of an attorney’s conduct. If prejudice is not shown, we need not seek to determine the validity of the allegations about deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069.
In a post-conviction ca

se, the burden is on the petiti oner to prove his gr ounds for relief by clear and convincing evidence. T.C.A. § 40-30-210(f). On appeal, we are bound by the trial court’ s findings unless we c onclude that the evidence pre ponderates against those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The petitioner has the burden of illustrating how the evidence prepon derates against the judgment entered. Id . We conclude that the pet itioner has failed to meet this burden.
The petitioner has failed to show how his trial attor

ney’s failure to transcr

ibe the hearing for a psychiatr

ic expert prejudiced h im. First, he presented no evidence at the post-conviction evidentiary hearing to support his assertion that there was a-9-

particularized need for a psychiatric expert. There was no testimony from any witness, lay or expert, regarding the petitioner’s need for further psychiatri c evaluation that was not presented at the motion hearing or at trial. In additi on, the petitioner has failed to show how the manner in w hich his trial attorney

preserved the record pr ejudiced him. Obviously the better practice would have been for the trial attorney to have transcribed the motion hearing. How ever, on direct appeal, the appellate courts had avai lable for their review the r

estatement of the argument at the motion hea ring to which no objection was made by the state, a voluminous set of the petitioner’s medical rec ords, a CT scan, and the trial trans cripts, all of which document the petitioner’s mental history. Thus, there was ample evi dence from which a revi ewing court could hav e determined whether the petitioner satisfied the threshold showing of a particularized need f or a psychiatric exper

t.
We also do not believe that the petitioner’ s trial attorney w as ineffective for failing to hold the mot ion hearing ex parte . Generally, ex parte hearings are disfavored in Tennessee. Barnett , 909 S.W.2d at 428. However, in Barnett , our supreme court determined that Ake requires an ex parte hearing on a motion for a psy chiatric expert. Barnett , 909 S.W.2d at 428. Before our supreme court’s deci sion in Barnett , there was no reason for petitioner’s tr ial attorney to antici pate that an ex parte hearing would be required. We do not believe that the peti tioner’s trial attorney

was ineffective for failing to anticipate an appellate cour t decision, nor do we bel ieve that the petitioner w as prejudiced.
Finally, the petitioner argues that his attorney was ineffective because if his attorney had made the requis ite showing of a particularized need, and if the heari ng had been transcribed, then a psy chiatric expert w

ould have testified about the effects of the petitioner’s volunt

ary intoxication on

his mental state at the time of the offense. The-10-

petitioner’s argument is nothing more than speculation , and the petitioner failed to offer any evidence at the ev identiary hearing to

support such a contention.
In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

________________________________ Joseph M. Tipto n, Judge

CONCUR:

____________________________ Gary R. Wad e, Presiding Judge

____________________________ David H. Wel les, Judge