### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON O ct obe r 5, 200 4 S es sio n



### JO N HALL v. S TATE OF TENNESS EE

Direc t Appeal from the Circ uit Court for Madison Cou nty No. C00-422 R oy B. Morgan, Judge

No. W2003-00669-C CA-R 3-P D - F iled Janu ary 5, 2005

Th e pe tit ion e r, Jon H a ll, app e a ls a s o f rig ht the jud g me nt o f the Ma dis on Co un ty Cir c uit Court deny ing his pe tition for post-conviction relief from his ca

pital murder co n v i cti on. The petitioner wa s convicted of the 1994 first deg ree murder of his estrang ed wife , Billie Jo Hall. At the conclusion of the pe nalty phase of the trial, the jury

found one a g g ravating ci rc u m s t an ce that the murder w as espe cially

heinous, atroc ious and crue l in that it i nvolved torture or serious phy sical abuse be y ond that nece ssary to produce d ea t h

. See T.C.A. § 39-13- 204(i)(5) . The jury further found that the a g g ravating c ircumstance o utweig hed the e vidence of mitiga ting c ircumstance s bey o n d a re asonable doubt and sentenc ed the pe titioner to death. The pe titioner’s conviction and
sentenc e of de at h we re af fi rmed on a

ppeal. See State v. Hall, 8 S.W.3d 593 (Tenn. 1999), re h’g denied, ( Dec . 27, 1999), cert. de nied, 531 U.S. 837 (2000). The pe titioner filed a pr o se petition for post-conviction re lief on Dec ember 7, 2000, which wa s followed by an ame nded petition on November

1, 2001. On Fe bruary 20, 2003, the trial court denied re lief and dismissed the petition. The pe titioner appea ls, claiming tha t: (1) counse l were ineffe ctive at the g uilt phase; (2) c ounsel wer e ine ff e c tiv e a t th e pe na lty

ph a se; (3) th e he ino us , atr oc iou s o r c ru e l a g g ra vatin g c ir c ums ta nc e is unconstitutional as applied in this case; (4) the impo s ition of the death pe nalty is unreliable a nd violates principles prote cted b y b o t h the United States and Te nnessee Constit utions; and (5) the death s e n te n c e is u n c o n s ti tu ti o n a l a s it in f r in g e s u p o n th e p e ti ti o n e r ’ s r ig h t t o li f e a n d is not

nece s s ar y to p r o mo te a n y c o mp e ll in g s tate in te r e s t. We c o n c lu d e th a t n o e rr o r o f la w re quires

reve rsal, and w e af

firm the trial c ourt’s denia l of post-conviction re lief.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , J ., delivere d the opinion of the court, in which D AVI D G. H AYES and J AM ES C UR WO OD W I TT , J R ., J J ., joined.

Pa ul N . B uc ha na n, B re ntw oo d, T e n n e s s e e , an d D an n y R . E lli s, Jac ks on , T e nn e sse e , f or the app e lla nt, Jon H a ll.2

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l and Re po rt e r; Ma rk A. F ulk s, As sis ta nt A tto rn e y Ge ne ra l; J ames G. Woodall, District Attorney Gene ral; and Alfre d Ly nn Earls, Assistant D istr i ct At t o rney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Bac kgr ound

The following fac ts were develope d at the petitioner’s trial and noted by the supreme court in the di rec t appea l. See Ha ll, 8 S.W .3d at 596-99. The petitioner and the victim were marrie d, and the victim ha d two daug hters, Jennifer a nd Cy nthia, from a pr evious relationship of the victim. The couple ha d tw o mo r e d aug hters, Stephanie and J essica. T he y oung est, J essica, suf fer ed fr om cer ebra l palsy . I n 1994, the victim and the petitioner be g an having marital problems and were living separ ately

.

On the nig ht o f Jul y

29 , 1 99 4, the pe ti ti on er wen t to the vic tim ’s ho us e to d isc us s a

re c on c ili a tio n. He br ou g ht a $2 5. 00 mon e y

or de r m a de ou t to the vic tim a s a pa y me nt t ow ardc hil d support. Prior to entering the house, the petitioner disconnec ted t he telephone line at the utilitybox on the outside wall of the house. When the victim answere d the door, the pe titioner pushed his way int o th e ro om w he re sh e a ndthe c hil dr e n w e re watc hin g te le vis ion

. Th e pe tit ion e r tol d the g ir ls t o g o to b e d

. W h e n t h e y d i d n o t i m m e d i a t e l y o b e y h i s o r d e r , t h e p e t i t i o n e r t i p p e d o v e r t he c ha irin which the victim was sitting. T he petitioner a nd the victim went bac k into he r b ed ro o m . The

c hil dr e n, wh o h a d g on e int o th e ir be dr oo ms, c ou ld

h e a r “ [t ]hin g s sl a mmi ng aro un d” a ndthe ir pa re nts y elling at eac h another

. When thechildren trie d to enter the room, they found the door bloc ked. The three oldest children, Jennifer, Cy nthia and Stephanie, pe rsisted in their efforts t o g et i nto the room

a nd fi na ll y

s u c c e e d e d

. T h e y

a t t e m p t e d t o s t o p t h e p e t i t i o n e r f r o mh u r t i n g t h e i r

m o t h e r

. C y n t hia jumped on the petit i o n er ’s back a nd bit him. Thi s did not stop t he petitioner’ s attack. When the

v ic ti m t o ldth e c h il d r e n to g o to a n e ig h b o r ’ s h o u s e , th e p e ti ti o n e r to ldth e m th a t i f

th e y w e n t f or help, “he was g oing to kill Mama .” He also told the victim, a colleg e student, that she would ne ver live to gr aduate . Cy nthia and Stephanie t ri ed to use the te lephone to ca ll for help, but they discovere d the telephone s would not work. At that point, they went to a ne ighbor ’s house whe re the y called 9- 1-1. Jennifer, the oldest child, was the last to leave the hous e, carrying he r sister Jessica. Be fore she left, she saw he r mother a nd the petitioner lea ve the be droom an d g o outside. She watche d the petitioner dra g her mother , “kicking and scr eaming ,” to t he small pool in the back y ard.

Th e fi rs to f

f i c e r t o arr i v e o n t h e s c e n e w a s C h i e f Je rr y B i n g h a mo f

t h e H e n d e r s o n C o u n ty Sheriff’ s Depa

rtment. Upon hi s arrival, he found the vi ctim’s body floating fac e down in the water. H e i m m e d i a t e l y

c a l l e d E m e r g e n c y

M e d i c a l S e r v i c e s a n d a

T e n n e s s e e B u r e a u o f

In v e s t i g a t i o n ( T B I) investigator. TB I

Ag ent B rian B yrd ar

rived on the sc ene shortly afte r midnight.

Ag ent B yrd en ter e d

th e house and f

ound the master be droom in disarra y . Bloodstains marke d the be d, a c ou nte r t op , a nd a we dd ing dr e ss. Th e te le ph on e s ins ide the ho us e we re of f the ir ho ok s.3

A $25.00 money order made out to the victim a nd dated the day of the murde r wa s found inside the ho us e . N o w e apo ns we re fo un d. A t ra il of dr a g mark s a nd blo od sta ins le d f ro m th e ma ste r b e dr oo m, out the front door, over the driveway , past the s andbox, and down to the pool in the bac k y ard. The victim’s t-shirt was ly ing be side the pool. Clumps of gr ass ripped f rom the g roun d fl o ated in the blood-tinge d water

of the pool. Outside the front door of the hous e the telephone junction box was opened, a nd the telephone line was disconne cted. The g rass a nd wee ds near this box were matted down.

Dr. O’ Brien Clay Smit h, the forensic pathologist who perf ormed the autopsy , testified that the primary

cause of death was asphyx ia re sulting fr om a combination of manual strang ulation and drowning . He c ould not say with certainty that either strang ulation or drowning was the exclusive

cause of death. Evidence supporting strang ling a s a contributing cause of death included bruising

on the le ft a ndri g ht s ide s o f the vic tim ’s ne c k, he mor rh a g ing in the ne c k mu sc le s a ro un d th e hy oid bone in the nec k, and blee ding in the thyroid g land, which indicated that extensive compression had been a pplied to the neck. Evidence supporting drowning as a c ontributing c ause of death wa s water found in both the victim’s stomach and in her bloodstream.

Be fore dy ing, the victim sustained at least eig hty -three separ ate wounds, inc luding se vera l blo ws to the he a d, a

fr a c tur e d n os e , mu lti ple la c e ratio ns , a ndbr uis e s a ndabr a sio ns to the c he st, abdomen, g enitals, arms, leg s and bac k. Abra sions on the victim’s back wer e consistent with having b ee n d ra gged ac ro s s p av em en t

. Dr

. S m i t h d es cr i b ed s o m e o f t h e i n j u ri es t o t h e v i ct i m ’s ar m s , l egs and hands a s defe nsive wounds. He c hara cte ri zed the injuries to the neck, f ace and hea d as intention a l “ ta

r g e t” w o u n d s

. E xc e p t f

o r th e p h y s ic a l t

r a u ma a s s o c iate d w ith th e s tr a n g u lation, howeve r, none of

the injuries would have proven f atal.

Chris Dutton, who was conf ined in a cell next to the petitioner, testified that while both men

wer e inca rce rate d, the petitioner confide d in him about his wife’s murde r. When describing what happene d on the nig ht of the murder , the petitioner told Dutton that he h ad t ri ed t o talk with the vic t i m ab o u t r e c o n c i l i n g b u t “ [a ]l l s h e w a s i n t e r e s t e d i n w a s t h e m o n e y

. ” W h e n s h e r e fu se d to consider his plea

for r econc iliation and demanded that he leave
, “his temper g ot the best of him and he beg an to strike her.” Acc ording to Dutton, the petitioner had de termined, e ven bef ore he arrived at his wife’ s house, “to m ak e h er fe el as he did. He w anted he r to suffe r as he did, fee l the he lpl e ssn e ss tha t he wa s f e e lin g be c a us e sh e too k h is w or ld a way fr om h im. ” The pe tit ion e r t old Dutton that he hit his wife in the head until he panicked, thre w her in the swimming pool, then re

enter ed the house , took the car key s, and drove awa y

in the victim’s minivan.

On cr oss-examination, Du tt o nadmitted that the petitioner told him that he was de presse d and had bee n drinking since he telephoned his wife ear lier that day

. The petiti oner also told Dutton that he wa s very

conce rned a

bout the welfa

re of his two daug h t er s , espec ially J essica. T he petitioner

e xpla ine d th a t he dis c on ne c te d th e te le ph on e lin e be c a us e wh e n he a ndhis wi fe arg ue d in the pa st, she had c alled the police

.4

Two witnesses testified on the petitioner’s be half during the g uilt phase of trial. Dr . L y nn Donna Z ag er, a

clinical psy cholog ist, interviewe d the petit ioner severa l times afte r hi s arr est. She diag nosed him as de p ressed and suffe ring from alc ohol depende nce. In addition, she noted persona litychar acte ristics of par anoia a nd depende ncy . I n Dr. Zager ’s o p inion, at the time of the killing, the petitioner suf fer ed fr om depre ssion and alcohol intox ication. These f actor s were compounded by

his personality char acte ristics and various psy cho-soc ial stressors, including a sick child, l o s s o f employ ment with the resulting financ ial problems, his impending divorc e, and the terminal illness of a b ro t h er

. Dr. Za g er te stified that, in her opinion, the petitioner a cted in an impulsi ve manne r in killing his wife, r ather than pursuant to a pr econc eived plan.

On cr oss-examin at i o n , Dr. Z ag er a dmitted that she based he r opinion conce rning the petitioner’s intox icated sta te on statements he ma de to her and statemen t s o f ot her w itnesses who

saw him drinking on the day of the murder. She ag ree d that no one she interview ed re m ar k ed on whether the petitioner e x hibited any of the ty pical phy si cal sig ns of intox ication, such a s slurred speec h or lac k of coor dination.

Randy Helms, the petitioner’ s prior employ er, a lso testified on behalf of the petitioner. Mr. He lms sa id that be fo re the kil lin g , the pe tit ion e r ha d be e n se ve re ly de pr e sse d b e c a us e of his fa mil y problems.

The petiti oner attempted to call his sister, Shery l Arbog ast, to testify reg arding his state of mind at the time of the murder , but she had no fir st-hand knowledg e of the petitioner’s state of mind on the nig ht of the murder

. I n fac t, Ms. Arbog ast admitted she had not spoken to the petitioner for

sever al months before the murder. Her testimonyreg arding the petitioner’s state of mind was base d

on a conve rsation she had with her brother, Jeff H all, since de cea sed, on the da y of the murde r. The trial court would not permit thi s hear say testimonyto be admitted bef ore the jury . At the conc lusion of the e vidence , the jury

found the pe titioner g uiltyof first deg ree preme ditated murder

. During the sentenc ing pha se the state rec alled Dr . Smit h to testify in more deta il concerning the extent of the victim’s injuries. The state introduc ed photogr ap h s of the injuries take n at the autopsy to illus trate D r. Smith’s testim o n y . These photog raphs de picted the numer ous ext erna l wounds the petitioner inflicte d while strug g ling with the victim.

The pe titioner called Dr. Z ag er and Dr. J oe Mount, a psy cholog ical examiner who c ounseled the petitioner a t Riverbend Ma x i m u m Security Institut ion. Both desc ribed the pe titioner as depre ssed, re morsef

u l, s u ic id a l, an d

extremely

conce rned a

bout his children. Dr. Mount testified that the petitioner had been diag nosed as suff ering from an a djustment disorder with mix ed emotional features (a nx iety

and depr ession) and “ substance a buse of de pendenc e by

history .”

Ra nd y He lms a lso tes tif

ie d a g a in. He de sc ri be d th e pe tit ion e r a s a g oo d, de pe nd able

e mpl oy e e a ndtol d h ow the pe tit ion e r h a d c are d f or his c hil dr e n w he n h e br ou g ht the m to w or k w ith him

. He lms state d that the pe tit ion e r lov e d his wi fe a nd c hil dr e n a ndha d h op e d to re c on c ile wi th the vic tim

.5

The pe t i t i o n er als o prese nted his three sister s and his mother to rec ount the history of the peti t i o n er and his family . The pe titioner was the y oung est of seve n children. H is father , an alcoholic, phy sically and verba lly abused his w ife until he died from a heart attack in 1974 when the petitioner wa s ten. The pe titioner’s fathe r denie d that the petit i o n er wa s his son and snubbed the petitioner. The w itnesses’ desc riptions of the fig hts betwee n the petitioner’s pa rents e e rily

para lleled the pe tit ion e r’ s f

ina l c on fr on ta tio n w ith his ow n w if e . A ll of the pe tit ion e r’ s r e la tiv e s d e sc ri be d h im as a g ood fathe r who loved his childre n.

P os t- Co nvi c ti on H e ar ing

At th e p o s t -c o n v i ct i o n h ea ri n g, De b b i e D av i s , t h e p et i t i o n er ’s s i s t er , wh o also testified during the pena lty

phase of the petitioner’s tria l, t es t ified that she wa s not contacte d by her br other’s attorney s until t he nig ht befor e she was to t estify . Ms. Davis believe d that she had information that would have be en usef

ul during both the penalty and g uilt phases of the trial. She sa id that the pe tit ion e r w a s li vin g a t he r h ome wh e n h e me t th e vic tim

. Ms. Da vis sa id s he ha d th e op po rtun ity to observe he r brother

and t h e victim on many

occa sions and stated that she of ten witnessed the victim being a

busive, both mentally

and phy sically , to her brothe r. On one occas i o n , s h e saw the victim kicking at the petitioner’s g roin are a. She described their re lationship as “diffe rent” in that “B illie was alwa y s in charg e of e verything. B illie w as i n ch ar g e of a ll the bills . Everything wa s alway s in Billie’s name. J on handed Billie his pay chec k. She did everything.” She also stated that the petitioner a nd the victim used illeg al drug s. Ms. Davis said h er b ro t h er h ad a habit of disconnec ting tele phone lines of whic h she first became a war e whe n they wer e living in F ay etteville, North Carolina. She said the victim a nd the petitioner we re ha ving a party and neig hbors threatened
to call the police. Howe ver, the petitioner disconnec ted their tele phone to pre vent them from c alling the police. Ms. Da vis said that on a sepa rate occa si o n , the petitioner disconne cted his mother’ s te le ph on e . M s. Da vis be lie ve d th e pe tit ion e r dis c on ne c te d te le ph on e lin e s b e c a us e , a s th e y ou ng e st child, he wa s “vy ing f

or attention.” Reg arding the victim, Ms. Da vis state d that she often f abric ated stories about her self. Ms. Davis di d not believe the petitioner killed the victim with premeditation. She said he wa s hopelessly in love with the victim.

Ms. Davis testified that she b elieved that the petitioner held more than “normal fea rs of po lic e of fi c e rs .” Ms. Da vis e xpla ine d th a t sh e ha d o wn e d a Go lden C or

ra l F a mil y

Ste akh ou se in No rth Ca ro lin a a ndha d e nc ou ra g e d p oli c e of fi c e rs to e a t th e re

. Ho we ve r, if po lic e of fi c e rs we re in the re staurant, the pe titioner would g o to the back be cause he wa s “just totallyterrif ied of police office rs.” Ms. Da vis also noted the petitioner’s a ffe ction for his dog , Sampson.

Re g ard ing fa mil y

ba c kg ro un d, Ms. Da vis tes ti fi ed that he r f a the r w ou ld o ft e n c ome ho me drunk. On these occa sions, their m other and fathe r would g et i nto fig hts and their fathe r would end up be a tin g the ir

mothe r. Ms. Da vis de sc ri be d th e ir re la tio ns hip a s th e ir

mothe r “ pic kin g on ” the ir fathe r until he “would .

. . just lose it . . . .” She rec alled one inc ident when the pe titioner was two or three y ear s old. Their father ha d their mother pinned to the floor, bang ing he r hea d on the floor. Big clumps of their mother’ s hair lay on the floor a nd “ther e wa s a lot of blood.” The petitioner g ot a fly swatter an d tried to make the ir fathe r stop. The violenc e betwe en his pare nts often involved6

“g un play .” On one occa sion, their m other held a gun on their father and g ave him to the count of
t en “t o get ac ro s s t h e y ar d

. ” T h e gu n wa s n o t l o ad ed

. M s

. Da v i s s ai d t h at h erp ar en t s we n tt h ro u gh cy cles whe re the violence w ould erupt and the n “they ’d be all lovey -dovey .” When Ms. Davis g rew older, she would take the y oung er children and leave

. Ms. Davis stated that her paternal g randf

ather exhibi ted the same traits as her fathe r. Her g randf ather
, Chuck, was an alcoholic and beat his wife

. On one oc casion, he r g randf ather had cut a ll of her g randmother ’s clothing

.

Ms. Davis testified that the petitioner’s fathe r believe d he wa s not the petitioner’s biolog ical fathe r. B eca

use of this, he fa vored his o t h er s o n , J oel, treating Joel to pigg y back rides and other fathe rl y a c tiv iti e s. Whe n th e pe tit ion e r a sk e d fo r sim ila r tr e a tme nt, his fathe r p us he d h im a way . M s. Davis said that bec ause of his father ’s neglec t of hi m, the petitioner’s mother overc ompensated a nd

was ve ry loving towa

rd him.

Ms. Davis t es t i fi ed that the pe titioner’s fathe r died in 1974 and that his mot her r emar ried shortly there afte r. She said that her stepfathe r was “aw ful” and that only the petitioner and two other sib lin g s li ve d in the ho us e ho ld d ur ing thi s ti me . Sh e sa id h e r step fat her als o wa s a bu siv e to the ir mother.

Ms. Da vis te sti fi e d th a t th e pe tit ion e r’ s b ro the r, Jay , w a s dia g no se d with“ ma nic de pr e ssa nt” afte r he trie d to commit sui cide. She sa id another brother, J eff
, died of AI DS in J uly

1995, noting that th e pe tit ion e r a ndJef f w e re ve ry

c los e . M s. Da vis re c a lle d J e ff ha vin g a “ ve ry c a lmi ng e ff e c t. He wa s a wo nd e rf ul b ro the r. ” Jef

f w a s ma rrie d a ndha d c hil dr e n bu t ke pt h is d ise a se se c re t f ro m hi s family . She said no attorney ever approa ched Jeff be fore his death t o prese rve his testimony . No one intervie wed him despite the f act that Jeff wa s the one who t urned the petitioner in to the police afte r the victim wa s killed. Ms. Davis stated, “We also know that when Jon went to J eff ’s house, he didn’t re alize he had killed her , and his fra me of mind and what his demeanor — a ll that information, J eff

had first-ha nd knowledg e of, but we wer en’t — no one could ge t that information from Jeff . . . .”

Ms. Davis t estified that when the petitioner’s trial attorney talked with her the night be fore her te stimony , he instructed he r as to what “not” to say during her testimony

. She was a sked “not
to s a y a nythi ng ne g a tiv e abo ut the vic tim be c a us e

. . . sh e was alr eady a vic tim

. . . . ” Ms. Da vis testified that she could have provided trial counsel with photog raphs a nd videotape of the petitioner being a loving fathe r if they had asked. She added that trial counsel did not attempt to int ervie w any of the petiti oner’ s sisters. She did rec all that Gloria S hettles, an investig ator, c ontacted he r sisters about the petitioner’ s mental condit i o n but that no follow-up occ urre d. Shettles had provided the fa mil y wi th the dia g no sis “ int e rm itt e nt e xplos ive dis or de r. ” Ms. Da vis c on c lud e d th a t th is d ia g no sis described the petitioner “ to a T.”

Ms. Da vis a lso te sti fi e d c on c e rn ing a n in c ide nt occ ur ri ng du ri ng he r b ro the r’ s tria l. M s. Davis said that she observed people comforting and hugg ing members of the vi ctim’s family in the ha llw a y of the c ou rtho us e a ndthat sh e la te r r e a lize d o ne of the se pe op le wa s a

jur or . M s. Da vis stated she br oug ht this t o the attention of trial c ounsel. She furthe r testified that a ft er t he jury7

returne d the death sentence , trial counsel provided the f amily with a letter authored by

the petitioner relating the events of the night of the victim’s mur der a nd made c omments including, “ Well, so y ou don’t fee l so bad,” a nd “So y ou can se e that this was intentional.”

On cr oss-examination, Ms

. Da vis conce ded that most of the information reg arding the pe tit ion e r’ s mo the r a nd fathe r wa s pro vid e d to the jury du ri ng the pe na lty ph a se of the tr ia l. S he a lso

a dmi tte d th a t sh e , h e r s ist e r K a thy , h e r s ist e r S he ryl, andthe ir mot he r t e sti fi e d duri ng the pe na lty phase. She f

urther c oncede d that her brother had a his tory of angry outbursts and that he w as “w hat some people w ould call a hothea d.”

Shery l A rbog ast, another of the petitioner’s sisters, testified that she was the f ifth of seve n

c hil dr e n, wi th the pe tit ion e r b e ing the y ou ng e st. She sa id that sh e wa s th e sib lin g mos t in vo lve d in her br other’s c ase. F o r ex am p l e, she took notes from tele phone ca lls, provided him with hearing dates, a nd informed him of the attorney s who would be re prese nting him. S h e s t at ed that no one

c a me to s e e he r abo ut the pe tit ion e r’ s c a se be fo re the tr ia l. N otw ith sta nd ing , s he re pe a te dly tr ie d to
ta lk t o tria l c ou ns e l. Wh e n sh e fi na lly sp ok e wi th tr ia l c ou ns e l, the y tol d h e r that th e y we re no t a

ble to relea se any

information to her w ithout the petitioner’s permission.

Ms. Arbog ast testified that her testi m o ny

at the pena lty

phase of her br other’s tria l was limit ed to a

pproxi mately twenty -five lines of the transcript, including only limi t ed i nformation reg arding their childhood and the ir pare nts tumul tuous relationship. She added that prepa ration of the witnesses did not occ ur until “the nig ht befor e b y t elephone , and the a ctual fa ce- to-fac e took place 15 minutes prior to te stify ing.” Ms. Arbog ast stated that she ta lked with Gloria Shettles, who was to conduc t a mi t i gat i o n as sessment, by telephone one or two times. She said they discussed “intermittent explosi ve disea se,” w hich both ag ree d was something that neede d t o b e ex plored reg arding the petitioner’s be havior. Ms. Arbog ast, howeve r, h ad no knowledg e as to whe ther a ps y c hia tr i s tw a s h i r e d t o e v a l u a t e t h e p e t i t i o n e r

. R e g ar d i n g h e r b r o t h e r ’ s m e n t a l c o n d i t i o n , Ms. Arbog ast observe d

[a] quick temper , depre ssion, emotional labilit y [si c], cry ing, and not j u s tcr y i n g b u t l i k e ho u rs at a ti m e an d n o tb ei n g ab l e t o s t o p cr y i n g, jus t lo ss o f co ntr ol ove r y ou r em oti on s. He ha d n ot b e e n a ble to h old a job beca

use of that, and it was a ffe cting every thing in his life. He

. . . had we apons pulled on him, and the situation was be coming more and more volatile. I

was a fra id for his life and f or the situation that the y we re in, that it c ou ld on ly ha ve a ba d o utc ome . We wa nte d h im to g e t ou t of

the marria g e a ndleave th at situatio n. I wa nte d to ho sp ita lize him

. Ms. Arbog ast rela ted that the petitioner g rew up in L igonie r, Pennsy lvania. She said that she beg an re siding in the family home at eig ht y ear s of ag e and r emained the re until she lef t for colleg e. M s

. A r b o g a s t t e s ti f

ie d th a t h e r

p ar e n ts f o u g h t “ a ll th e ti me ” a n d th a t h e r f a th e r “ d r a n k e v e r y day .” She be lie ve d that hi s drin kin g wa s th e c a ta ly st t o th e fi g hti ng . T he ir fi g hti ng “ fr e qu e ntl y

le d to8

pushing a nd shoving, a nd on a number of occa sions ther e wer e just horrible knoc k-down dra g -out fig hts where bones would be broken and blood would be flying and hair wa s being ripped out by the roots . . . .” She said the c hildren would attempt to brea k up the fig ht to protec t the ir mother. She added that if there w as not a phy sical fig ht, her father would not speak to their mother, rather he would “turn his bac k on her” and “put a pillow ove r his he ad.” Ms. Arbog ast tried to g et her mother to l e a ve the ir

fathe r b ut h e r e ff

orts w e re un su c c e ssf

ul.

Ms. Ar bo g a st c or

ro bo rate d he r old e r sis te r’ s te sti mon y that the pe tit ion e r wa s c los e st to the ir brother Jeff, w ho died of AI DS in 1995. Ms. Arbog ast said that she informed trial counse l that J eff had AIDS and that they

neede d to interview him. Ms. Arbog ast trave led t o Texas and took her ailing brother to ha ve a statement not arized because no one had ever contac ted J eff

for a ny information on th e pet it io ner’s b e ha lf . Jef f’ s st a te me nt w a s ma de thr e e mon ths be fo re his de a th. Ms. Ar bo g a st state d th a t a

fe llo w i nmate of

the pe tit ion e r h a d a dv ise d th e m to ta ke the state me nt. Ms A rb og a st took it upon herself to take J eff ’s statement be cause she believed no one else could provide Jeff’ s side of the story . She stated that Jeff could have provided information as to instances whe n the vic tim ha d p oin te d a

g un a t th e pe tit ion e r andthat th e pe tit ion e r w a s p la nn ing to m ov e to T e xas t o be nea r Jeff and start over. She believed that only one side of the story was pre sented a t her brothe r’s trial.

Ms. Ar

bo g a st te sti fi e d that sh e ob se rv e d th e re la tio ns hip be tw e e n h e r b ro the r andthe vic tim

. She stated that the victim berated the petitioner constantly and said neg ative things about him. She said that she and othe r fa milymembers ha d o bserve d bite marks on the pe titioner which we re inflicted by

the victim and that she informed trial counse l of this. S h e d i d n o t b elieve that her br oth e r ha d, in a pr e me dit a te d man ne r, kil le d the vic tim

. She sa id tr ia l cou ns e l ne ve r i nq uir e d a s to the na tur e of th e vic tim

a ndthe pe tit ion e r’ s r e la tio ns hip . Sh e c or ro bo rate d th e te sti mon y

of Ms. Da vis re g ard ing the pe tit ion e r’ s h abit of dis c on ne c tin g te le ph on e lin e s in o rder to g a in the fu ll attention of the pe rson he wa s confr onting. She stated that if trial counsel had asked, she would have provided this information to him.

As to the petitioner’s a

ptitude as a father, Ms. Arbog ast desc rib e d him as “extremely

attentive and loving ” and “ very

well-ve rsed in w hat their likes and dislikes we re a nd how to fee d and cook for them.” She said the petitioner a lso impressed her with his a bilityto do therapy

with his daug hter who had c ere bral pa lsy . Ms. Arbog ast said trial counse l never asked he r any questions reg arding the pe t i t i o n e r ’ s ab i l i t i e s a s a f a t h e r d u r i n g t h e p e n a l t y p h a s e o f t h e tr i a l

. S h e s t a t e d s h e a tte mpt e d to draw tr i al counsel’s attention to the posit ive attributes of he r brother , but she felt they wer e not interested in lea

rning about the petitioner’ s backg round.

On cr oss-examination, Ms. Arboga st stated t hat from 1977 until 1994, she saw the petitioner

on ly abo ut t wi c e a

y e ar. She c on c e de d th a t she pro vi ded Gl oria She ttl e s w ith “ a ll this fa mil y history ” during her te lephone c onversation with her. She admitted that the petitioner ha d been interviewe d and evaluated by Western M ental Health and had been de termined c ompetent to stand trial. He ha d also bee n evaluated at Middle Tenne ssee He alth I nstitut e. S he admitted that she w as

a wa re the c ou rt

ha d ap po in ted a p sy c ho log ist to e va luate he r b ro the r’ s me nta l c on dit ion . M s.9

Arbog ast also conc eded that she neve r per sonally witnessed any bite marks on the pe titioner; rather
, her mother

had informe d her of

this fact. She stated tha t she was awa re that the victim had an or der of protec tion a g ainst the petitioner. She said that she had no know ledg e of a ny events oc curring on the nig ht of the murder

.

Kathy Hu g o, a no the r sis te r of the pe tit ion e r, state d that sh e te sti fi e d a t the tr ial . S he s a id
te sti mon y c on sis tin g of

abo ut thr e e a ndon e -h a lf pa g e s o f the tr a ns c ri pt r e la te d to the do me sti c abu se

oc c ur ri ng du ri ng the pe tit ion e r’ s chi ldh oo d. She sa id that tria l c ou ns e l ha d n ot c on ta c te d h e r u nti l 11:00 p.m. the ni g ht befor e she was to testify

. Counsel advised her t hat s he was not to say anything neg ative about the vic tim and to lim it her testimony to w hat it wa s like g rowing up in their home. Ms. Hug o said trial counse l asked he r whe ther she thoug ht the petitioner wa s a g ood fathe r. She stated that had she been a sk ed b y t ri al counsel, she could have put tog ether photogr aphs of the petitioner whe n he was a child and photogra phs of t he petiti oner a nd the victim. She said that during the three and one- half y ear s this case wa s pending , trial counsel ne ver c ontacted he r.

Clarenc e Stanfill, a friend of the pe titioner, testified that the petitioner wa s an excell ent fathe r. He said that the petitioner quit his job as a mec hanic to stay at home and t ake c are of the chil d wi t h ce re bral pa lsy . Mr. Stanfill said that he was ne ver c ontacted by trial counsel or

law

e nf or c e me nt o ff

ic e rs re g ard ing the mur de r. Joe He nry Sta nf ill
, a no the r frie ndof

the pe tit ion e r, a lso testified that the petitioner w as a g ood fathe r.

Valene For eman, a

neig hbor of the Ha l ls, testified that on the nig ht of the murder , the petitioner ca me to her home and g ave he r twenty -five dollar s to give to her father. He said he owe d her f ather money and he w ould give him the rest later

. Ms. Fore man adde d that the petitioner wa s the primary

car etake r of the c hildr en

. S h e s aid law e nforc ement off icer s never

contac ted her reg arding the victim’s murder. She rec alled that “[t]wo ladies came up the re on Sunday and aske d [her].” Paula Fore man, Vale ne’s sister, te stified that she would baby sit for the Halls “of f and on.” She stated that the pe titioner was nice to her a nd that he wa s a go o d fathe r. Pamela F orema n, a resident at 480 Pleasant Hill Drive in L exington, testified t hat t he petitioner w as her neig hbor and that sh e wo uldof

te n b aby sit fo r h im a ndhis wi fe . Sh e state d th a t th e pe tit ion e r w ou ld c are fo r h is children. She sa id she was ne ver que stioned by law enf orce ment officia ls or trial counsel r eg arding the nig ht of the murder

.

J ackie Brittain testified that he met the petitioner throug h a business ope ra t ed by his wife. Th is a c qu a int a nc e de ve lop e d in to a frie nd sh ip, a lth ou g h h e did no t kn ow th e vic tim ve ry we ll be c a us e t h e H a l l s h a d b e g u n h a v i n g m ar i t a l p r o b l e m s

. H e s a i d th e p e t i t i o n e r s t ar t e d s t a y ing wi th him be c a us e the vic tim

ha d a sk e d h im t o le a ve a ndha d a n o rd e r o f pr ote c tio n a g a ins t hi m. H e sa id that despite the orde r of pr otection, the victim would come over t o try to talk with the petit ioner. Mr. Brittain r elated that he had never seen the petitioner lose his temper. H e said that two da y s befor e the vict i m ’s murder, a

neig hbor of Mr. B rittain was involved in an a rg ument with his wife. The petitioner stopped this man from hitt i n g h i s wife, stating “You may have a license, but that don’t g ive y ou the re ason t o beat her.” Mr. Brittain further testified t hat the petitioner w as a g ood fathe r. The pe titioner, being an auto mec hanic, would f ix Mr. B rittain’s ca

r without co m p en s at ion. Mr.10

Brittain ex plained that the s tate had subpoenae d him to testify at t he petiti oner’ s trial. Although he responde d to the subpoena, the state neve r ca lled Mr. B rittain to testify . He sa id the petitioner’s trial counsel spoke w ith him at the courthouse.

On cr oss-examination, Mr. B rittain stated that he provided law enfor ceme nt of fice rs with a statement soon after the murder. He admitted that he tol d members of the TB I that the petitioner ha d made threats to hurt the vic tim. On redirec t examination, M r. B rittain stated that the thre ats wer e made while “

joking a round.”

Da rl e ne B ri tta in, Jac kie B ri tta in’ s wi fe
, te sti fi e d that sh e ne ve r sa w the pe tit ion e r ang ry wi th any body . She said that the victim treate d the petitioner “ [l ]i ke shit. She said the victim was extremely commanding , demanding and abusive to him.” Ms. Brittain saw the victim hit and kick the petitioner. She said, “ [The victim] was c onstantly bitching at him. . . . She would downgr ade him, like he wasn’t worth anything, that he couldn’t do anything right.” She said that the petitioner would take it for a

long time, some times g etting mad and other times ignoring it. She corrobor ated her husba nd’s testimony that the victim attempted to contac t the petitioner while the or der of protec tion wa s in pla ce. Ms. B rittain stated that trial counsel never asked her an yq u es t i ons reg arding the victim’s trea tment of the petitioner and his r eac tion to it. She stated that the petitioner

was a g ood fathe r.

On cros s-e x ami nat io n, Ms

. Brit tai n was qu est io ned regardi ng a st ate men t s he m ade t o T BI Ag e nt B ri a n B yrdthat “ [the pe tit ion e r] w a s g oin g to g ri ndhis wi fe up int o h a mbu rg e r m e a t.” Ms. B r it ta in h a d n o r e c o ll e c ti o n o f th is s tate me n t. M s

. B r it tain d id r e c a ll th a t th e p e ti ti o n er’ s trial

c ou ns e l in fo rm e d h e r tha t th e y wo uld no t ca ll he r a s a wi tne ss b e c a us e of

the “ ha mbu rg e r” state me nt. She said that trial counse l would not consider the f act that she denied making this statement.

Ma rt in E sk e w, the vic tim ’s br oth e r- in- la w, te sti fi e d tha t th e pe tit ion e r w a s a “ [s]po ile d b rat, self-a bsorbed, only

him.” Mr. Eskew sa id that the victim and the petitioner foug ht a l ot. He a dded that the petitioner drank a lot. He sa id that he was ne ver c ontacted by trial counsel.

Ma rg ie Di a na Pe ars on te sti fi e d th a t, o n July 29 , 1 99 4, sh e wa s a t a

ba r andthat sh e ba

re ly

rec alled drinking with t h e p et i t i o n er. She testified that she could not re member w hether the pe tit ion e r h a d c omm e nte d a bo ut p la ns to kill his wi fe . A lic e Jo Pe ars on tes ti fi e d th a t sh e ba re ly

re c og nize d th e pe tit ion e r at tria l, a lth ou g h s he re c a lle d b e ing a t a ba r andha vin g so me drink s w ith him. She did not recall him making statements that he intende d to kill hi s wife.

Clay May o, al o n g w ith Je s s e F o r d
, r e p r e s e n te d th e p e ti ti o n e r a t t r ia l. M r

. M a y o w as

app oin te d “ se c on d c ha ir ” c ou ns e l, a ndMr . F or d w a s a pp oint ed lea d c ou ns e l in la te 19 95 or e arl y 1996. As part of prepa

ration for the trial, Mr. May o and Mr. F ord had a cce ss to a court-a ppointed investigator, a mitigation investig ator, a fac t inve stigator, and a jury consultant. Mr. May o testified
t h at i f a witness needed to be interviewed, c ounsel would instruct an investig ator to conduc t the interview.11

Mr. May o testified that he wa s awa re of the importance of deve l o p ing a strong mitigation defe nse during the pena lty phase of a capital trial. I n this reg ard, he said he spoke w ith a lot of the pe tit ion e r’s fam ily

me mbe rs on the te le ph on e . H e re c a lle d th a t ma ny of the pe tit ion e r’ s f

a mil y

me mbe rs re sid e d o ut o f s ta te a nd that so me we re int e re ste d in he lpi ng wh ile oth e rs we re a lot le ss interested. Mr

. May o said that not only did he talk with me mbers of the petitioner’s f amily but that Gloria Shettles, the mitigation ex pert, ha d interviewe d family members. He re called the death of J eff Hall and the pr oblem with introducing his statement. He spe cifica lly rec alled that the pe titioner was

conce rned a

bout his brother’s st at ement and wanted it pre sented. Mr. May o could not rec all any the ory or ta c tic dis c us se d to int ro du c e the state me nt, a lth ou g h h e didre c a ll d isc us sin g the iss ue wi th Mr. For d.

Mr. May o testified that they had specific conce rns over tria l strateg y . Voluntary intox ication

was seriouslyconsidere d as a de fense to nullifythe intent on first deg ree murder. He sa id that the petitioner wa nted them to arg ue self- defe nse. Mr. May o said he be lieved th at a theoryof selfdefe nse would have alienate d and inflamed the jury . The primary theory was that the murde r wa s

a sec ond deg ree murder. Howeve r, ce rtain fa cts prese nted problems, including the cut telephone wires, the multi ple wounds, t he lac k of injury to the petitioner, and the evidenc e that he ha d drag g ed the victim from the house to the swimming pool and drowne d her.

Mr. May o testified that the petitioner did not wa nt an insanity plea. In any

event, he spoke wi th D r. L y n Z a g e r, the c ou rt -a pp oin te d p sy c ho log ist , w ho “ ma de it v e ry c le ar that .

. . [an ins a nit y de fe ns e ] w a s no t su pp orte d

. . . by he r int e rv ie ws wi th Mr

. Ha ll. ” Mr

. Ma y o state d that he wou ld have pur sued an insanity

defe nse if supported by the proof, r eg ardle ss of the petitioner’ s wishes, but that no evidenc e existed to support such a def ense. Mr . May o said he did not believe the petitioner was insane

. Although Mr . May o ag ree d that the ac t of disconn ecting the telephone wires g ave the imp re ssi on of

pr e pa ratio n, he didno t be lie ve that this ac t alo ne e sta bli sh e d p re me dit a tio n. He sa id that a lth o u g h tria l c o u n s e l w a s a w ar e o f th e p e ti ti o n e r ’ s p a s t b e h a v io r o f d is c o n n e c ti n g te lephone lines, they

believed this beha vior would not chang e thing s signific antly . Mr. May o added that the petiti o n e r w o u ld h a v e h a d to te s ti f y c o n c e r n in g h is p a s t b e h a v io r b u t th a t h is “ d e me anor in the
courtroom wa s v er y b ad
, very scary , and having him on the stand, strateg ically , would have be en horrible.” He c oncede d, howeve r, that post-convic t i o n counsel may have be en cor

rec t that the evidenc e mig ht have take n away the “sting ” of the wires be ing disc onnecte d. Mr. May o stated that

su c h in fo rm a tio n “ wo uldtake so me sti ng ou t if y ou c ou ld p ro du c e so me on e that sa id h e ’ddo ne thi s be fo re to g e t th e a tte nti on of the pe rs on that wa s, fo r e xamp le
, ins ide the ho us e .” Ho we ve r, he sa id that su c h a n a c t als o pa int e d a pic tur e of so me on e wh o is on the e dg e

. Mr . May o sta te d tha t he c ou ld

no t c on c lud e ho w this inf or ma tio n w ou ld h a ve be e n h e lpful. Al tho ug h h e a g re e d w ith po stconviction counse l that the act of cutting the telephone wires looked sinister, he stated that it looked sinister whether

or not any one wa s hurt.

Simi larly
, Mr. May o was que stioned why evidenc e of a cts of violence by the victim toward the petitioner wa s not introduced. He had trouble rec alling the specific rea sons, but he indicated that12

he believe d her a ctions were not se vere enoug h to imply that the petitioner’s c onduct was r easona ble. Mr. May o said he be lieved there was no chanc e of moving past second de g ree murder and g etting

vo lun tary ma ns laug hte r. He no te d th a t th e pe tit ion e r w ou ld h a ve be e n th e on ly wi tne ss t o e sta

bli sh any element of

provocation. Rega

rding the pos sibili ty of t he petiti oner testify ing, Mr. May o said that

“ it w ou ld h a ve be e n a

c a ta str op he

. . . n ot j us t c ro ss- e xami natio n b ut h is d e me a no r, his a tti tud e , h is lack of remorse .” Mr. Ma y o conce ded that information provided by Dr. Z ag er indicated re morse. He a lso reca lled that the petitioner maintained that he ne ver intende d to kill t he victim. He sa id that by the t ime the case got to trial, the petit ioner “was on the verg e of a violent outburst all the time, and had a couple a nd was take n out of the courtroom in shackles, ha d g uards posted behind us.” He described the petitioner as “a five-y ear -old brat in an a dult’s body that . . . wanted to r

un the show from start to finish and . . . didn’t ex hibit any rea l remorse .” Mr. May o added that the petitioner wa s “nar cissistic in the extreme.” He also said that althoug h he found the petitioner unplea sant to work with, his opini on did not affe ct the leve l of his repre sentation.

Mr. May o rec alled Gloria S h et t l es mentioning I ntermittent Ex plosive Disorder in a 1995 report. He could not re call, howe ver, doing any additional rese arc h or re adin g reg arding the disorder

. He a lso could not rec all whether trial counsel sought t he services of a psy chiatrist, but he adde d that althoug h a psy chiatrist would pre scribe medication, a psy cholog ist would “dea l with the re al issues.”

Reg arding the petitioner’s g ood qualities as a f ather and person, Mr. May o testified that he

was sure that such evide nce was pre sented. Mr. May o rec alled that they did not introduce any p h o t o gra p h s o f t h e p et i t i o n er , b u th e w as u n ab l e t o re m em b er t h e ra t i o n al e. He s t at ed t h at al t h o u gh family members c ould ha ve testified that they knew of no rea son to believe that the vic tim’s murder was pre meditated, ther e wa s conce rn about que stioning by the p rosec ution on cross-examination. Mr . May o sta te d tha t an of fe r of pr oo f wa s mad e re g ard ing Jef f Ha ll’ s sta te me nts to M s. Ar bo g a st. Mr. Hall died in J u l y 1 9 9 5
, befor e Mr. Ma y o was a ppointed. Mr. May o ag ree d that an attorne y ’s failure to attempt to preser ve the testimony of a dying w itness w ould be
, at least, c lose to neg lige nce if the t estimony wer e favorable to his client. He qua lified this statement, howeve r, by stating tha t prese rva ti o n w o u ldn o t h a v e b e e n n e c e s s ar y if th e f a v o r ab le in f

o r mati o n w e r e me r e ly

o p in io n. Notwithstandin g , M r

. M ay o s ta te d th at M r. Ha ll should have bee n interviewe d even w ithout knowing what the information he possessed.

Mr. May o testified that t h er e were many instances of

violent behavior by

the petitioner toward the victim that the state did not use bec ause it had a g ood case . He pr ovided examples such as the pe titioner running his ve hicle into the victim’s c ar while the children wer e inside of it. Mr. May o stated that if trial c ounsel would have inquired as to the pe titioner’s g ood traits, the p r o s e c u t i o n w o u l d h a v e q u e s t i o n e d t h e w i t n e s s e s a s t o t h e b a d a c t s o f t h e p e t i t i o n e r

. M r

. M a yo could not rec all why

opening and closing arg uments and the hearing on the m otion for a chang e of

venue w ere not transcribed for pur poses of c reating a n appellate rec ord.

On cr oss-examination, Mr. May o testified that during his prepar ati o no f th e ca se, no evide nce of pr ov oc a tio n w a s re ve a le d. He state d tha t L arry Sou tha rd , Dir e c tor of F or e ns ic Se rv ic e s a t Mi dd le Tenne ssee Me ntal Hea lth I nstitut e, eva luated the pe titioner, fou n d h i m t o be compe tent, and13

determined that an ins an i t y d efe nse could not be supported. Mr. May o stated that the fa ct that an insanity defe nse could not be supported was discusse d with the petitioner. Other d efe nses wer e d i s c u s s e d w i t h t h e p e t i t i o n e r , i n c l u d i n g i n t o x i c a t i o n a n d ar g u i n g f o r a l e s s e r o f f e n s e

. M r

. M a yo could not rec all one witness who could have testified a bout “g ood things a

bout [ the petitioner] without allowing the sta te to g et into prior violent acts.” Additi o n al l y , the petitioner’s c hildren testified during the trial. As part of cross- examination, the c hildren wer e asked about the petitioner’s
tr e a tme nt o f the m. M r. Ma y o c ou ld n ot thin k o f any mot ion s th e y

c ou ld h a ve fi le d o r any

wi tne ss they could h ave called that c ould have made a diffe renc e. He admitted that he had a cce ss to the
state ’s fi le a ndthat no su rp ri se s w e re int ro du c e d at tria l. H e sa id h e wa s only su rp ri se d th a t th e state did not introduce more e vidence , including statements made by the petitioner.

Jess e F or d, le a d c ou ns e l app oin te d to re pr e se nt the pe tit ion e r, te sti fi e d th a t th is w a s h is f ir st capital c ase. Mr . For d said that he a nd Mr. May o ag ree d that he would handle the g uilt phase and Mr. May o would handle the mitig ation work. Mr. Ford rec alled speaking to one of the pe titioner’s sisters, Shery l A rbog ast, once or twice. He stated that Mr. May o talked to her a lot beca use that wa s more of the mitigation part of the case

. Mr. For d could not rec all speaking to other fa milymembers in prepa ration of the c ase, a lthough he stated that he “ may have.”

Mr. For d testified that J eff Hall was a lrea dy

dece ased at the time of his appointment and that his te s ti mo n y h a d n o t b e e n p r e s e r v e d in a n y “ f o r s u r e ” a d mi s s ib le f

o r m. M r

. F o r d said that if a witness had something useful, a deposition w ould ha ve been war rante d. He said that M r. Ha ll’s unavailability

at trial wa s not predictable beca use one’ s time of death is unce rtain.

Reg ar d in g th e c h an g eo f

v e n u e , M r

. F o r d

r e called r eading newspa

per a rticles and de termining that a cha ng e of ve nue wa s “absolutely nece ssary .” He said that this matter was discussed w ith the petitioner at length and that a mot ion was filed with the petit ioner’s pe rmission. Mr. Ford state d that J udg e L aF on g rante d the cha ng e without a hearing

. Mr. Ford only became awa

re of the petitioner’s dissatisfaction with the cha ng e of ve nue af ter the f act.

Mr. For d testified that on e o f t he def ense the ories bef

ore tria l was voluntary

intox ication. The petitioner had consumed five or six beer s befor e g oing to the victim’s r esidenc e. M r. For d attempted to find witness es wh o k n ew that the petitioner ha d a drinking problem. He said the petitioner re fused to testify

. Ba sed on these fac tors, he dec ided that the def ense w as unable to pursue thi s a ve nu e a t tria l. Mr

. F or d sa id that, ult imate ly
, the de fe ns e ho pe d th a t th e “ jury wo uldsh ow so me

merc y .” He said the def

ense re l i ed u p on a theory that the petitioner wa s acting in an impulsive

manner

.

Mr. For d testified that he believed the possibili ty of re ducing the cha

rg e to manslaug hter wa s sli m be c a us e the pe tit ion e r re fu se d to te sti fy

. He state d th a t a jury wa nte d to he ar f

ro m a de fe nd a nt. Mr. For d discussed with the petitioner the ne ed for him to testify
, but the petit ioner re fused to take the s tand. Ag ree ing that proof of the vi ctim’s acts of violence ag ainst the petitioner would ha ve bee n evidenc e of pr ovocation, Mr. F ord explained that the only reliable source of this ty

pe of te stimony was fr om the petitioner.14

Mr. For d testified that the petitioner provided counsel with a list of people he wanted found. Mr . F or d s a id tha t th e y

so ug ht e ve ry

a va ila ble pe rs on bu t th a t he de ter min e d th a t th e wi tne sse s’ testimony would not be helpful. Mr. F ord stated that, f or instance , the B rittains’ statements included
t h e petitioner’s thre at that “he was g oing to g rind [the victim] up as hamburg er me at.” Mr. F ord

rec alled that the pe t i t i oner ma de this statement to sever al diffe rent pe ople, and he believed the
state me nt p re c lud e d a ny

op po rtun ity

to c a ll the se pe op le a s witn e sse s. Mr . Fo rda dmi tte d th a t he did

n o tt a l k w i t h K a t h y H u g o a n d D e b b i e D a v i s

. H e a c k n o w l e d g e d t h a t t h e p e t i t i o n e r ’ s s i s t e r , S h e r yl Arbog ast, wante d to testify
, but he said Ms. Arbog ast had no contac t with the petitioner for two y ear s befor e the murde r. On c ross-ex am i n at ion, Mr. For d stated that “f rom what I

understood, [the petitioner’s sisters] didn’t have a very g ood rela tionship with Mr. Hall, that they wer en’t rea lly a part of his life until after

he did what he did, and then they became . . . more a

part of his life . . . .”

Evaluating the evidenc e esta blishing pre meditation, Mr . For d rec alled that the pe titioner had

c u tt h e t e l e p h o n e l i n e a n d t h a t , a t o n e p o i n t , o n e o f t h e c h i l d r e n w a s o n h i s b a c k t e l l i n g h i m“ D a d d y, please stop.” The pe titioner had seve ral opportunities to withdraw f rom what he was doing . Mr. For d disag ree d with post-conviction counsel’s a ssertion that ev idence of prior inc idents of disconnec ting tele phone lines without any harm being inflicted would have ne g ated pr emeditation. Mr . F or d s ta te d th a t th is e vid e nc e sh ow s th a t th e pe tit ion e r w a nts to c on tr ol s itu a tio ns a ndpla ns to do the same. H e said police reports from Carroll County had es t ab l i s h ed that the petitioner ha d previously

disconnec ted telephone lines.

M r. Fo rd testified that he was a war e of the report from Gloria Shettles mentioning I ntermittent Ex plosive Disorder. H e said that if a ny follow up was ne eded in this are a, he w as of the opinion th at Dr. Z ag er w ould have r ecommende d further evaluation. He said that Dr. Z ag er ha d

acc ess to all of defense counsel’s information but that Dr. Za g er did not indicate any need to pur sue I nte rm itt e nt E xplos ive Di so rd e r. Mr . Fo rd no te d tha t the pe tit ion e r wa s als o ev a luate d by the state psy chi a tris t. M r

. F o r d a c k n o w le d g e d th a t h e d idn o th in g to c o n v in c e th e ju r y th a t th e p e ti ti o ner suffe red f

rom I ntermittent Ex pl o s i v e Disorder. He added, thoug h, that they discussed the information re g arding the di sorder with the petit ioner who did not wa nt to pursue that def ense. Mr

. For d said that the petitioner did not believe he did anything wr ong by killing the victim.

Mr . F or d te sti fi e d th a t th e pe tit ion e r’ s c hil dr e n w e re c ro ss- e xami ne d d uring the g uil t ph a se as to whethe r the pe titioner was a g ood fathe r and provider. Mr. For d explained to the petitioner the dang ers involved in child testimony . He a cknowledg ed that ther e we re a lleg ations that the petitioner had abuse d the children. Mr. For d chose to limit c hara cter witnesses to a void ope ning any doors that would permit questioning c oncern i n g t h e claimed a buse. He added that the petitioner’s former

e mpl oy e r, Ra nd y

He lms , w a s c a lle d to te sti fy du ri ng the pe na lty

ph a se in an atte mpt

by de fen se

c ou ns e l to hu ma nize the pe tit ion e r. He sa id that Mr. He lms wa s sel e c te d be c a us e he wa s the mos t

cre dible witness with an unimpeac hable r eputation.

Mr . F or d te sti fi e d that the y kn e w the state ’s pr oo f andthat no su rp ri se s a ro se a t tria l. H e sa id he explained all of the e vidence to the petit ioner before trial. He sa id that the victim’s family wanted15

leniency and that the state offe red life without pa role. Howeve r, the pe titioner insist ed upon g oing to trial.

Dr. Pamela

Auble, a c linical neuropsy cholog ist, testified that she evaluated the petitioner at the re quest of post-convic tion counsel. The pur pose of the e valuation was to determine w hether any de fi c its or

pr ob le ms i n me mory

or thi nking e x is ted whi ch mi g ht b e du e to b rain i nju ry a ndto de te rm ine pe rs on a lit y

a nde mot ion a l f

un c tio nin g . D r. Au ble state d th a t he r e va luatio n p ro c e ss

c on sis ts o f thr e e are a s: (1 ) int e rv ie ws , ( 2) sta nd ard ize d te sti ng , a nd(3 ) a re vie w o f r e le va nt s oc ia l, le g a l, m e dic a l, p sy c ho log ic a l, a ndsc ho ol r e c or ds . Sh e sa id that in g a the ri ng inf orm ati on abo ut a client, it would be nece ssary to interview a ll imm ediate f amily members a nd that the fa ilure to do so would result in an incomplete soc ial history

.

Dr. Auble s t ated that she administered the f ollowing tests mea suring mental ability to the petitioner: the Wechsler

Adult I ntellige nce Sca le (a n I Q test), the Wechsler Memory Scale ( a test of one’s a bilityto learn ne w information), the Test of Memory Maling ering (a te st to evaluate w hether

o n e i s p u t t i n g f

o r t h a d e q u a t e e f

f o r to n t h e t e s tp r o c e d u r e )
, t h e H a l s t e a d R e i t a n B a t t e r y ( s i x te sts measuring mental flex i bility , executive func tioning or r easoning , attention, rig ht hemisphere functioning , conce ntratio n , lang uag e compr ehension, fine motor speed, spa tial rea soning a nd memory ), the De lis Kaplan Executive Func tioning Sy stem (a test to dete rm i n e t h e adequa cy of a person’ s frontal lobe f

unctioning, i.e ., thinking, re asoning , and one’ s ab i l i t yto inhibit response s), the B os ton Na min g Te st (a te st to de te rm ine la ng ua g e dy sf un c tio n) a ndthe Gr oo ve d Pe g bo ardTe st (a test to measure motor dexterity ). She also administered thre e tests of pe rsonality and emotional functioning , including the R orscha ch (tra ditional inkblot test to test personality sty le and functioning ), the Minnesota Multiphasic Persona lityI nventory (a te st to measure pe rsonality and emotional functioning ), and the I ncomplete Sentences Blank (a structure d interview of the client). I n exploring the pe titioner’s bac kg round, Dr. A uble re viewed

va r i o u s i n t e r v i e w s , b o t h o f [th e p e t i t i o n e r ] an d h i s f a m i l y , f r i e nd s, people he associate d with by April Hig uera , by

Tammy As k ew, by Glori a S h ett les. I

revie wed a

Mitigation Assessment done by Ann Cha rv a t, a su mma

ry of the te sti mon y

of Ly nn Z a g e r andJoe M ou nt,

rec ords from Middle Tennesse e Menta l Health Center , rec ords from the New born I ntensive Care Dischar g e Summary
, a summary of audiotapes of

the trial, the Te nnessee Depa rtment of Empl o y m ent Security Appea l Deci sion, the Tennesse e De partment of Corr ection pr og re ss n ote s, the re po rt of Dr . Ca ru so , Inmat e Grie va nc e F orms, materia l prepa

red by Mr. Hall re garding ineffe ctive assistanc e of

c ou ns e l a nda

g e ne a log y

c ha rt

.

Dr . A ub le te sti fi e d th a t sh e sp e nt ap pr oximate ly nin e ho ur s in te rv ie wi ng a nda dmi nis te ri ng te sts to the petitioner.AM ERI CAN PSY CHI AT RI C AS S’ N
, DI AGN O STI C AND S T AT I STI CAL M ANU AL OF M EN T AL 1

D IS O R D E R S (4 th e d . t e x t re v . 2 0 0 0 ).

16 Dr . A ub le su mma

ri zedhe r f

ind ing s r e la tiv e to the pe tit ion e r a s f oll ow s:

The re sults of the neuropsy cholog ical testing wer e esse ntially normal in most areas. The re w as no evide nce of malinge ring or faking. The

ne uo ro ps y c ho log ic a l te sti ng didind ica te so me dif fi c ult ie s w ith attention and re sponse spee d, something that I

– i n my opinion was

c on sis te nt w ith a tte nti on de fi c it d iso rd e r, mos t l i k e l y

. T h epe rs on a lit y te sti ng re ve a led a pe rs on wh o d oe s h a ve dif fi c ult y c on tr oll ing his emotions in emotional sit uations. His responses are likely to be unmodulated. [ T he petitioner] has a low se lf-este em. Ther e wa s evidenc e of internal ang er. H e may h av e trouble under standing pe op le a nd pe rc e ivi ng the m in a c c ur a te way s. At the tim e I sa w h im he did not appea

r clinica lly

depre ssed, thoug h there was e vidence of some tension from his curr ent situation.

Dr. Auble further stated t hat a low serotonin l evel would be consistent with I ntermittent Ex plosive Disorder

.

On cr oss-examinat i o n , Dr. Auble was dire cted to a sta tement in The Dia g nostic and Sta t i s t i cal Ma nual, Volume 4 (D SM4), providing that “the diag nosis of I ntermittent Ex plosive 1 Disorder i s m ade only

afte r other me ntal disorders that mig ht acc ount for episode s of ag g ressive behavior have be en rule d out and it includes attention defic it disorder i n there .” She then qua lified he r p ri or te sti mon y , s ta tin g that he r t e sti ng wa s n ot d e fi nit ive a s to whe the r the pe tit ion e r d id o r d id not have attention deficit disorder. She added that her opinion was not that attention def icit disorder

wa s a c c ou nti ng fo r the pe tit ion e r’ s epi so de s of ag g re ssi ve be ha vio r if he didha ve a tte nti on de fi c it disorder.

Dr. Auble conce ded that her conclusions about the petitioner i ncluded that “at the time of the crime the re w as evide nce of I ntermittent Ex plo s ive Disorder , adjustment disorder, major depre ssion, alcohol depe ndence , and ca nnabis abuse.” She admitted that the DSM4 require d that alcohol or dr ug abuse be ruled out as possible ca uses of a ng er be fore diag nosing I ntermittent Ex plosive Disorder. She acknow ledg ed that on the date of t he murder, the petitioner w as both intox icated and under the influence of marijuana . She conce ded that the petitioner had visited se vera l bars on the nig ht of the victim’s murder a nd that he wa s ang ry when he left the ba

rs. I n Dr. Auble ’s opinion, however , the

us e of a lc oh ol a nddr

ug s me rel y

e xac e rb a te d th e I nte rm itt e nt E xplos ive Di so rd e r. Dr . A ub le admitted, though, that her e valuation did not eliminate the fa ct that the petitioner’ s ag gre s sive episodes we re c aused f

rom his adjustment disorder.17

At the petitioner’s tria l, Dr. Z ag er te stified that the petit i o n er wa s acting as a r esult of an impulse broug ht on by

his a ng er. Dr. Auble ag ree d with the prosec ution’s summation of Dr. Z ag er’ s

c on c lus ion a s

his mental disease of I ntermittent Ex plosive Disorder and adjustment disorder r esulted in a ra g e re action in whic h [t he petitioner] was unable to pre meditate this cri m e an d in which his actions wer e not kn ow ing in tha t he wa s u na wa re that hi s c on du c t w a s r e a so na bly

certain to cause his wife’s de ath.

Dr. Auble conce ded that her conclusion is basica lly

the same c onclusion rea ched by Dr. Z ag er. She further conce ded that the diagnosis of I ntermittent Ex plosive Disorder is not appr opriate w hen the person is ac ting in a pur

poseful manne r. She stated that the pe t i t i o n er’ s purpose of g oing to the victim’s home the nig ht of the murder was to r econc ile with his wife. She maintained, howe ver, that this purpose is not that envisioned by the DSM4.

Dr. Ke ith Caruso, a for ensic a nd gen era l psy chiatrist, testified re g arding the cor relation betwee n low levels of se rotonin in the brain an d v iolent acts. He stated that re cent r esea rch completed by Dr. Emil Cocca ro in 2001 reve aled that a

biologica l marker

for Intermittent Ex plosive Disorder is low levels of ser otonin. This information is not contained in the D S M 4
, b ec au s e the DSM4 was written in 1994, bef ore this re sear ch was completed. Dr. Caruso said that a report from Dr

. Ron a ld Sa lom on a t Va nd e rb ilt ind ic a te d that the pe tit ion e r’ s le ve l of the ma jor me tab ol it e in serotonin, CS F 5

- H I A A
, w a s 7 0
, a le v e l in th e b o tt o m f iv e p e r c e n t. H e s a id th e n o r ma l le v el of

se r o to n in is 1 3 9

. 1 a n d th a t th e p e ti ti o n e r ’ s le v e l o f s e r o to n in is c o n s is te n t w ith a p e r son having I ntermittent Ex plosive Disorder.

Dr . Ca ru so c on fi rm e d D r. Au ble ’s state m e n t th a t a so c ia l hi sto ry

of a c lie nt w ou ld n e c e ssa

ri ly be comprised of more than talking with that client. He state d that interviewing family , friends, a nd past employ ers wa s very

important. I n evaluating the pe titioner, Dr. Caruso te stified that h e wa s provided:

a video. Also, I had a transcript of S tate versus J on Hall from 1997.

Th e e xc e rp ts th a t I ’ v e r e a d in c lu d e d mo ti o n s , te s ti mo n y f r o m Jerry Bing ham, testimony

from B rian B yrd, testimony from Chris Dutton, Stephanie L ambert, Cy nthia L ambert, J ennife r L ambert, the medical examiner, Dr. O. C. Smit h, Dr. Z ag er. L et’s see , psy cholog ist J oe Mo un t, R a nd y

He lms , De bb ie Da vis , Ka thy Hu g o, Che ryl A rb og a st, Carol Alexander. The re w as also mitigation informati o n fr om Ann Charvat, corr espondenc e with another attorney , Edwar d Martindale, reg arding a civil suit. There was some media clippings. The re w as Jess ic a Ha ll’ s me dic a l r e c or ds . T he re we re TD OC me nta l he a lth

re c ords fo r the de fe nd a nt. Th e re we re re c or ds fr om M idd le Te nn e sse e Me nta l H e a lth fr om, I be lie ve , a

c omp e te nc y

a ndsa nit y18 e va luatio n th at wer e do ne in ‘ 95 , d isc ipl ina ry re c or ds fr om T DO C. There wer e memos from Glori[a] Shettles w ho had been a mitigation specia list previouslyin this case and inter views that s h e had done wi th v ari ou s f

a mil y me mbe rs . A tim e lin e done b y Da ne se B a nk s. Numerous inter views by

Ms. April Hig uera

with the defe ndant over a span o f

. . . two y ear s. I nterview s by Ms. Higue ra of

family and friends. A g enea logy

memo that Ms. H igue ra had provide d. Writt en

ma te ri a ls tha t Ms . A rb og a st h a d p r o v i d e d

. M or e mit ig a tio n ti me lin e s. Memos about the trial audiotapes. I nterview of Judge Whit L aF on by Ms. Higue ra a nd other witnesses. Dr. Auble ’s neur opsy ch eva l and Dr . Sa lom a n’ s r e po rt

.

Dr. Car uso also interviewe d the petitioner on J anuary 28, 2002, for thre e and one -half hour s and on Marc h 19, 2002, for f

our hours.

After revie wing the i nformation and interviewing the petitioner, Dr . Caruso formulated the fo llo wi ng imp re ssi on s:

I think there wa s a lot of evidenc e of char acte r pathology which one would expect in light of the dy sfunctional home tha t he g rew up in, but on top of that there are also – and there also seeme d to be a g reat de g re e of su bs ta nc e abu se , b oth in [the pe tit ion e r] a nda lso in f a mil y

me mbe rs . There was a

lot of ma jor de pr e ssi on in f

a mil y me mbe rs

. [The petitioner] had a hi story of depression.

. . . I felt t hat it wasn’t jus t a n a dju stm e nt d iso rd e r i n th a t he se e me d to re sp on d to so me a nti

depre ssant medication that he’d rece ived. I believe ba ck in 1995 he

wa s o n Imip ra min e a nd
, a lth ou g h he c ou ldn ’t tol e rate the sid e a ff e c ts, had done s o m ewhat better a nd reported fe eling better on the medication. I n addition, there w as a history of numerous e pisodes of [t he petitioner] explodi ng into viole n ce ei ther whe re he assaulted people or wher e he de stroy ed prope rty , an d I became suspicious on that basis of I ntermittent Ex plosive Disorder a s it seemed that ther e

wer e times that that could not be a ccounte d for by intox ication alone,

a nde sse nti a lly

– a lso I have sp ok en to y ou abo ut s ome

. . . o f h is

ou tbu rs ts i n c ou rt , I

be lie ve , in a prior tr ia l. An d, a g a in, the re re a lly

se e me d to be a

lot of dif fi c ult y c on tr oll in g h is, y ou kn ow , h is be ha vio r –

c on tr oll ing his e mot ion s. An d, a lso , c on sis te nt w ith that, that th e on ly

thi ng that se e me d to ha ve ch anged bet we e n th os e explos ions and then being more c onciliatory i n terms of spea king with y ou that he . . . only

time had elapse d.19

Dr. C aru s o a d d e d th a t th e r e w a s a “ v e r y h ig h c o

- o c c u rr e n c e ” o f “ b e in g a n a lc o h o li c a n d having I nte rm itt e nt E xplos ive Di so rd e r, ” in that a lc oh ol r e du c e s impu lse c on tr ol andthat pe rs on s w ith I ntermittent Ex plosive Disorder ha ve poor impulse contr ol.

Dr. Car uso testified that a person with I ntermittent Ex plosive Disorder rea liz es t hat his act of violence is “not a g ood thing to do” but is without the ca pacity to stop him self. He s t at ed that with reg ard to pre meditation, a per son with I ntermittent Ex plosive Disorder is una ble to achie ve the

me nta l st a te re qu ir e d f

or pr e me dit a tio n re g ard ing the abs e nc e of pa ssi on or

e xcit e me nt. Dr . Ca

ru so conclude d that “bec ause of I ntermittent Ex plosive Disorder, ma jor depre ssion, and intox ication, but . . . mostlyI ntermittent Ex plosive Disorder . . . that [ the petition er ] wa s u n ab l e

. . . to achieve the mental state of the absenc e of pa ssion and excitement.”

Dr. Car uso testified that the petitioner met the c riteria f or a numbe r of diag noses, stating

I felt that at the time of the offe nse he had Maj o r D ep ression, I ntermittent Ex pl o s i ve Disorde r. I g et that he wa s dependa nt on al co h o l, so he had a lcohol depende nce. H e had a depende nce on marijuana

. Cannabis depende nce. I felt that he a lso had a history of poly substance a

buse whe re he abused a lot of ot her substanc es, such as L SD and Valium and other drug s, and I

also felt t hat at the time of the offe nse there was e vidence to indicate that he w as suffe ring from alcohol intox ication as we ll. I felt also t h at h e had met criteria for

se ve ral pe rs on a lit y

dis or de rs , in c lud ing Na rc iss ist ic Pe rs on a lit y Di so rd e r, B or de rl ine Pe rs on a lit y Di so rd e r andAn tis oc ia l Pe rs on a lit y Disorder . I

didn’t fee l that there was a medical c ondition im pacting up on his me nta l st a te oth e r tha n the on e s I ’v e sp e c if ie d h e re in t e rm s of the de pression and the I ntermittent Ex plosive Disorder, e t ceter a. I also felt that ther e we re a number of stre ssors at the time of the offe nse or that we list on Axi s I V, including his fear s of aba ndonment by his wife at the time of

the offe nse, his daug hter’s disabilit y and her specia l medical nee ds, the financ ial stressors re lated t o his earlier

un e mpl oy me nt. I n a dd iti on , h is b ro the r’ s d y ing of AIDS a t that ti me also wer e stressor s operative at the time and, I think, at this time and

no t a t th a t ti me we ha d th e str e sso rs rel ated t o le g a l c ha rg e s. I fe lt th a t a t th e ti me o f th e o f f e n s e h e h a d a g lo b a l a s sessment of functioning score of about 40. More r ece ntly it’s about 55, and that’s

on a sc a le of 10 0 w he re so me on e wi th a sc a le of 31

. . . to 40 wo uld be seriouslyimpaired.

Dr . Ca ru so c on c lud e d th a t th e te c hn olo g y a ndte sts us e d in e va luatin g the pe tit ion e r w e re a va ila ble in 1995, 1996, and 1997.20

On c ro ss- e xami na tio n, Dr . Ca ru so a g re e d th a t th e re se arc h r e su lts lin kin g low se ro ton in levels and Intermittent Ex plosive Disorder w as not ava ilable in 1995. He a cknowledged that the

re su lts we re pr e se nte d f

ir st at the Am e ri c a n Psy c hiatr ic As so c ia tio n Conv e nti on in 2 00 1. He a lso ag ree d that this information is not contained in the curr ent DSM4. Dr. Caruso f urther c oncede d that the petitioner’s a ct of disconnec ting the telephone lines for whateve r purpose established that he w as capa ble of “ some deg ree of pre planning .”

The pe titioner testified reg arding the attorne y s that had bee n appointed to re prese nt him at
tr ia l:

J ack H inson and Fr ank Stanfill wer e ap p o inted. I hear d that Fr ank Stanfill never ha d an y

in court experienc e at the time, a nd that J ack H i n s o n w a s t h e P u b l i c D e f e n d e r a t t h e t i m e , b u t h e w a s g o i n g int o private pr actice and Frank Stanfill was just taking over that positi on.

. . . .
Well, the nex t time I

went into court I

went in for m y Gr an d J ury appea ranc e and the y

asked me did I

have an attorney

and I had not spoken to my

attorney and the pe ople at the courthouse told me that J ack H inson was no l ong er with the Public Defe nder’ s Offic e. So the J udg e aske d me, y ou know, “Do y ou plead g uiltyor not g uilty ,” and

. . . .
[ a] ft erFr an k

S t an fi l l an d J ac k

Hi n s o n I we n tt h ro u gh Ge o rge Go o ge and Stephen Spra cher

.

. . . .

And af ter that I had Carthe l Smi th and Mike Mosier.

. . . .

And then I

went throug h my t ri al at torney s, J esse F ord and Clayton May o.

. . . .

An d th e n I

ha d o n di rect app e a l . . . M ark Do naho e a ndSc ott Pe tr ow sk i.21

The pe titioner testified that his br other, J eff Hall, had r esided in B ell County , Texas, and had been suf fering f rom AI DS since t he early 1990’s. He said he knew in Aug ust 1994 that his brother was sick. He said he informed his attorney s that they neede d to interview J eff beca use of the da ng er of him dy ing be fore trial. He c ould not reca ll, howe ver, w hether he told them that J eff

was dy ing

o f AIDS. The petitioner did assert that he was a bsolutely sure that he made Ge org e Goog e and Ste ve n Sp ra c he r a wa

re of it b e fo re his br ot her di e d a nd“ pr e tty su re ” that he ma de F rank Sta nf ill

awa re of it. He sa id he had to g o to trial without the benefit of a statement by

J eff

. The pe titioner testified that he neither waived his rig ht to a preliminary hearing nor asserted
t h at he wa nted to chang e venue to Madison County

. Wh e n q u e s ti o n e d a s to th e p o s s ibilit yof testi fy i n g, h e said his attorney s conducte d a mock e x amination of him and told him they did not b el i ev e he should testify . The pe titioner asserte d that he wa nted to testify befor e a H ender son Countyjury . He a dded, howe ver, tha t he also “ar g u[ed] an issue about the fa ct that the fla g had a g old fring e and an eag le on it, and I told ‘ em that I felt that it was a . . . re prese ntative of a war court . . . .”

The petiti oner testified that attorney s For d and May o wer e appointed on Fe bruary 9, 1996, and that the tria l beg an on F ebrua ry 3, 1997. He complained that c ounsel visited him on onlytwo

occa sions while he was in Nashville. He said he was transfe rre d to Madison Countyin Dece mber 1996. Whil e conf

ined in Madison County , the petitioner wa s visite d s ep ar ately by counsel approximately

five times. He c omp la ine d that his a tto rn e y s n e ve r e xpla ine d to him the ir de fe ns e theory . He state d that, if they had aske d, he could have provided them with prior a cts of violence perpe trated by

the victim ag ainst him

. He ex p l ained, howe ver, that his attorney s did not want anything ne g ative said a

bout the victim during the trial. The pe titioner added tha t his attorney s failed
to prese nt the P ear son sisters as witnesses e ven thoug h they had bee n subpoenae d. He also said that he ha d o bje c te d to his a tto rn e y s r e sti ng the c a se be c a us e he tho ug ht the re wer e mo re wi tne sse s to p r e s e n t

. T h e p e t i t i o n e r

d e n i e d r e j e c t i n g “ a n y m e n t a l d e f

e c tm i t i g a t i o n s tr a t e g y. ” H e s a i d
, “ I a l w a ys felt that I went insane beca

use of what happene d. That’s the only thing that e x plains what happe ned
to my w if e

. ” H e c la im e d th a t “ M r

. F o r d to ld me th a t I n e e d e d to le a v e th e p s y c h s a lo n e. The y couldn’t help me.” The pe titioner stated t hat hi s attorney s disreg arde d anything that he said and that he be lie ve d th e y

fe lt a nim os ity

tow ardhim

. He c on c lud e d th a t he be lie ve d th e big g e st f a ilu re of his trial attorney s was not kee ping him informe d.

The pe titioner testified that he a nd Chris Dutton wer e not ce llmates, althoug h they wer e on the same pod. He said that if he ha d been pe rmitted to testify at his trial, he could ha ve impeac hed Dutton’s testimony . He a lso stated that he was not awa re that the victim had died until he arrived in Texas.

Reg arding the nig ht of t he murder, t he petiti oner testified that he had picked up a six pack of B us c h “ po nie s. ” He the n p ur c ha se d a mon e y or de r to pa y the vic tim so me c hil d su pp ort. He sa id he dra nk the six -pac k of bee r and the n drove to the vic tim’s home. He said that the victim was not ho me wh e n h e arrive d a nd that he dr ov e ba c k to “ Jac kie a ndDa rl e ne ’s ” wh e re he c on su me d s ome22

mor e b e e r s

. H e s a id h e th e n v is it e d s o me b ar s w h e r e h e c o n s u me d ap p r o xim a te ly n in e to twe lve more be ers.

On cr oss-examination, the pet itioner stated that he w as not aff orded a preliminary

hearing on the ki dnapping char g e but conce ded that he was not convicte d of kidnapping . He a dmitted that he was provided a preliminary hearing on the murder c harg e. The petiti oner failed to respond to the prosec ution’s statements that he had r equeste d the cha ng e of ven u e. T he petitioner a lso admitted that the trial court questioned him reg arding his decision not to testify and that he had informed the court that he would testify if the “wa

r flag ” we re r emoved. He e x plained, “T here ’s nothing in the
statut e that sa y s that the re ’s su pp os e to be a g old br a id on [the fl a g ] fo r the jurisd ic tio n o f the c ou rt

. That’s why

I – I ’d say it’s a badg e of f

raud.”

Th e p e ti ti o n e r s tate d th a t “ th e y ru in e d th e in to xic a ti o n d e f e n s e w h e n e v e r Judg e L aF on instructed the jury

that it was irre levant for

the culpable mental s tate .

. . .” He admitted that he knew his defense was intox ication in order to r ece ive a lesser- included off ense. In response to questioning as to whethe r the victim phy sically provoked him, the petitioner said he ne ver told any body that she did. He e x plai n ed t h at s h e d i d not phy sically provoke him, but she ver bally provoked him. He stated that he did not make the mess in the bedr oom and that s o m eo n e h ad t ampered with the videotape. He a dded that he w ent to the victim’s house that eve ning to attempt a rec onciliation.

The state c alled Dr . Kimberly Stalford, a psy chiatrist, wh o conducte d an eva luation of the petitioner. I n co m p l eti ng her e valuation, Dr. Stalfor d (1) r eviewe d the trial transc ript, (2) interviewe d the petitioner for thre e and one -half hour s, (3) re viewed the psy chiatric evaluation by Dr . Ca ru so a ndthe fo re ns ic ne ur olo g ic a l e va luatio n o f D r. Aubl e, and (4 ) r e a d th e ind ic tme nt, multipl e intervie ws by the TBI
, a report of the petit ioner’s criminal history and disciplinary

action, and various letters written by the petitioner. She also relied upon (1) two orders of pr otection filled out by the victim, (2) a c ivil summons f or divorce
, (3) a bill fr om B aptist Me morial Hospital, (4) a po lic e re po rt

of do me sti c dis tur

ba nc e da te d M a y

31 , 1 99 1, (5 ) a

do c ume nt c apti on e d “ Spe c if ic I nstance s of Acts or O missions of Counsel
, ” (6) a proce dural history of State of Te nnessee v. J on Hall, and ( 7) medica l rec ords from Middle Tenne ssee Mental Hea lth Institut e. Dr. Stalford a lso had

acc ess to the petitioner’s soc ial history

. She rec eived “ a biog raphic al desc ription o n wh er e a person’ s born, t heir c hildhood, their educational experience , their work history , their interpe rsonal relationships t hroug hout their life, drug and alc ohol use, issues such as that.”

Dr. Stalford de fined I ntermittent Ex plosive Disorder a s

a psy chiatric disorder t h at falls under the impulse control disorder s like cleptomania, and it is cl assi fied by impulsi ve outbursts which

us ua lly inf lic t ha rm on ob je c ts o r p e op le . T he dia g no si s is – describes – The second criteria includes the outbursts in excess of what one w ould e x pect, and the third aspec t of that diag nosis is t hat it c a n’ t be be tte r e xpla ine d b y a no the r p sy c hiatr ic ill ne ss.23

As a re s u l t o f her

evaluation, Dr. Stalford could not conc lude that the petitioner ha d I ntermittent Ex plosive Disorder

beca use his behavior s were better de scribed by other psy chiatric illnesses. She stated:

I

be lie ve that he ha s what we wo uldde sc ri be a s a pe rs on a lit y disorder, a nd very

much as Middl e Te nnessee described it, where he has some passive/a g g ressive traits, dependant tra i t s , b u t I think the

m o s tn o t ab l e t r a i t s ar e w h a tw e c a l l a n t i

- s o c i a l tr a i t s o r s o c i o p a t h y,

a nd wi thi n that dia g no sis
, the re is a re c kle ss d isr e g ardof

oth e r p e op le

a nda g itate d a nd po te nti a lly vio le nt a c ts, a ndI

thi nk his be ha vio r i s better e x plained unde r t h at diag nosis than intermittent ex plosive disorder.

She also diag nosed the pe titioner with alcohol depe ndence

.

Dr . St a lf or d e xpla ine d th a t:

Serotonin is a chemica l in our brains. I t is the way that nerve s

connec t. When y ou have a nerve and the ne rve stops, y ou need that

nerve to talk to the next nerve , and the way it does it i s the ner ve

r e le a s e s a c h e mi c a l th a t c a u s e s w h a t w e c a ll th e s y n ap s e to th e n e xt

ne rv e , a ndthat’ s h ow th e ner ve s ta lk. An d o ne of the c he mic a ls i n the br a in tha t do e s th a t is ser ot on in.

. . . [S]e ro ton in i s w hat w e c a ll

a neur otransmitter which basically is the way that nerve s talk to eac h other.

She testified that beca

use there are “so many

medical ne urolog ical and psy chiatric conditions that ha ve be e n link e d to alte re d ser oto nin e rg ic le ve ls tha t it’s re a lly no t a te rribl y us e fu l di a g no sti c te st, wh ic h is wh y

the fo re ns ic un it at Mi dd le Te nn e sse e do e sn ’t e ve n do it. ” She sa id that lo w s e ro ton in levels have been ide ntified in patients suffe ring from depr essio n , schizophrenia, bipolar disorde r, imp uls ive a c ts o f v iol e nc e , mo od dis or de rs , a nti -s oc ia l pe rs on a lit y dis or de rs , b or de rl ine pe rs on a lit y disorders, my oclonus, dem entia, slee p disorders, a nd even ma lnutrition. Dr. Stalford f urther dis c ou nte d the us e fu lne ss o f s e ro ton in l e ve ls a s a dia g no sti c too l by

statin g that ( 1) se ro ton in l e ve ls

measure d in the spinal fluid a re not a n acc urate indication of the serotonin activity in the sy napses wher e it works and (2) there is much question as to what are “norma l” levels of se rotonin. She stated that she re viewed the serotonin test results containe d in Dr. Caruso’ s report.

Dr. Stalford c oncluded that, ba sed on the e vents on the ni g ht of t he murde r, that the pe titioner

wa s able to thi nk c le arl y a nd pla n c e rt a in a sp e c ts of that ni g ht. She state d th a t ne ith e r dru g s, a lc oh ol,

no r a ny ps y c hiatr ic c on dit ion c ou ld e xpla in the pe tit ion e r’ s lo ss o f c on tr ol.24 Summ ary of Trial Court’s F ind ings of F act and Conclusion s of L aw

The trial c ourt rende red a compre hensi v e and ext ensive orde r re viewing the evidenc e prese nted and r endering le g al conc lusions as to the petitioner’s alleg ations of constitutional error

. After evaluating the evidenc e pre sented at the post-conviction hea ring and the tria l, the trial court made numer ous findings of fac t. The trial court found that the defense strateg y at trial wa s that the pe tit ion e r d id n ot p la n to kil l th e vic tim bu t w a s me re ly

a tte mpt ing to p a y c hil d su pp ort a ndre c on c ile wi th the vic tim . T he inc ide nt wa s c ha ra c te ri zeda s a n e mot ion a l do me sti c situatio n th a t me re ly

e sc a la te d a ndg ot o ut of c on tr ol. De fe ns e c ou ns e l’ s qu e sti on ing of wi tne sse s w a s c on sis te nt w ith thi s the ory thr ou g ho ut the tr ia l. Th e tr ia l c ou rt no te d tria l c ou ns e l’ s skill fu l c ro ss- e xami natio n o f s ta te witnesses, including introducing proof supporting the ir theory that the petitioner wa s intox icated at the time of the murde r. De fense counsel pre sented e vidence reg arding the petition er ’s mental condition.

I n addre ss i n g t h e petitioner’s post-c onviction claims, the trial court made the f ollowing finding s: The petitioner a rg ued that trial c ounsel wer e ineffe ctive for failing to inf orm the jury

that the petitioner h ad a h ab it of disconnecting telephone lines to g uara ntee the undivided attention of the person he was confr onting. The fac t that the petitioner disconnec ted the victim’s telephone line

was re levant to the is sue of preme ditation. Trial counsel did elicit information that the petitioner ha d dis c on ne c te d the vic tim ’s te le ph on e lin e s d uring so me of the ir pr e vio us arg ume nts a ndc on ve y thi s information to the jury . The trial c ourt determined that “it would not have been in [t he] petitioner’s best interes t t o ci te multiple incidents during w hich he f elt it was nec essary

to disable someone’ s phone to kee p their attention and/or pr event them f rom ca lling the police .” The trial court c oncluded that tria l c ou ns e l w e re a wa re of the se prior

inc ide nts a ndre a so na

bly e le c te d n ot t o p re se nt the m.
The pe titioner asserte d that trial counsel ha d no rea l defe nse theory . The trial c ourt reje cted this claim. The trial court found that trial counsel made a valiant attempt to convince the jury that the petitioner wa s distraug ht, depre ssed, and intox icated; that his behavior r efle cted a n impulsi ve ac t as opposed to a pla nned ac t; that the state failed to me et its burden of pr oving pr emeditation bey ond

a re asonable doubt; and that the petitioner lacke d the requisite mental state for first deg ree murder.

The pe titioner claimed that trial c ounsel failed to pr esent e vidence of intox ication. The tria l court found that trial counsel pre sent ed evide nce that the petitioner wa s car ry ing be er w hen he

arrived at the victim’s home

. The trial court also found that Dr. Z ag er testified that t h e p etitioner ha d b e e n d ri nk ing be e r be fo re arrivi ng a t the vic tim ’s ho me . Add iti on a lly , tria l c ou ns e l w a s a ble to elicit throug h cross-e x ami n at i o n o f Chris Dutton that the petitioner wa s drunk when he had telephoned the victim earlier that day . The trial c ourt conc luded that t h e p eti tioner could not demonstrate that h e s u ff

er ed any prejudice from trial c ounsel’s fa ilure to prese nt the testimonyof either D iana Pea

rson or Alice Pearson a s neither witness c ould testify reg arding the amount of alcohol consume d by

the petitioner, how quic kly he consume d the alcohol, o r how the alc ohol

a ff e c te d th e pe tit ion e r’ s b e ha vio r. Th e tr ia l c ou rt de te rm ine d that the ir te sti mon y wa s ir re le va nt t o the pe tit ion er’ s th e ory

of int oxic a tio n. Ad dit ion a lly , th e tr ia l c ou rt a tta c he d n o p ro bativ e va lue to the fa c t th a t th e pe tit ion e r d id n ot c on ve y to the Pe ars on s h is i nte nti on s o f kill ing the vic tim

.25

The pe titioner asserte d that trial counsel f ailed to hire a psy chiatrist t o pursue the theory that he suff ere d from I ntermittent Ex plosive Disorder and th at h e failed to compile an a dequate social his tory . T he trial cou rt r e je c te d th e se c la ims . T he tr ia l c ou rt no te d th a t th e pe tit ion e r f a ile d to prese nt the testimony of his pr etrial attorney s, the investigators, or Dr. Z ag er. The trial court noted that Gloria Shettles did more investigation than the initial re port included in the p o s t -c onviction

re c or d. Ad dit ion a lly , the t ri al cou rt fo un d th a t mu lti ple or de rs g rante d f un ds fo r a

pr ivate investigator. The tria l court conc luded that the court “would not have continued to g rant a dditional funds unless trial counse l established t hat Askew was in fa ct conduc ting the inve stigation for which sh e wa s h ir e d. ” Th e tr ia l cou rt fu rthe r de te rm ine d tha t Dr. Z a g e r wa s an expe ri e nc e d d e fe ns e wi tne ss in capital murde r ca ses and “under stood the importance of having acc ess to all rele vant information and would not have expressed her expert opinion in t he abse nce of such informa tion.” Ba sed on these fa ctors, the tria l court conc luded that the petitioner f ailed to p ro v e t h at t rial counse l’s investigation was inadequate. The tria l court additionally conclude d that Dr. Z ag er w as not bound by the op ini on of

e ith e r a n in ve sti g a tor

or the pe tit ion e r’ s sis te r. Th e pe tit ion e r f a ile d to e sta

bli sh that Dr. Z ag er was lac king in e ither experienc e or e ducation. The trial court a cknowledg ed that had Dr. Z a g e r b e li e v e d th a t th e p e ti ti o n e r h a d I n te r mi tt e n t E xp lo s iv e D is o r d e r , D r

. Z a g e r c o uld have convey ed this to trial counsel and rec ommended further evaluation of the pe titioner. I t stated that Dr . Z a g e r d id n ot s o r e c omm e nda ndthat th e pe tit ion e r h a d n ot e sta bli shedthat D r. Z a g e r w ou ld have done so if provided with additional informa tion. The trial court also stated that the petitioner

was e valuated by

the MTMHI fore nsic team, which included a psy chiatrist, and noted that this t eam also failed to diag nose the pe titioner with I ntermittent Ex plosive Disorder. T he petitioner c ould not establish the nee d for a

second psy chiatrist. Althoug h the trial court acknowle dg ed that the pe titioner had pre sented the te stimonyof Dr. Caruso to support his theory that he suffere d from I ntermittent Ex plos iv e D is o r d e r , th e tria l c o u r t d id n o t p la c e mu c h w e ig h t o n h is te s ti mo n y

. I t f o u n d that Dr. Caruso re lied upon studies that did not ex ist at the time of the petitioner’s tria l. Moreover , the trial court found that t h e s t ate’ s expert effe ctively impeache d the post-conviction testimony of the petitioner’s e x perts. The trial court concluded that the petit ioner wa s not entitled to “shop” for a n exper t to p r o v id e a p ar ti c u la

r o p in io n

. F in a ll y , th e tria l c o u r t d e te r mi n e d th a t b e c a u s e th e state’s post-con v i ct i o n p s y ch i at ri s tre j ec t ed t h e Int er m i t t en tE x p l o s i v e D isorder dia g nosis, the petitioner had not demonstrat ed t h at it was Dr. Z ag er’ s status as a psy cholog ist which cause d her to re ject the theory

.

Th e pe tit ion e r c on te nd e d th a t tri al cou ns e l sh ou ld h a ve pr e se nte d e vid e nc e that th e vic tim

wa s the a g g re sso r in the ir re la tio ns hip . T he tr ia l c ou rt a c kn ow le dg e d th e fa c ts a s p re se nte d a t tria l, including that the petitioner for ced his way into the victim’s home, at t acked her as her children watche d in h o rr o r , in f

o r me d th e c h il d r e n th a t h e w o u ld k il l th e ir mo th e r if th e y c a ll e d f or help, chase d the victim a fter she esca ped, drag g ed her

down the wa lkway , and held he r under the wate r in the child r e n ’ s s w im mi n g p o o l. T h e tria l c o u r t c o n c lu d e d th a t tria l c o u n s e l w e r e a w ar e o f the rele vant fa cts and that they made a tactica l decision not to attack the vic tim at trial. I t also conclude d that in tr od uc tio n o f a ny

e vid e nc e a s to t he vict im’ s r ole a s f ir st a g g re sso r w ou ld h a ve ha d li ttl e to no leg al sig nificanc e as there was no proof that the victim pr ovoked the petitioner at the time of her murder a nd that any

attempt to arg ue to the contr ary would have r esulted in the immediat e and irrevoc able a lienation of the jury

. I n a rela ted issue, the trial c ourt noted that the state posse ssed a26

g reat deal of neg ative information about the petitioner that was not introduc ed at the trial. The trial

c ou rt c on c lud e d th a t ha d trial cou ns e l pu rs ue d a n atta c k o f the vic tim ’s c ha ra c te r, the state wo uld have taken the opportunityto reve al many fac ts which would have harme d the petitioner much more tha n p re se nti ng e vid e nc e c on c e rn ing the vic tim ’s pa st b e ha vio r w ou ld h a ve be ne fi tte d h im.

The pe titioner arg ued that trial counsel were ineffe ctive for failing to interview his brother, Jef f H a ll, a ndpr e se rv e his te sti mon y fo r t ri al. Th e tr ia l c ou rt

fa ult e d th e pe tit ion e r f

or faili ng to pr e se nt the te sti mon y of his pr e tr ia l a tto rn e y s a ndde te rm ine d th a t th e pe tit ion e r f a ile d to sa tis fy

his burden of proving this claim. Notwiths t an d ing, the trial court f ound that the petitioner’s pr etrial

a tto rn ey s w e re a wa

re of Jef f H a ll’ s e xiste nc e , in c lud ing the fa c t th a t he wa s d y ing fr om A I DS. Whil e the tria l court ag ree d with the petit ioner that his pretria l attorney s should have preserved Jeff Hall’s testimony out of caution, the trial court found that the pe titioner had fa iled to demonstrate a ny prejudice . The trial c ourt additionally found that trial counse l did attempt to introduce the stateme nt during the trial but that it was ruled ina dmissibl e.

Th e pe tit ion e r c la ime d th a t tria l c ou ns e l f a ile d to pr e se nt a su ffici e nt m iti g a tio n d e fe ns e during the pena lty

phase of the trial. The tri al court re viewed the evidenc e pre sented during the penalty phase, recounting the t estimony of t he seven witnesses called by trial counsel, a nd reje cted the petitioner’s c laim, finding tha t trial counsel portray ed the pe titioner in the most posi tive light possible unde r the circ umstances. The trial court determined that the post-conviction testimonywas essentially

the same a s the testimony introduced at the trial. Whi l e ac k n o wledg ing that the petitioner’s sisters testified more during the post-c onviction hearing, the trial court de termined that i th a d n o b e ar i n g o n t h e m e r i t s o f h i s i n e f f e c t i v e c o u n s e l c l a i m , n o t i n g t h a t“ m o r e i s n o ta l w a ys better.” T h e trial c ourt determined that nothing in the testimony of Martin Eskew would have be ne fi tte d th e pe tit ion e r. Th e tr ia l cou rt c on c lud e d tha t it wa s a re a so na ble str a te g ic de c isi on no t to pr e se nt the te sti mon y of e ith e r Jac kie or Da rl e ne B ri tta in, a s a ny be ne fi t of the ir te st im on ywou ld ha ve be e n o utw e ig he d b y the state ’s c ro ss- e xami natio n o f e ith e r of the se wi tne sse s r e g ard ing the ir statements to the TB I . Reg arding the testimony of the F orema ns and the S t an fi lls, the trial court de te rm ine d th a t it

wo uldha ve a dd e d li ttl e to the te sti mon y a lr e a dy pr e se nte d d uring the pe na lty phase. F inally , the trial court indicated that the pe titioner did not establish t h at t ri al counsel was d e f i c i e n tf o r f a i l i n g t o i n t e r v i e w w i t n e s s e s p e r s o n a l l y.

P ost-Conviction Standard of Review

Post-conviction relief is only war rante d when a

petitioner est ab l ishes that his or her conviction is void or voidable beca use of an abridg ement of a constitutional rig ht. T.C.A. § 40-30- 103. The pe titioner’s challeng e to his conviction and se ntence for f irst deg ree murder is g overne d by the 1995 Post-Conviction Act, which requir es that alleg ations be prove n by clea r and c onvincing evidenc e. See T .C.A. § 40-30-110(f ). Evidenc e is clea

r and convincing when there is no serious or substantial doubt about the acc urac y of the c onclusions drawn f rom the evide n ce

. Hicks v. State, 983 S.W .2d 240, 245 (Tenn. Crim. App. 1998)

.27

Once th e tria l c o u r t h a s ru le d u p o n a p e ti ti o n , it s f in d in g s o f f

a c t ar e c o n c lu s iv e o n appea l unless the evidenc e in the rec ord preponde rate s ag ainst them. Wallace v. State, 121 S.W.3d 652, 656 (Tenn. 2003); State v. Nichols, 90 S.W .3d 576, 586 (Tenn. 2002) (citing State v. Burns, 6 S.W .3d 45 3, 46 1 ( Te nn . 199 9))

. Th is c ou rt ma y no t r e we ig h o r r e e va luate the e vid e nc e or su bs titute its infere nces f

or those dra wn by

the post-conviction court. Ni ch o l s , 90 S.W .3d at 586. Questions

conce rning the cr edibilityof witnesses and the weight to be g iven their testimony are for r esolution by the post-conviction court. Id. (citi ng Henley v. State, 960 S.W .2d 572, 579 (Tenn. 1997) ). Notwithstanding, de terminations of whe ther counsel provided a defe ndant constitutionallyeff ective assistance prese nt mix ed questions of law and fact. Wallace, 121 S.W .3d at 656; Nichols, 90 S.W .3d at 586. As s u ch, our r eview is de novo , and we acc ord the c onclusions rea ched be low no presumption of cor

rec tness. Wallace, 121 S.W.3d at 656, Nichols, 90 S.W .3d at 586.

I. IN EF F EC TIV E A SSIST AN CE OF CO UN SEL

The Six th A mendment provides, in pe rtinent part, that, “ [i ]n all criminal prosecutions, the

a c c us e d s ha ll e njo y

the ri g ht .

. . to h a ve the As sis ta nc e of Couns el for

his de fe nc e .” U. S. Co ns t. amend. VI . This rig ht to counsel is “so fundame n t al an d essential to a f air trial, a nd so, to due proce ss of law, that it is made oblig atory upon the States by

the Fourteenth Amendme nt.” Gideon v. Wainwrig ht, 372 U.S. 335, 340, 83 S. C t. 792 (1963) (quoting Betts v. Br ady
, 316 U.S. 455, 465, 62 S. Ct

. 12 52 (1 94 2) ). I nh e re nt i n th e ri g ht t o c ou ns e l is the ri g ht t o e ff e c tiv e a ssi sta nc e of

c ou ns e l. Cuy le r v . Su lli va n, 44 6 U .S. 33 5, 34 4, 10 0 S. Ct. 17 08 (1 98 0) ; Mc Ma nn v. Ric ha rd so n, 39 7 U .S. 75 9, 77 1 n .1 4, 90 S. Ct . 1 44 1 ( 19 70 ); se e a lso Str ic kland v. Was hin g ton , 46 6 U. S. 66 8, 68 6, 10 4 S. Ct. 2052 (1984).

“The benchma

rk for judging any

claim of inef

fec tiveness must be whethe r coun s e l’ s conduct so undermined the pr oper f unctioning of the adver sarial proce ss that the trial ca nnot be re lied on as having produce d a just result.” Strickland, 466 U.S. at 686, 104 S. Ct . at 2064; Combs v. C oy le, 205 F.3d 269, 277 ( 6th Cir

. 2 0 0 0 ). A t wo-prong test directs a court’s e valuation of a

claim of ine ff e c tiv e ne ss:

First, the de fend ant must show that counsel’s pe rformance was defic ient. This r equire s showing that counsel made err ors so serious that counsel wa s not functioning a s the “c ounsel” g uara nteed the de fe nd a nt by the Sixth Am e nd me nt. Se c on d, the de fe nd a nt mus t sh ow that th e de fi c ie nt p e rf orma nc e pr e

jud ic e d th e de fe ns e . T his require s showing that counsel’s err ors wer e so serious as to deprive the def endant of a fa ir trial, a tria l whose re sult is reliable.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The Strickland standard a pplies, as well, to the rig ht to counsel under

article I
, section 9 of t he Tennessee Constit ution. See S tate v. Melson, 772 S .W.2d 417, 419 n.2 (Tenn. 1989)

.28

The pe rformance prong of the Strickland test require s a petitioner r aising a cla im of ineffe ctiveness to show that the counsel’s re prese ntation fell below a n objective standa rd of

rea sonablene ss, or “outside t he wide rang e of professionally competent a ssistance.” Strickland, 466 U. S. at 69 0, 10 4 S. Ct. a t 20 66 ; se e a lso Ki mme lma n v. Mo rriso n, 47 7 U .S. 36 5, 38 6, 10 6 S. Ct. 257 4 (1986). “J udicial scrutiny of per formanc e is hig hly defe rential, a nd ‘[a] fair assessment of
attorn ey perf

ormanc e re quires that eve ry eff ort be made to eliminate the distorting e ffe cts of hindsight, to rec onstruct the cir cumstance s of counse l’s challeng ed conduc t, and to evaluate the

c on du c t f ro m c ou ns e l’ s p e rs pe c tiv e a t th e tim e .’ ” Combs
, 20 5 F .3 d at 27 8. Up on re vie wi ng c la ims of ineffec t ive assistance of counse l, the court “ must indul g e a strong presumption that counsel’s

c on du c t f a lls wi thi n th e wi de ra ng e of re a so na ble pr of e ssi on a l a ssi sta nc e ; that is, the de fe nd a nt mus t

overc ome t he presumption that, under the circ umstances, the c halleng ed ac tion ‘might be c onsidered

so un d tria l st

rate g y .’ ” Str ic kla nd , 4 66 U. S. at 68 9, 10 4 S. Ct. a t 20 65 . A dd iti on a lly , c ou rt s sh ou ld defe r to trial strateg y

or tac tical choice s if they are informed one s based upon a dequate prepa ration. Hellar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982) . Finally , we note that criminal defe ndants are not entitled to perfe ct re prese ntation, o n ly c o nstitut ionally

adequate re prese ntation. Denton v. State, 945 S.W .2d 793, 796 (Tenn. Cri m

. Ap p . 1996). I n other wor ds, “in considering c laims of ineffe ctive

a ssi sta nc e of

c ou ns e l, ‘ we a dd re ss n ot w hat is pr udent or app ro pria te , b ut o nly wh a t is constitutionallycompelled.’ ” B urg er v. K emp, 483 U.S. 776, 794, 107 S

. C t

. 3 114, 3126 (1987). No t w i t h s t a n d i n g , w e r e c o g n i z e t h a t“ [o ]u r d u t y t o s e ar c h f

o r c o n s t i t u t i o n a l [d e f

i c i e n c i e s ] w i th painstaking car e is neve r more e x acting than it is in a capital case .” I d. at 785, 107 S. Ct. at 3121.

I f the pe titioner shows that counsel’s repre sentation fell below a reasonable standard, the n the pe tit ion e r m us t satis fy the preju dic e pr on g of

the Str ic klandte st b y

de mon str a tin g “ the re is a

re a s o n ab le p r o b ab il it y

th a t, b u t f

o r c o u n s e l’ s u n p r o f

e s s io n a l e rr o r s , th e r e s u lt o f th e proce eding

wo u l d h a v e b e e n d i f

f e r e n t

. ” S tr i c k l a n d
, 4 6 6 U

. S

. a t 6 9 4
, 1 0 4 S

. C t

. a t 2 0 6 8

. “ A r e a so na ble probability

is a probability

sufficie nt to undermine conf idence in the outcome.” I d. I n evaluating whether a p e ti ti o n e r

s a ti s f ie s th e p r e

ju d ic e p r o n g , a

c o u r t mu s t a s k

“ w h e th e r c o u n s e l’ s d e f

ic ie nt perf ormanc e re nd er s t h e re sult of the trial unreliable or the proc eeding fundame ntally unfair.” L ockhart v. Fre twell, 506 U.S. 364, 372, 113 S. Ct . 838 (1993) ( citing Strickla nd, 466 U.S. at 687, 104 S. Ct. at 2064). I n other words, a petiti oner must establish that the deficiency of counse l was of su c h a de g re e that it

de pr ive d th e de fe nd a nt o f a fair tr ia l a nd c a lle d int o q ue sti on the re lia bil ity of the outcome

. Nichols v. State, 90 S.W .3d 576, 587 (Tenn. 2002) . That is, the evidenc e stemming from the f

ailure to pre pare a sound defense or to present witnesse s must be significant, but it does
not nece ssarily

follow that the trial would have otherwise r esulted in an a cq u i t t al. C ode v. Mo ntg ome ry , 7 99 F .2 d 148 1, 14 83 (1 1th Cir . 198 6) ; Ne a ly v. Ca ba na , 764 F .2 d 1 17 3, 11 78 -7 9 ( 5th Cir. 1985)

. “A rea sonable probability of being found g uiltyof a le sser c harg e, or a shorter se ntence , sa tis fi e s th e se c on d p ro ng in S tr ic kla nd .” Sta te v. Z imm e rm a n, 82 3 S.W. 2d22 0, 22 5 ( Te nn . Crim. App. 1991); see also Chambers v. Armontrout, 907 F.2d 825, 832 (8th Cir. 1990), ce rt. denied, 498 U. S. 9 50 , 1 11 S. Ct. 36 9 (1 99 0)

. Mo re ov e r, wh e n c ha lle ng ing a de a th s e nte nc e , th e pe tit ion e r m us t show tha t “ th e r e is a

r e a s o n ab le p r o b ab il it y

th a t, ab s e n t th e e rr o r s , th e s e n te n c e r

. . . w o u ldhave conclude d that the balanc e of the ag g ravating and mitigating circ umstances did not war rant de ath.” Henley v. State, 960 S.W .2d 572, 579-80 (Te nn. 1997), reh’g denied, (1998), cert. denied, N o. 97-29

8880 (U.S. Tenn. Oc t. 5, 1998) (citing Strickland v. Washingt o n, 466 U.S. at 695, 104 S. Ct . at 2069).

II. CLAIMS BEFORE THIS COURT

On appe al, the petitioner c laims that his trial counsel failed to function as ef fec tive counsel as g uara nteed by both the Tenne ssee and United States Constit utions. I n this re g ard, he asse rts that they denied him the ef

fec tive assistance of counse l at both the g uilt and penalty phase of his trial by failing to meet these standa rds for c apital re prese ntation:

( 1 ) tr i a l c o u n s e l f

a i l e d t o p r e s e n ta n i n t o x i c a t i o n d e f e n s e p r o p e r l y; (2) tria l counsel fa iled to establish the victim as the ag g ressor; (3 ) t ri a l c ou ns e l f

a ile d to pr e se rv e the te sti mon y of Jef f H a ll; (4) tria l counsel fa iled to present e vidence of the petitioner’s habit of disconnec ting
te le ph on e lin e s; ( 5 ) tr i a l c o u n s e l f

a i l e d t o p r e s e n tt h e m e n t a l h e a l t h i s s u e p r o p e r l y; (6) tria l counsel fa iled to pr esent evidenc e that the petitioner was a g ood fathe r and evidenc e of othe r g ood acts of the petitioner; (7) tria l counsel fa iled to develop a de fense strateg y ; and (8 ) t ri a l c ou ns e l f

a ile d to int e rv ie w a ll p ote nti a l w itn e sse s.

We proce ed to re view ea ch of the petit ioner’s arg uments and analy ze them in light of trial c ounsel’s conduct a nd perf

ormanc e. W e n o t e that the petitioner has fa iled to assign c ounsel’s alleg ed defic iencies to either the g uilt or t he penalty phase. As did the t rial court, we will revie w t he er rors in appropriate context at either the g uilt phase, pena lty phase, or both.

A. Cou ns e l f

a ile d to pr e se nt an in toxic a tio n d e fe ns e pr op e rl y

Th e pe tit ion e r c on te nd s that tr ia l c ou ns e l faile d to p re se nt e vid e nc e of int oxic a tio n p ro pe rl y to neg ate his ability

to form the re quisite intent to establish premeditation. H e complains that trial counsel “ failed to produc e one shr ed of e vidence reg arding intox ication.” In this reg ard, the petitioner conte nds that trial counsel wa s ineffe ctive for failing to locate and prese nt the testimony of Di a na Pe ars on a nd Al ic e Pe ars on

. At the po st- c on vic tio n he ari ng , the pe tit ion e r pr e se nte d th e ir
te sti mon y . B othsa id tha t th e y we re a t a

ba r o n J ul y 29
, 19 94
, a ndthat th e y c ou ld b are ly

re c a ll having drinks with the petitioner.

Mr . F or d te sti fi e d tha t into xicatio n, wh ile no t a de fe ns e to mur de r, wa s a

pa rt of the ir de fe ns e theory . He sa id that he was unsuc cessf ul in his at t empt to locate witnesse s who knew of the petitioner’s alcohol problem. Moreove r, the pe titioner ref used to testify . Mr. For d stated that the defe nse wa s unable to pursue this avenue at trial based on these fac tors.

The trial transcript r evea ls tha t e vidence of intox ication was pr esente d throug h the testimony of se ve ra l w itn e sse s:30

1. On cross-examination, Chris Dutton acknow ledg ed telli ng the authorities that the petitioner had state d that he had started drinking afte r he spoke with the victim on the
te le ph on e on the da y

of the mur de r andthat he wa s d ru nk a t th e tim e of the inc ide nt.

2

. O n c r o s s

- e xa m i n a t i o n , o n e o f t h e p e t i t i o n e r ’ s d a u g h t e r s , C y n t h i a L a m be rt , admitted that he had br oug ht beer with him to t he victim’s home and that he sta rted drinking one of the beer s in her pre sence

.

3. Dr. L y nn Z ag er, a

defe nse witness, testified to the pe titioner’s alcohol de pendenc e problem and tha t, at the time of the incide nt, he was intoxi cate d o n al co hol. On

cross-e x ami nation, Dr. Z ag er state d that her information as to the petitioner’s intox ication at the time of the offe nse wa s not ba sed solely upon the petitioner’s se lfreport, but al s o o n i n t ervie ws of per sons with the petitioner “shortly befor e the incident” that we re c onducted by Mike Mosier, previous counsel for the pe titioner.

Ad dit ion a lly
, Dr

. Z a g e r re lie d up on inf orma tio n pr ov ide d by the pe tit ion e r’ s f a mil y re g ard ing his

a lc oh ol p ro ble m.

We conclude, a s did the trial court, that the tria l transcript directly ref utes the petitioner’ s claim that trial counse l failed to pre sent any evidenc e of intox ication. M oreove r, we cannot c onclude that counsel wa s deficie nt for fa iling to pre sent the testimony of either A lice or D iana Pea rson. Neither witness could testify

reg arding the amount of a lcohol consumed by the petitioner. Ne ither wi tne ss c ou ld t e sti fy

a s to wh e the r the pe tit ion e r a pp e are d in toxic a te d. I nd e e d, bo th w itn e sse s c ou ld bare ly reme mber shar i n g d ri n k s with him at all. The petitioner has f ailed to establish how the
te sti mon y of the se wi tne sse s w a s r e le va nt t o a the ory of int oxic a tio n, a nd he ha s fa ile d to e sta bli sh either de ficient pe rformance or re sulting pre judice.

Additionally , while the petitioner c ould have testified a s to th e l ev el of his intox ication befor e the murde r, the pe titioner decide d not to testify

. Counsel cannot be f ound ineffe ctive for

the pe tit ion e r’ s d e c isi on no t to te sti fy . T he pe tit ion e r i s n ot e nti tle d to re lie f o n th is c la im.

B. Counsel fa iled to establish the victim as the ag g ressor
The pe titioner asserts that the post-c o n v i ct i on testimonyof his siblings “a nd the B rittains

c le arl y e sta bli sh that th e vi cti m was c apa ble of g oa din g the pe tit ion e r. ” He c on te nd s th a t th is evidenc e es t ab l i s hed provoc ation and wa s essential to establish the circ umstances f or voluntary manslaug hter. Trial counsel testified tha t they made a strateg ic decision not to attack the cha rac ter of the victim bec ause it ra n the risk of a lienating the jury

. M r. M ay o also said that as be st as he could re call, the victim’s a cts ag ainst the petitioner wer e not se vere enoug h to implythat his conduct

was re asonable . Both Mr. Ma y o and Mr. F ord stated that the petit ioner was the only reliable source to establish the victim’s acts of violenc e but that he r efuse d to testify

.31

B ri e fl y su mma ri zed , th e fa c ts e sta

bli sh e d th a t th e pe tit ion e r

d i s c o n n e c t e d th e te le ph on e lin e s, forc ed his way into the victim’s home
, and violently attacke d her as the childre n jumped on his back, bit him, and pleaded f

or him to stop hurting their mother . T h e fi g ht continued outside, wher e the petitioner dra g g ed the victim ac ross the drivew ay and to the back of the house. T here , he held he r under the water

in the children’ s swimming pool. No evidenc e showed that the victim provoked the petitioner immediately

befor e his ac tions that resulted in her de ath. The trial c ourt conc luded that in light of these fac ts, evidence of the victim’s prior acts of ag g ression upon t he petitioner w ould not have a ssi s t ed counsel in establishing that the victim was the fir st ag g ressor on this occ asion. Additionally , the trial court found that the testimony of Dr. Z ag er a nd Randy Helms communicate d to the jury

that the petitioner wa s emotionally distraug ht and ac ting in an impulsive manne r.
During the petitioner’s tria l, counsel attempted to ne g ate the e lement of p re m ed i t ation by prese nting e vidence of mental he alth issues and intox ication ra ther than attempt to establish the provocation necessa

ry to support a voluntary

manslaug hter ve rdict. The state posse ssed a suff icient

a mou nt of inf

or ma tio n re fl e c tin g pr ior a c ts of vio le nc e by

the pe tition e r a g a ins t th e vic tim , b ut d id not seek introduction of this evidenc e at tria l. H oweve r, had the defe nse attempted to establish the victim as the first ag g ressor, the state could ha v e p re s en t ed such information to discredit any indication that the victim provoked the petitioner. The defe nse strateg y not to portray the victim as the ag g ressor w as re asona b l e, gi v en the risk of the ba cklash fr om attacking the dec ease d victim’s char acte r. See, e.g ., Heiman v. State, 923 S.W .2d 622, 627 (Tex. Crim. App. 1995) (stating it was sound trial strateg y

to refr ain from attacking the victim’s char acte r as it was c onceiva ble that the jury would have f

ound this strateg y

repug nant). According ly
, the petit ioner ha s failed to esta blish that

c ou ns e l w a s d e fi c ie nt b y

fa ili ng to p ur su e thi s th e ory of de fe ns e

. He is no t e nti tle d to re lie f a s to thi s

c la im.

C. T ri a l c ou ns e l f a ile d to pr e se rv e the te sti mon y of Jef f H a ll

The pe titioner’s brother, J eff Hall, di ed from complications of AI DS on J uly 4, 1995. The pe tit ion e r c la ims that tria l c ou ns e l w e re ine ff e c tiv e fo r f

a ili ng to p re se rv e his te sti mon y . It is undisputed that Mr. For d and Mr. May o wer e not c ounsel of rec ord at the time of Jeff Ha ll’s death. Th e re c or d r e fl e c ts that du ri ng the g uil t ph a se of the tr ia l, c ou ns e l a tte mpt e d to int ro du c e the a ff

ida vit throug h the testimony of Shery l A rbog ast. See Hall, 8 S.W .3d at 603. The trial c ourt excluded the testimonybeca

use Ms. Arbog ast had no pe rsonal kno wl ed g e of the fac ts reg arding her br other’s

me ntal stat e . T he iss ue wa s r a ise d o n d ir e c t app e a l. B oththi s c ou rt a ndthe Te nn e sse e Sup re me Court affirmed the trial c ourt’s exclusion of this st atement. I n aff irming the trial court’ s exclusion of the stateme nt, our supreme court re asoned:

Rule 804 provides for

certain exceptions to the hearsay exclusionary rule whe n a witness is “una vailable.” “Una vailability ” i s d ef ined at

s u b s e c ti o n ( a ) ( 4 ) a s in c lu d in g s itu a ti o n s in w h ic h th e d e c la r a n t “ [i ]s unable to be pr esent or to testify at the hea

ring beca use of the decla rant’s death or then e x isting phy sical or menta l illness or infirmity .” Howe ver, unde r subsec tion (b) of Rule 804, the hearsay32 exception for unava ilable witnesses ap p lies only to (1) former testimony , (2) state ments under be lief of impending death, ( 3)
state me nts a g a ins t in te re st, a nd(4 ) s ta te me nts of pe rs on a l a ndfamil y his tory

. S ee T e nn . R. Ev id. 80 4( b) . Jef f H a ll’ s d e sc ri pti on s to Arbog ast of the de fenda nt’s mental state do not fa ll with i n an y of these e x ceptions.

I d. Mr. For d and Mr. Ma y o wer e not deficie nt in failing to sec ure introduc tion of J eff Hall’s testimony

. Notwithstanding, the issue arises a s to whether pr etrial c ounsel wer e inef fec tive for f

ailing to i nte rv ie w o r p reserve th e tes timon y of Jef f H a ll. B e fo re his de a th, She ryl A br og a st t ra ve le d to Te xas a ndob ta ine d a n a ff ida vit fr om h im. I n th e a ff

ida vit
, he sa id that th e pe tit ion e r h a d v isi te d h im in J une 1994. During this visit, he observe d that the pet i t i o n er w as “ve ry depre ssed/suicidal over fa mil y a ndmon e y

pr ob le ms. ” Th e a ff

ida vit re fl e c ts M r. Ha ll’ s b e lie f that th e pe tit ion e r l ov e d h is wife a nd children. H e also believed that if his br other wa s g uiltyof murder , the murder was “ invoked and induce d by someone.” He sa id that “J on acte d under strong provocation, stress, pressure , and

se eme d to be dy sf

un c tio na l du ri ng his vis it w ith me

. . . . ” Mr . H a ll c los e d b y statin g that hi s brother’ s attorney s had neve r conta cted him about testify ing a s a cha rac ter witness.

The pe titioner failed to ca ll his former attorne y s as wi t n es s es during the post-c onviction evidentiary

hearing. A s such, he ha s failed to satisfy his bur den of proving his a lleg ation by clea r and convinc ing e vidence . Ne i t h er t h e trial c ourt nor this court have any way of knowing the

c ir c ums ta nc e s r e le va nt t o th e iss ue a ndfo rm e r c ou ns e l or wh eth er a

ta c tic a l r e a so n e xiste d to withhold this information from the jury absent testimony from pretria l c ounsel. The pe titioner is not entitled to relief on this cla im.

D. Trial c ounsel failed to pr esent e vidence of the pe titioner’s habit of disconne cting telephone w ires

At the post-convicti o n h ea ring , the petitioner maintaine d that the ac t of disconnec ting
te le ph on e lin e s, by

its e lf, a pp e are d s ini ste r. He pr e se nte d te sti mon y that it wa s c omm on fo r h im t o dis connect telephone lines in orde r to obtain the undivided attention of the pe rson he wa s confr on ti n g

. T h e p e ti ti o n e r main ta in e d th a t n o n e o f th e p r io r in c id e n ts w h e r e h e d is c o n necte d telephone lines r esulted i n him inflicting harm. His position at t he post -convic tion hearing w as that in tr o d u c ti o n o f

th e s e p r io r

in c id e n ts w o u ldh a v e ta k e n a w a y th e “ s ti n g ” o f

th e w ir e s b eing disconnec ted and would ha ve neg ated pr emeditation. He mai n t ai ns that trial counsel we re ine ff e c tiv e fo r f

a ili ng to i ntr od uc e e vid e nc e e sta bli sh ing that it

wa s t he pet it ione r’ s h abit to disconnec t telephone lines.

At the po st- c on vic tio n h e ari ng , tria l c ou ns e l di sa g re e d w ith the pe tit ioner ’s the ory on his habit of disconnec ting tele phone lines. Mr. May o testified that the ac t of disconnec ting tele phone lines to a house, no matter for what purpose, “paints a p i ct ure of someone who is on the e dg e.” Whil e he a g ree d that the ac t of disconnec ting the w ires appe are d sinister, he believe d that it looked33

sin ist e r w he the r o r n ot s ome on e wa s h arm e d. He sai d th at he could n ot c on c lud e that th is information would have been helpful to the petitioner. Mr. F ord testified that c ounsel was a war e of the pe tit ion e r’ s p ra c tic e of dis c on ne c tin g te le ph on e lin e s bec a us e it wa s c on ta ine d in Carr oll Cou nty police re ports. Mr. For d testified that evidenc e of a habit of disco n n ec t i ng telephone lines
est ab l i s h ed t h at the petitioner wa nted to control situations and planned to do the sa me ag ain. He disag ree d with the position t hat this evidence would have ne g ated pr emeditation.

The trial tra nscript re flec ts that during c ross-exam i n at ion of Chris Dutton, trial counsel elicited the f

act that the pe titioner had explained that he ha d disconnec ted the tel ep h o n e l i n e on pr e vio us oc c a sio ns to pr e ve nt the vic tim fr om ca lli ng the po lic e

. Se e Ha ll, 8 S.W.3 d at 598 . T hu s, information was c onvey ed to the jury that the petitioner ha d previously disconnec ted telephone lines with no harm resulting to the person he was confr onting. We conclude
, as di d the trial court, that trial counse l was not deficient for f ailing to introduc e multiple instances showing the petitioner’s habit of disconnec ting tele phone lines. See H ellard, 629 S.W.2d at 9. The petiti oner is not entitled
to r e lie f o n th is c la im.

E. Tria l c ou ns e l f

a ile d to pr e se nt the me nta l he a lth iss ue pr op e rl y

1. F a c tua l ba c kg ro un d u nd e rl y ing c la im

During the g uilt phase of the pe titioner’s trial, trial counse l presente d the testi mony of Dr. L y nn Z ag er, a

clinical psy cholog ist. S ee Hall, 8 S.W .3d at 598. Dr. Za g er diag nosed the pe titioner

a s d e pr e sse d a ndsu ffe ri ng fr om a lc oh ol d e pe nd e nc e . Sh e fu rthe r o bs e rv e d “ pe rs on a lit y char acte ristics of par anoia a nd depende ncy .” I n her pr ofessional opinion
, s h e believed that the petitioner suffe red f

rom depre ssion and alcohol intox ication at the t ime of the killing. She f ound the s e f a c t o r s w e r e c o mp o u n d e d

b y h i s p e rs on a lit y

c ha ra c te ri sti c s a ndva

ri ou s p sy c ho -s oc ia l st

re sso rs , including a

sick child, loss of employ ment with the resulting financ ial problems, his im p ending divorce , and the terminal illness of a brother . She conclude d that the petitioner a cted in an impulsive

manner in killi ng his wife, rather than pur suant to a pre conce ived plan.

Dr. Z ag er te stified ag ain during the pe nalty phase along w ith Dr. J oe Mount, a psy cholog ical examiner who counseled the petit ioner at Riverbend Max imum Security I nstitut ion. Hall, 8 S .W.3d at 598. B oth doctors desc ribed him as “de presse d, remorse ful, suicidal and e x tremely conce rned about his children.” Dr. Mount te stified that the petitioner had been diag nosed as suffe ring from an adjustment disorder with mi x ed emotional fe ature s and “substanc e abuseof depe ndence by history .” I d. at 599.

At the post-conviction evide ntiary hearing, the petiti o n er p re s ented the te stimonyof Dr. Pamela Auble and Dr. Ke ith Caruso, who examined the petitioner at the reque st of post-conviction counsel. B oth doc tors testified that a complete social history , including interviews with more than

on e fa mil y

me mbe r, wa s n e c e ssa

ry in o rd e r t o c omp e te ntl y

e va luate a

c lie nt.34

Dr

. Au ble ’s e va luatio n of the pe tit ion e r re su lte d in se ve ra l c on c lus ion s: (1 ) c e rt a in re su lts

we re c on sis tent wi th atte nti on de fi c it d iso rd e r, (2 ) r e su lts ind ic a te d th e pe tit ion e r h a s d if fi c ult y controlling em o t i ons in emotional situations , (3) the pe titioner exhi bited low self-e steem, (4) evidenc e of internal ang er e x isted, (5) the pe titioner may have ha d trouble understanding people a nd perc eiving them in acc urate way s, and (6) evidenc e exis ted of tension from his c urre nt situation. Dr. Auble stated tha t a low serotonin leve l wo u l d b e consistent with I ntermittent Ex plosive Disorder. On c ro ss- e xami na tio n, Dr . Aub le c on c e de d th a t a dia g no sis of

I nte rm itt e nt E xplos ive Di so rd e r i s made only

afte r other me ntal disorders and alcohol or drug abuse a re e x cluded. Alc ohol abuse, drug abuse, a nd other menta l disorde rs could not be excluded as the cause of the pe titioner’s ag g ressive behavior . She conce ded that her conclusions wer e basica lly the same as those rea ched by Dr. Z ag er.

Dr. Car uso conclude d that beca

use of Intermitte n t E xp lo sive Disorder , major depr ession, and intox ication, but mostlyI ntermittent Ex plosive Dis o rd er the petitioner wa s unable to ac hieve a mental state a

bsent of passion and e x citement. He s ai d that rec ent re sear ch by Dr. Emil Cocca

ro

reve aled a

corr elation between low levels of se rotonin in the brain and violent a cts. He state d that the pe tit ion e r’ s se ro ton in l e ve l is in the bo tto m f ive pe rc e nt andis, the re fo re , c on sis te nt w ith someone ha ving Intermittent Ex plosive Disorder. O n cross-e x amination, Dr. Car uso conce ded that Dr. Cocca ro’s finding s relative to se rotonin level and Intermittent Ex plosive Disorder w ere neither

a va ila ble in 1 99 5 n or

a t th e tim e of

the tr ia l be c a us e Dr . Co c c aro ’s the ory wa s n ot p re se nte d u nti l 20 01

. He fu rthe r c on c e de d that thi s inf orma tio n is no t c on ta ine d in the c ur re nt DSM 4. Dr . Ca

ru so

a g re e d that th e pe tit ion e r’ s a c t of dis c on ne c tin g the te le ph on e lin e e sta bli sh e d th a t he wa s c apa

ble of some deg ree of planning

.

The state prese nted the testimonyof Dr. Kimberly Stalford to rebut the c onclusions of Dr. Au ble a ndDr . Ca

ru so . D r. Sta lf

or d d e fi ne d Inte rm itt e nt E xplos ive Di so rd e r andstate d th a t sh e did not diag nose the pe titioner as having the di sorder

. She conclude d that the petit ioner’s behavior wa s be tte r e xpla ine d w ith a

dia g no sis of

pa ssi ve/a g g re ssi ve tr a its , d e pe nd a nt t raits , a nda nti -s oc ia l tr a its
, inc lud ing a

re c kle ss d isr e g ardfo r o the r p e op le a nda g itate d a ndpo te nti a lly vio len t act s. S he a lso diag nosed the pe titioner with alcohol depe ndence

.

Dr. Stalford discounte d the cor rela tion between low se rotonin levels and Intermittent Ex plosive Disorder. Spec ifically
, she said that a low serotonin level is not a useful diag nostic tool fo r thr e e re a so ns : ( 1) ma ny med ica l, n e ur olo g ic a l, andps y c hiatr ic c on dit ion s h a ve be e n li nk e d to

a lte re d s e ro ton ine rg ic le ve ls s o as t o r e bu t th e a sse rt ion that a low le ve l of

se ro ton in i s u nd ou bte dly linked only to Intermittent Ex plosive Disorder ; ( 2) serotonin levels measure d in the spinal fluid are
not an acc urate indication of the serotonin activity in the sy napses which is w here it works; and (3) much question exist s as to what ar e “normal” leve ls of serotonin.

Th e pe tit ion e r c on te nd s th a t tria l c ou ns e l w a s in e ff e c tiv e fo r fa ili ng to p ro vid e Dr . Z a g e r w ith a complete mitigation history of the pe titioner, which prohibited a com p l et e ev aluation of the petitioner’s menta l condition. Additionally
, he asserts that counsel wa s ineffe ctive for relying upon the e va luatio n o f D r. Z a g e r, a ps y c ho log ist , r a the r tha n o btaini ng the se rv ic e s o f a ps y c hiatr ist

.35 2. Fa ilure to provide c omplete mitigation history

I n h is b ri e f, the pe tit ion e r m ake s se ve ra l state me nts re g ard ing c ou ns e l’ s “ du ty to i nv e sti g a te thoroug hly

a complete mitigation history of the c lient.” Howe ver, he fails to alleg e which portions of his social history

wer e not provided to Dr . Z ag er. A t the post-conviction hea rin g, t h ree of the pe tit ion e r’ s si ste rs a ndse ve ra l of his frie nd s tes tif

ie d tha t tria l c ou ns e l f

a ile d to int e rv ie w the m un til the eve ning be fore their testi m o n y

. I t was e stablished, howeve r, that the pe titioner had bee n

app oint ed inve sti g a tor s b y the c ou rt . T he pe tit ion e r d id n ot p re se nt the te sti mon y of the se investigators or his pretria l attorney s at the post-convic tion hearing

. The mitigation assessments and re ports provided by Dr. Ann Char vat a n d Gl o ria Shettles

wer e introduced as part of the post-conviction rec ord. Dr. Charvat’ s asse s s m en t contained summaries of h er interviews with Shery l Arbog ast and the pe titioner’s mother. Dr . Charvat compiled a leng t h y famil y history and her report also contained a

list of potential witnesses and de ta ile d g uid a nc e fo r the ma nn e r i n w hic h de fe ns e c ou ns e l sh ou ld pr e pa re fo r a c apit a l mur de r t

ri a l. Ad dit ion a lly , th e po st- c on vic tio n re c or d co ntains on e me mor a nd um c omp le te d b y Gl oria She ttl e s, the mitigation s pecia list, showing that both the petitioner a nd Shery l Arbog ast had re viewed a nd made c orr ections to Dr. Char vat’s initial assessment. The me morandum also indicate s that

corr espondenc e had be en for war ded to t he petiti oner’ s family for the purpose of separ ate inter views and additional bac kg round informa tion. The memorandum r efle cts Gloria Shettles’ c onclusion that the pe tition e r m a y

ha ve su ff

e re d f ro m I nte rm itt e nt E xplos ive Di so rd e r. Th e pe tit ion e r f a ile d to prese nt the testimonyof Ms. Shettles and fa iled t o p ro v i de the c ourt with additional reports. The petitioner has not esta

blished that Ms. Shettl es did not interview potential witnesses. Finally , there is evidence that defe nse counse l was g rante d funds for a private inve stigator, Tammy Askew. The re is no evidence befor e the c ourt that Ms. Askew did or did not conduc t any investigation.

Trial counse l testified that Dr. Za g er was provided all of the re levant information that they possessed. The recor d does contain a letter written on November 19, 1995, by Dr. Za g er to one of the petitioner’s pr etrial a ttorney s, which stated he r need for more information befor e she w ould be able to deliver

a def initive assessment of the petitioner. Specifica lly
, she inquired as to interviews

w i t h R a n d y H e l m s , J a c k i e a n d D ar l e n e B r i t t a i n , t h e p e t i t i o n e r ’ s m o t h e r , D e b b i e D a v i s , S h e r yl Arbog ast, and Jeff Ha ll. The letter c losed by statin g, “I w i l l provide a complete r eport onc e the

abo ve inf or ma tio n is re c e ive d a ndre vie we d in lig ht o f the e va luatio n. ” Th e pe tit ion e r fa ile d to c a ll Dr. Z ag er a s a witness at the post-c onviction hearing. We c an pre sume from t h e fa ct t h at she testified as to the petitioner’s mental condition at trial that she was pr ovided suffic ient information fo r a c omp le te re po rt . T he pe tit ioner has fai le d to e sta bli sh that D r. Z a g e r w a s n ot p ro vid e d a ll

re le va nt i nf

or ma tio n. Cou ns e l c a nn ot b e fo un d d e fi c ie nt w he n the y c omp le te a n a de qu a te investigation.

3. F a ilu re to o btain s e rv ic e s o f a ps y c hiatr ist

The pe titioner complains that trial counsel we re ine ffe ctive for failing to seek the se rv i ces of a psy chiatrist. The pe titioner was provided the s ervic es of Dr. Z ag er, a clinical psy cholog ist. The36

evidenc e does not indicate whethe r Dr. Z ag er had Gloria Shettles’ re port mentioning Intermittent Expl os ive Di so rd e r a va ila ble to h e r. Ev ide nc e a t th e po st- c on vic tio n hear in g re fl e c te d th a t Ms

. Shettles discussed the possibilit y of the pe titioner’s suffe ring from I ntermittent Ex plosive Disorder with Shery l Arbog ast. Ms. Arbog ast appa rently ag ree d with Ms. Shettles’ assessment. Howe ver, neit h er M s. Shettles nor Ms. Arbog ast wer e qualifie d to provide a dia g nosis as to the petitioner’s mental condition, and Dr . Z ag er w as not bound to adopt their opinions. Dr. Z ag er’ s qualifications

a s a c lin ic a l ps y c ho log ist

are no t di sp ute d, a nd the re is no tin g ind ic a tin g that D r. Z a g e r’ s d ia g no sis would have chang ed had she bee n provided a dditional information. Accor dingly , we be lieve that the only complaint conce rning Dr. Z ag er’ s diag nosis is t hat it is not t he diag nosis now d es i re d b ythe pe tit ion e r. I n e ff

e c t, the pe tit io ner is c on te nd ing that tria l c ou ns e l w e re de fi c ie nt f or faili ng to prese nt evidence of I ntermittent Ex plosive Disorder.

Nothing in the r ecor d indicates that Dr . Z ag er did not consider the pos s i b i litythat the petitioner suffe red f

rom I ntermittent Ex plosive Disorder

. Additionally
, had Dr . Z ag er be lieved that

a s er o t o n i n t est was ne cessa ry , she could ha ve informe d trial counsel that she did not have the author it y to o r d e r s u c h a te s t an d th a t a

p s y c h iatris t s h o u ldb e c o n ta c te d to c o n d u c t f u rther evaluations. Dr. Z ag er did not make any such i ndication t o trial counsel. Additionally , the petitioner has fa iled to present a ny

evidenc e esta

blishing that trial counse l s h o u l d n o t have r elied upon Dr

. Z ag er’ s profe ssional opinion.

Dr . Z a g e r did no t di a g no se the pe tit ion e r w ith I nte rm itt e nt E xplos ive Di so rd e r. Th e Mid dle Tenne ssee Me ntal Hea lth I nstitut e tea m, wh i ch included a psy chiatrist, did not diag nose the pe tit ion e r w ith I nte rm itt e nt Explo siv e Di so rd e r. F ina lly , the state ’s po st- c on vic tio n p sy c hiatr ist did not diag n o s e t h e p eti tioner with the disorder . Thus, the petitioner’s c laim, at best, amounts to an

a sse rt ion that c ou ns e l sh ou ld h a ve ob ta ine d a n e xpe rt wh o w ou ld h a ve dia g no se d the pe tit ion e r w ith I ntermittent Ex plosive Disorder. T he Constituti on does not requir e attorne y s to “shop around” for more fa vorable expert testimony . See Poy ner v. Mur ray , 964 F.2d 1404, 1419 ( 4th Cir. 1992).

Although the petitioner has now pr esente d the testimony of two experts to support his t heory of I ntermittent Ex plosive Disorder, he still has not established that counsel was defic ient for f ailing to present suc h testimonyat trial. Dr. Ca ruso conc eded that resea

rch r elative to the corre lation of low serotonin levels a nd I ntermittent E x p l osive Disorder was una vailable at the time of the petitioner’s trial. Additionally
, the trial court determined that the testimony of both Dr. Auble and Dr. Car uso was ef

fec tively impeache d t h rough cr oss-examination of these witnesses a nd by the testimonyof Dr. Stalfor d. The pe titioner has fa iled to establish th at t ri al counsel should have pr e se nte d e vid e nc e of

I nte rm itt e nt E xplos ive Di so rd e r. He is n ot e nti tle d to re lie f o n th is c la im.

F. Trial counsel fa iled to present e vidence that the petitioner wa s a g ood fathe r and

evidenc e of othe r g ood acts of the petitioner

The pe titioner asserts that he has pre sented “ massive amounts of ‘ go o d g uy ’ and ‘ g ood fathe r’ e vidence ” during the post-conviction evidentiary hear ing. T he re cord r efle cts that he pr e se nte d th e te sti mon y

of (1 ) S he ry l A rb og a st a nd Kathy Hu g o, the pe tit ion e r’ s si ste rs , w ho c ou ld37

have te stified to his aptitude a s a fathe r, (2) Clarenc e Stanfill, Joe Henry Stanfill, Valene F orema n, Paula For eman, a nd Pamela For eman who could have testified to the petitioner’s a bilityto car e for his children, and ( 3) Jackie and Darlene Brittain who could have te stified to good a cts perf ormed by the petitioner. He contends that trial c ounsel wer e def icient for failing to investigate and inter view favor able witnesse s and for failing to introduce their te stimonyat trial.

I n the context of capital case s, a defe ndant’s backg round, char acte r, and mental condition are unquestionably

signific ant. “[E]vi dence about the def endant’ s backg round and chara cter is releva nt beca use of the be lief . . . that def endants who c ommit criminal ac ts that are attributable to a disadvantag ed bac kg round, or to emotional and me ntal problems, may be l es s cu l pable than defe ndants who have no such excuse.” Ca lifornia v. Br own, 479 U.S. 538, 545, 107 S. Ct . 837, 841 (1987); see Edding s v. Oklahoma, 455 U.S. 104, 113-15, 102 S. Ct. 869, 876-77 (1982); L ockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct . 2954 (1978) ( plurality opinion); Za g orski v. State, 983 S.W .2d 654, 657-58 (Te nn. 1998); Goad v. State, 938 S.W .2d 363, 369 (Tenn. 1996). The right that c apital defe ndants have to present a vast arr ay of per sonal information in mitigation at the se ntencing phase, ho we ve r, is c on sti tut ion a lly dis tin c t f ro m the qu e sti on wh e the r co un se l’ s cho ic e of inf orma tio n to prese nt to the jury

was prof essionally rea sonable.

There is no constituti onal impera tive that counsel must offe r mitiga tion ev i d en ce at the penalty phase of a ca pital trial. Nonethele ss, the basic co n ce rns of counsel during a ca pital

se nte nc ing pr oc e e din g are to n e utr a lize the a g g ra vatin g c ir c ums ta nc e s a dv a nc e d b y the state a ndto prese nt miti g ating evidenc e on beha lf of the de fenda nt. Although ther e is no requir ement to pre sent mitigating evidenc e, counsel does have the duty to investiga te and pr epar e for both the g uilt and the penalty phase. See Goad, 938 S.W.2d at 369-370.

To determine whether

trial counsel wa s ineffe ctive for failing to present mitigating e vidence
, the re viewing court must consider severa l fac tors. First, the revie wing court must analy ze the nature and extent of the mitigating e vidence that was a vailable but not pr esente d. Goad, 938 S.W .2d at 371 (c iti ng De uts c he r v . Wh itl e y , 9 46 F .2 d 1 44 3 (9 th Cir

. 19 91 ); Ste ph e ns v. Ke mp, 84 6 F .2 d 6 42 (1 1th Cir. 1988); State v. Adkins, 911 S.W .2d 334 (Tenn. Crim. App. 1994); Cooper v. State, 847 S.W.2d 521, 532 (Tenn. Crim. App. 1992)). Sec ond, the court must determine whethe r substantially simil ar mit ig a tin g e vid e nc e wa s p re se nte d to the jury in e ith e r the g uil t or

pe na lty ph a se of the pr oc e e din g s. I d. (c iti ng Atkin s v . Sing le tary , 9 65 F .2 d 9 52 (1 1thCir . 1 99 2) , c e rt . d e nie d, 51 5 U .S. 11 65 , 1 15 S. Ct. 2624 (1995); Cloz za v. Murray , 913 F.2d 1092 ( 4th Cir. 1990), cert. denied, 499 U.S. 913, 111 S. Ct . 1123 (1991); Melson, 722 S.W .2d at 421)). Third, the court must consider w hether there was such strong evidenc e of applicable ag g ravating fac tors that the mitigating evidenc e would not have aff ecte d the jury ’s determination. I d. (citing Fitzge ral d v. Thompson, 943 F.2d 463, 470 (4th Cir. 19 91 ), c e rt . d e nie d, 50 2 U.S. 11 12 , 112 S. Ct. 121 9 (19 92 ); El le dg e v. Du g g e r, 82 3 F. 2d 14 39 (1 1th Cir. 1987), ce rt. denied, 485 U .S. 1014, 108 S. C t. 1487 (1988)).

Trial counse l developed a mitigation theory

that was supporte d by b oth expert and lay witnesses. During the pena lty phase of the petitioner’s tria l, Dr. Z ag er te stified that the petitioner’s children “ meant eve rything” to the petitioner. She stated t hat he was the childre n’s primary car etake r38

and that he w as very

protec tive of them. Dr. Z ag er r ecog nized the relationship the petitioner shar ed with his daug hter who suf fer ed from cer ebra l pa lsy . Dr. Joe Mount testified that the petitioner was extremely conce rned about his children. He expressed his opinion that the petitioner ca red a g reat deal f or his children. D r. Mount also ac knowledg ed the pe titioner’s conc erns a bout his daug hter who suffe red f rom ce rebr al palsy . Randy He l m s, the petitioner’s f ormer e mploy er, de scribed the petitioner as a

g ood, depe n d ab l e em p l o y ee and convey ed how he had ca red f or his children. H e

a ff ir me d th e pe tit ion e r’ s lo ve fo r h is w if e a ndc hil dr e n. Th e pet it ion e r’ s si ste r, De bb ie Da vis
, described him as “a

wonder ful person at home, very helpful. He would help any body do anything.” Ms. Davis testified that the petitioner “just adore d the children,” noting that “ [h] e wa s a wonde rful daddy . He wa s just absolutelywonder ful.” She stated, “ He play ed with all of them. . . . He loved the m e qu a lly . H e lov e d th e m a ll. ” F ina lly , th e pe tit ion e r’ s mo the r s ta te d th at he t oo k c are of his children a nd loved t h em al l

. S he also re lated how the pe titioner took special ca re of his daug hter

w i t h c e r e b r a l p a l s y.

I n addition to this testimony , defe nse counse l elicited fa vorable char acte r information during

cross-e x amination of seve ral of the state’s witnesse s. Chris Dutton testi fied that the petitioner wa s

conce rned about his children, especia lly his daug hter with cer ebra l palsy

. During the examination of TB I Ag ent B yrd, def

ense c ounsel eli cited testimony that the petitioner e x presse d remorse over causing his wife’s de ath.

Th e pe tit ion e r p re se nte d s e ve n w itn e sse s d uring the pe na lty ph a se of the tr ia l. C on tr ary

to the pe tit ion e r’ s a sse rt ion s, tr ia l c ou ns e l di d intr od uc e e vid e nc e to r e bu t th e state ’s po rt ray a l of him as a “ monster.” At the post-conviction hea ring , the petitioner maintaine d that trial counsel did not

a de qu a te ly

e xplor e po te nti a l mi tig a tio n w itn e sse s a ndhe pr e se nte d n ume ro us wi tne sse s to demonstrate the type of mitig ating evidenc e which he believed should ha ve bee n prese nted during the pena lty

phase. The se witnesses testified r eg arding their perceptions of the petit ioner as a father and a pe rson. These witnesses we re c um u l at i v e and expounded upon testimony prese nted by

the

seven w itnesses p re s ented at the penalty phase. In this reg ard, w e conc lude that trial counse l ide nti fi e d a ndpr e se nte d te sti mon y su pp ortin g the re le va nt m iti g a tin g the me s. Th e on ly qu e sti on is whether trial counsel should have introduced more mitigating evidenc e. We cannot conc lude that

a re asonable probability exis ts tha t mor e testimony of this na ture would have le d the jury to conclude that the “ba lance of agg ravating and mitigating circ umstances did not war rant de ath.” Nic hols, 90 S.W .3d at 602.

Additionally
, we conclude that tria l counsel strate g ically elec ted not to present the te stimony of several witnesse s. Wi th reg ard to the te stimonyof Jackie and Da rlene Brittain, we ag ree with trial

cou n s el ’s as s es s m en tt h at an y v al u ab l e t es t i m o n y

t h at t h eyco u l d h av e p ro v i d ed fo r t h e p etitioner wa s outweig hed by

the dang er of

the s tate cr oss-examining these w itnesses as to prior thre ats made by the petitioner a g ainst the victim, including that he “w as g oing to g rind his wife up into hamburg er

me a t.” We a lso qu e sti on the imp orta nc e of se veral witne sse s, i.e
., Va le ne F or e ma n, Pa me la For eman, a nd Paula For eman, who indicated from their t est imony that they did not know the petitioner very well. Additionally
, some of t heir testim ony contra dicted the pe titioner’s claim that39

he alway s car ed for the c hildren whe n the victim was at wor k or at school. Ag ain, the petitioner ha s failed to e stablish that counsel’s per formanc e wa s deficie nt.

F ina lly , w ith re g ardto the c la ims of po st- c on vic tio n w itn e sse s th a t tria l c ou ns e l f ail ed to
cont ac t t h em reg arding their potential testimony , we a g ain re fer to the fac t that the defe nse tea m

c on sis te d o f thr e e inv est igat or s. No ne of the se inv e sti g a tor s w e re c a lle d to te sti fy a t th e po stc on vic tio n he ari ng

. Th e re is e vid e nc e that de fe ns e c ou ns e l w a s a wa re of the se po te nti a l w itn e sse s. For instance, D arle ne B rittain testified that trial counse l informed her that they would not call her

a s a wi tne ss b e c a us e of

the pe tit ion e r’ s “ ha mbu rg e r” state me nt; Jac kie B ri tta in state d tha t th e state ha d s ub po e na e d h im a s a w itn e ss a s h e ha d p ro vid e d in fo rm a tio n th a t th e pe tit ion e r h a d ma de thr e a ts ag ains t t h e v i ct im. He conc eded that trial counsel had ta lked with him at the courthouse. T he petitioner has f

ailed to establish that he is entitled to relief on this claim.

G. Tria l c ou ns e l f

a ile d to pr e se nt a

the ory of de fe ns e
The petiti o n e r

a s s e r ts th a t t

r ia l c o u n s e l f

a il e d to d e v e lo p a n d p r e s e n t a th e o r y o f d e f e nse. Specifica lly , he complains that trial counsel failed t o prese nt evidenc e of intox ication, evidenc e that the murder

was the r esult of a continuing dome stic dispute, or any other e vidence favor able to the petitioner. The petitioner’s alleg ation is not supported by either the rec ord of the po s t -c o n viction hearing or the re cord of

the petitioner’s tria l. Mr . For d testified that the def ense r elied upon a the ory that the petitioner wa s acting in an impulsi ve manner

. Trial counsel attempted to convince the jury that the petit i o n er was distraug ht, depre ssed, and intoxi cate d. Trial counse l arg ued that the petitioner’s be havior reflec ted an impulsi ve act as opposed to a pla nned ac t. Counsel asserted tha t the state ha d f

a ile d to me e t its bu rd e n of

pr ov ing pr e me dit a tio n a ndde lib e ra tio n b e y on d a

re a so na ble do ub t. D ur ing op e nin g arg ume nt, tr ia l c ou ns e l fo c us e d on the pe tit ion e r’ s do me sti c pr ob le ms w ith the victim, sugg ested that the petitioner went to the victim’s r esidenc e hoping f or a r econc iliation,

a nde mph a size d th e fa c t th a t th e pe tit ion e r d id n ot t ake a we apo n w ith him . Co un se l su pp orte d th is position t hroug hout their examination of the witnesses. These th eo ri es continued throug hout the penalty phase. The petitioner’s c laims are clearly not supported by the record. The petitioner has not presente d any

other e vidence that the defe nse wa s not adequa te. Ther efor e, the pe titioner has not

me t th e re qu ir e me nts to b e g ra nte d p os t- c on vic tio n r e lie f o n th is c la im.

III . W AI VE D O R P RE VI OU SLY DE TER M IN ED ISSU ES

Th e pe tit ion e r c ha lle ng e s th e c on sti tut ion a lity of Te nn e sse e ’s death p e na lty statut e s, contending that (1) the he inous, atrocious, or c ruel a g g ravating f act o r is unconstituti onally

vag ue and overbr oad; (2) the sentenc e of de ath ca nnot be fairly imposed and administered; and (3) the sentenc e of de a th u nc on sti tut ion a lly

inf ri ng e s u po n th e pe tit ion e r’ s r ig ht t o li fe . T he tr ia l c ou rt re je c te d th e se claims, finding them previously determined, waived, or

not supported with evidenc e. The trial c ourt

a lso de te rm ine d tha t th e c la ims ra ise d b y the pe tit ion e r h a ve be e n r e je c te d b y Te nn e sse e ’s app e llate

c ou rt s o n n ume ro us oc c a sio ns . We a g re e on a ll p oin ts.40

Wai ve r o f a

c la im o c c ur s w he n “ the pet it io ner pe rs on a lly or thr ou g h a n atto rn e y

fail[s] t o pr e se nt [the c la im] for de te rm inatio n in any pr oc e e din g be fo re a c ou rt of c omp e te nt j urisd ic tio n in wh ic h th e g ro un d c ou ld h a ve be e n p re se nte d. ” T. C.A . § 40 -30-1 06 (g). A gr ou ndfo r r e lie f i s “pre viously determined” if a court of competent jurisdiction ha s ruled on the merits after a full and fair he aring .” T.C.A. § 40-30- 106(h).

On direc t appea l, the petitioner cha lleng ed the constitutionalit y of t he heinous, atrocious, or

crue l ag gra v at i n g circ umstance. See State v. J on Doug las Hall, No. 02C01-9703-CC-00095, Ma dis on Cou nty

(T e nn . Crim. Ap p. Ap r. 29 , 1 99 8) , a ff ’dby , 8 S.W. 3d 59 3. Ac c or din g ly , th is c la im has bee n previously

deter mined.

Waiver is dete rm i n ed b y an objective standard unde r which a petitioner is bound by

the action or ina ction of his attorney . House v. S t at e, 9 11 S.W .2d 705, 714 (Tenn. 1995)

. Notwithstanding, the presumption that a ground not raised is waived is rebuttable . T.C.A. § 40-30- 106(g ). To re but the presumption, th e p et i tion must contain “a lleg ations of fa ct supporting eac h claim for r elief se t forth in the petition a nd alleg ations of fa ct explaining why eac h g round for

relief was not pre viou s l y p re sented in any ear lier proc eeding .” T.C.A. § 40-30- 104(e) . I n his amended petition for post-conviction re lief, t h e petitioner alleg ed that appe llate counse l was ineff ective f or failing to challeng e the constitutionalit y of Tenne ssee’ s death penalty scheme on direc t appea l. No evidenc e wa s prese nted at the post-c onviction hearing r eg arding this claim. Thus, the trial court wa s p r e c l u d e d f

r o m f i n d i n g a n y t h i n g o t h e r t h a n w a i v e r o f t h e s e c l a i m s

. S i m i l ar l y , i n h i s b r i e f t o th is

c ou rt , pe tit ion e r doe s not co uc h his ch a lle ng e s to the c on sti tut ion a lit y of the de a th p e na lty

sc he me in terms of appe llate counse l’ s fa i l u re t o raise the issue on appea l. Ag ain, we a re pr eclude d from

re a c hin g a ny

re su lt o the r tha n th a t f

ind ing that th e pe tit ion e r h a s w aiv ed th ese iss ue s b y faili ng to pr e se nt the se c la ims in h is p ri or pr oc e e din g be fo re a cou rt of c omp e te nt j urisd ic tio n. F or the se

re a so ns , th e pe tit ion e r i s n ot e nti tle d to re lie f o n th e se c la ims

.

CO NC LU SION

After a thoroug h revie w of the r ecor d and the law applicable to the issues raise d, we c onclude that th e e v id e n c e d o e s n o t p r e p o n d e r a te a g a in s t th e tria l c o u r t’ s f a c tu a l f in d in g s a nd that the petitioner has not shown that he rec eived the ineffe ctive assist ance of counse l or an unc onstitut ional
sentenc e. I n consideration of t he foreg oing and t he record as a whole, the judgme nt of the trial court is affirme d.

J OSEPH M. TI PTON, J UDGE