# FILED
March 30,1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

1999 SESSION

CHARLES EDWA

RD MEEKS, )

) Appellant, ) C.C.A. No. 01 C01-9807-CC-00295 ) vs. ) Grundy County ) STATE OF TENN ESSEE, ) Hon. Thomas W. Graham, Judge ) Appellee. ) (First Degree Murder ) ) FOR THE APPE LLANT: FOR THE APPELLEE: DOUGLAS TRANT JOHN KNOX WALKUP Riverview Tow

er, Suite 1502 Attorney General & Reporter 900 S. Gay Street Knoxville, TN 37902 KIM R. HELPER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 J. MICHAEL TAYLOR Distr

ict Attorney General Third & Market Str eets Dayton,TN 37321 THOMAS D. HEMBREE Asst. Distric

t Attorney Lawyers Buil ding Jasper, TN 37347

OPINION FILED: _____________
AFFIRMED
JAMES CURWOOD

WITT, JR., JUDGE

OPINION2 The petitioner, Charles Edward Meeks, appeals the Grundy Co u nty Circuit Court ’s dismissal of his petition for post-conviction rel ief. He alleges the ineffe ctive assistance of trial counsel in two respec ts. First, he alleg es that trial counsel was ineffective in failing to prepare and pre sent evidenc e at trial of the defendant’s lack of capacity for intent to commit murder and in fail ing to seek a jury instruction regarding such “di minished capacity.” Second, he asserts trial counsel
was ineffective because he declined t o make an openin g stateme nt to the jury. After hearing or al argume nt and revi ew ing the rec ord and th e applica ble law, we affirm the judgment of the lower c ourt.

The petitioner was

convicted on October 6, 1994 for the February 26, 1994 first degree murder of Charles Coffelt, the petition er’ s brother-in-law. He received a life sentence. His convictio n was affirm ed by this court, and his application for permission to appeal to the supreme court w as denied. See State
v. Charles Edward Meeks , No. 01C01-9506-CC-00170 (T enn. Crim. App., Nashville , Nov. 21,1995), perm . app . denied (Tenn. May 6, 1996).

The following excerpt

from this court’s opinion in the direct appeal of the petitioner’s convi ction discloses pertinent factual background in the cas e. In Janua ry, 1994, the defendant was shot in the forehead with a .22 caliber bullet. The bullet lodged in his r ightfrontal sinus and remained there for several months. On February 19, 1994, the defendant was admitted to the hospital to have an abscess treated that had formed around t he wound. He was discharged from the hospital o n Wed nesday, February 23, 1994, and w as given two Perc

ocets and a prescription for antibiotics. Percocet is a S chedule II drug used for moderate pain. On Saturday, February 26, 1994, the defendant was suffering from a severe headache. Ro se Meeks , the defendant’s ex-wife, c alled a doctor at the hosp ital where the defendant had been tr eated, who prescribed Percocet for the defendant’s pain. At about4:00 p.m., Ms. Meeks drove the defendant to the hospital where she picked up the prescription. Ms. Meeks t hen drove to a pharm acy a n d had the prescription filled. Between 6:00 and 8:30 p.m., she gave the paper bag containing the prescri ption bottle to the defenda nt, who immediately took

“some” of the drug. On the way home from the hosp ital, Ms. Mee ks stopped at a li quor st ore and the defe ndan t purchased some liquor.3 After arriving home at appr oximat ely 1 0:30 p.m., the defendant prep ared a mixed drink for himself and M s. Meeks. He a lso too k some more P ercocet . The defendant testified that he had taken a total of four to five Percocet s that da y. Shortly after they arrived home, Ms. Meeks invited Ann Coffelt and the victim, Charles Coffelt, over for a visit. Upon the C offelts’ arrival betw

een 11:00 and 11:30 p.m., the defendant mixed himself another drink and also fixed one for the victim. The defendant testified that he had had no other alcohol that day. After visiting for a few minutes, the defendant and the victim began arguing. Although the exact sequence of events was disputed at trial, the defendant testified that the victi m had struck him withhis fist “right between the eyes.” He testified that, after hitting him, the victim “came back at me again with an o ther righ t,” at which point the defendant produced a pistol and shot the v ictim twice. Although the defendant subsequently administered CPR to the victim, Mr. Coffelt died a short time later. The defendant wastaken into police custody at approximately 11:45 p.m., and gave a sworn st atement at approximately 2:00 a.m. on February 27, 1994. The TBI agent who took the statement testifiedthat the defendant was “very nervous” but “sober.” The defendant pled not guilty to first- degree murder a nd reli ed on selfdefense. At trial, the defend ant’ s counsel advised the cour t that he would be offering proof on the issue of voluntary intox

ication. At the conclusi on of closing arguments, defense counsel requested a jury instruction on the defense of involuntary i ntoxication. The trial court denied this request, finding that there was “not sufficient evidence in the record to warr ant that charge.” The trial court did, however, charge the jury with the law on voluntary intoxication. . . . The defendant testified that, on the day he shot th e victim, he had introduced both alcohol and Percocet int o his body. The surgic al resident who treated the defendant’s absc ess testified that the side effects of Percocet include light -headednes s , dizziness, and sleepiness, and that it produces result s similar to i ntox ication. He further testified that alcohol w ould magnify the effects of Percocet. The defend ant test ified th at he had gotten “a little dizzy” right before the victi m allegedly

hit him.

The post-conviction c

ourt co nducted an evidentiary hearing. Trial counsel testified that he relied upon the theories of self-defense and intoxi cation. He was aware that

the petitioner had a bullet lodged in his sinus cav ity and that he
was under the influence of both prescribed pain medication and alcohol. Counsel considered an insanity defense but withdrew it after receiving a psychological report that indicated the petitioner’s competen cy. As to his failure to make an openi ng argument, he stated (1) that he did not w ish to alert the

state to prepare rebuttal as to any i ssues the s tate may have overlook ed and (2) that in the past he had
ex perienced regret in making openi ng statements when he had difficul ty ba ckin g4

them up with proof. On this last point, h e stated that he did not know at the beginning of the trial

whethe r the petitioner

’s wife would testify and that, i n light of this uncertainty, he di d not know what he could prove.

The petitioner called as an expert witness Dr. Pamela Auble, a clinical neuropsychologist. She had examined the trial t ranscript, t he Erlanger Hospital reports from the defendant’s Februar y 1994 treatme nt, vario us letters and notes pertaining to the case, and the defendant’s pret rial statement. On August 15, 1996, she spent five hours at South e ast Tennessee Regional Corr ectional Facility interviewing

the petitioner and administering neuropsychologica l a nd personality tests to him. She attr ibuted t he defenda nt’s ac tions i n shooti ng Coffe lt to a combination of factors. She cited two lo ng-term factors -- a low IQ in the borderline retarded range and a “pretty low self esteem. ” As to the latter factor, s he opined that the petitioner “tends to be t ense and anxious and he g ets easily upset by anything that he perceives as criticis m.” She st ated tha t these two long-term factors combined with othe r factors of more recent derivation. She referred to the petitioner’s January 1994 g unshot injury and, noting that the petitioner’s medical records indicated the defendant had a seizure while in the hospital, she opined that “he probably had at least like a concussion.” She testified that “up to a year after
a concuss ion peop le exhi bit sig ns of p oor r easoning and memory, they ’re kind of addled.

. . . [T]he post concussi on syndro me would b e someth ing that wo uld have been influencing his beh av ior at the time of the killi ng.” She opined that the defendant’s low mental functioning w ould be wo rsened by the “post concus sion syndrome.”Further, she cited the headache pain the defendant was experiencing on the night of

the shooting and said, “Y our being in pain makes you perceive the world differently. You don’t reason about things as well, you don’t think as clearly, you’re more easi ly upset.” Another contr ibuting factor was the c ombination of excessive amounts of Perco cet pain m edicatio n and alco hol which wo uld have “further compromised or effected [sic] his reasoning, his memory,his ability to think about situations to control hi mself, and to ot h erwise act in a reas onable fashion.”5

Finally, Dr. Aub le opined that the petitioner’s emotional stress at the time of the shooting was a contributing factor. She referred to his rec ent hea d injury, his marital difficulty, and the blow to his head from Coffelt’s fist. When asked by postconviction counsel whether she had an o pini o n as to the petitioner’s capa city to form specific intent to shoot Coffelt, she responded, “Give n all the things that were going on with him at that time, and his state of mind, it is my opinion that he did not have the capacity to form a specific intent, a cool, premeditat ion at that time.”

On cross-examination, D r. Auble agreed with the pretrial determinations t hat the defendant was competent and th at an insanity defense could not have been supported.

The petitione r t estified at t he hearing.He said, “ Mr. Coffelt a nd me both was drunk and I’m sure that if he hadn’ t a been d rinking he never would have hit me, and I’m sure that if I hadn’t a been drinking and on medicati on I would not have done what I done.” Despit e this testimony, he

maint ained that he did not testify truthfully at trial. He said he did not remember what happened on the night of the shooting and that he testified according to his coun sel’s instructions.

In dismissing the petiti on, the post-conviction court found that, if the failure to present “diminished capa city” evidence w as deficient performance of counsel, it was not

prejudicial. The

court remarked that the jur y was aware of the petitioner’s existing head injury, his use of Percocet and alcohol and their effects, and the petitioner’s illi

teracy. The judge commented that the jury received pertinent information a bout “dim inished c apacity” t hrough th e volunta ry intoxication instructio n and through the general ins tructions on the burden of proof. The court said that the pretrial mental examination did not supp ort an insa nity defense and did not alert counsel to a “dimini shed capacit y” claim. The court found the petitioner to be “less than credible” as a witness.1 There is no allegation that trial counsel deficiently performed in the sentencing of the defendant. There wa s no sentencing hearing.The state sought neither the death penalty nor a life sentence without the possibility of parole. Therefore, the jury’ s finding of guilt of first deg ree murder resulted in the trial court automaticall

y sentencing the defendant to i ncarceration for life. See Tenn. Code Ann. § 39-13-208(c) (1997). 6 As to the failure to make an opening statement, the lower court ruled that the issue provided no basis for post -convict ion relief because trial c ounsel made a tactical decision to w aive the statement.

For post-convictionpetitionsfiled after May 10, 1995, “[t] he petitioner shall have the burden of proving the allegations of fact by clear and conv incing evidence.”Tenn. Ann. Code § 40-39-210(f) (1997). The post-conviction court’s findings of fact are afforded “the weight of a jury ve rdict and are conclusiv e on appeal unless the evidence in the re c ord preponderates against those findings.” State v. Henley , 960 S.W.2d 572, 578 (Tenn. 1997), cert

. denied - - - U.S. -- - , 119 S. Ct. 82 (1998). As a appellate court, we do not reweigh or reevalu ate the evidence, nor do

we “substitute our

inferences for those drawn by the trial judge.” Id

. at 579. The burd en is o n the appellant to demonstrate that the evidence preponderates against the post -conviction court’s

findings. Id

.

I. The petitioner alleges that trial counsel w as ineffective because he failed to use p roo f of the defendant’s “diminished capacity” to intend to kill. 1 “Diminished capacity” is not a defense in Tennessee. State v. Phipps , 883 S.W.2d 138, 149 (Tenn. 1994). Our supreme court has discouraged the use of the phrase “diminished capacity” because it poorly reflects the proper use of the evidence to “negate the existence of the culpable mental state req uired to establish the criminal offense.” State v. Hall , 958 S.W.2d 679, 690 (Tenn. 1997), cert

. denied , - - - U.S. -

- - 118 S . Ct. 2348 (1998). In the pres ent case, the petitioner clai ms trial counsel
was remiss in not presenting certai n evidence that would negate the intent or premeditation and deliberation elements of first degree murder.7 We affirm the trial court’s denial of post-conviction reli ef on this issue, although we base our decision on different grounds than the trial court used. The trial court found that, if trial counsel perfor med deficiently, the

record established no prejudice. On the other hand, we hold tha t the record fails to establish deficient performance.

When a defendant use s expert ps

ychiatri c testimo ny to prove he or she lacked the ca pacity to intend the crime, “the psychiatric testimony must demonstrate that the defendant’s inability t o form the requisite culpable mental state
was the product of a mental disease or defect , not just a particular emotional sta te
or mental condition.” Hall , 958 S.W.2d at 690 (emphasis added). In Ha ll , the defendant asserted trial court error in dis allowin g his ps ychiat ric ex

pert to t estify about his “diminished capacity ” to intend murder. The defense w anted to prove that Hall’s “consumption of alcohol woul d have had [ a n effect] on him with his ty pe of person ality” and that he was under “emotional distress and stress.” Id

. At th e sentencing hearing, the expert testified Hall had“a borderline personality disorder and that such people could have bri ef episodes ofrage during ‘temporar y states of mental illness.’” Id . at 691. Our supreme court r ejected Hall’s claim and held that “[t]hough expert testimony is admissible to show that because ofa mental disease
or defect, a defendant lacked the capa ci ty to form the mental state req uired to constitute the offense. . . , the testimony in this case did not meet tha t s tandard.” Id . at 692.

The evidence proposed by H all failed in three res pects . First, the expert did not propose to testify that Hall “lacked the ca pacity to premeditate and deliberate the killing

because of a mental disease or defect.” Id . at 691. Second, the expert spoke only abstractly and generally about ty pical persons with per

sonality t ypes s imilar to Hall’s ty pe, instead of discussing “ the capacity of the particul ar defendant on trial.” Id . Third, the “personality type and character

traits which [the expert] gleaned from test results and a single three hour inter v iew” do not equate8

to proof of “a defendant’s capacity to form the mental intent.” Id

. (italics in original). The court quoted with appr oval Judge Tipton’s comment that The mere fact that one is more apt, by personal ity type, to become emotiona l in response to a particular stimulus does not provide a means for that person to be absolved fr

om the same

responsibility to w

hich the law holds another who might be less apt to respon d as passionately to the same stimulus. If it did, then each person would be the law unto himself or herself based solely upon his or her particular personality makeup. Id

. at 692 (quoting State v. Leroy Hall, Jr. , No. 03C01-9303-CR-00065, sli p op. at 18 (Tenn. Crim. App., Knoxv ille, Dec. 30, 1996)).

In the present case, we are unable to conclude that the testimony of Dr. Auble would be admissibl e under the standard of Hall . Although Dr. Auble did opine that the petitioner lacked the capaci ty to specifically intend or to premeditate and deliberate the killing , she did not opine that his i nc apaci ty was because

of a mental disease or defect.

Fur thermore, we cannot glean from the record that any such incapacity

is based on mental disease or defe ct. Dr. Auble based her findi ng of incapaci tyon a combination of factors. However, severe headache pain, stress
over marital discord, low self-es teem, and antipathy to criti cism are either episodic in nature, m anifestations of emotional responses, or simply suggestive of personality

type. As such, these factors do not i mplicate mental disease or defect. See Hall , 958 S.W.2d at 691-92. Voluntary intoxi cation, though a factor cited by

Dr. Auble, was raised at trial and explained to the

jury. The remaining fact ors are (1) the post concussion syndrome and (2) the defendant’s low IQ. We discuss these factors in more detail.

Dr. Auble’s testimony about “post concussion syndrome” was based upon a reference in a hospital r ecord that the petitioner had a seizure, “andso he probablyhad at least like a concussion .” (Emphasis added.) The facts underlying the opinion that the petitioner act ually sustained a concus sion indicate a lack of trustw orth iness. See Tenn. R. Evid. 703. Had thi s evidence been presented, the2 The phrases “mental disease” and “mental defect” are not listed as

defined terms in American Psy chiatric Glossary

(American Psychiatr

ic Press, 7th ed.). Neither are they

listed in the index i n American Psychiatri c Ass’n, Diagnostic and Statistical Manual of Mental Disorders, Number 4, Diagnostic Criteria (1995). 9 trial court would have been within its discretion in “disallow[ing] testimony in the form of [su ch] an opinion or inference.” Id . Additionally, the opinion about “post concussion syndrome” relates to “people [who] exhibit s igns of poor reasoning and memory” up to a ye ar after a concussion. “They ,” Dr. Auble said, “don’ t think as clearlyas they used to.” Based upon these findings, she opined that p o st
concuss i on syndrome would be “something that would have been influencing his behavior” thr ee years earlier when the shooting occurred. This testimony is reminiscent

of the proposed expert testimony in Hall . Generalizations about typical reactionsare “not relevant to the capacity of the particular defendant on trial.” Hall , 958 S.W.2d at 691. From all of the above, w e conclude Dr. Auble’s tes timony about “post concussion syndrome” fail ed to establish an incapacity that was derived

from mental disease or defect.

Next, we assess Dr. Auble’s testimony about the petitioner’s “low IQ

. . . in the borderline ret arded range.” We have review ed the trial record from the defendant’s direct appeal and agree that the jury did not hear any evidence about the defendant’s low IQ.

First, we note that the terms “mental disease” and “mental defect” are phrases of legal import and do not hav e currency in modern ps ychological parlance. 2 Therefore, we look to legal scholarship to determine whether mental retardation is either a ment al disease or mental defect.
Our legislature has define d “mental diseases or defect” as follows: Insanity - (a) Insanity is

a defense to pros ecuti on if, at the time of such conduct, as a result of mental disease or defect, the perso n lacked substantial capacity either to appreciate the wrongfulness of the person’s conduct or to conf orm that conduct to the requ irement s of law. (b) As used in this section, “ment al disease or

defect” does not include any abnormality

manifested only by repeated cri minal or otherwise anti social10 conduct. Tenn. Code Ann. § 39-11-501 (1991) ( amended 1995) Definitions- The fol lowing def initions apply in [s ex o ffenses] unless th e context otherwise r

equires: (3) “Mentally

defective”

means that a pe rson suffers fr om a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of such person’s conduct. Tenn. Code Ann. § 39-13-501(1991 ) ( amended 1995). This court has approv ed
a jury charge as a correc t statem ent of th e law whic h defined “mental disease or defect” as “any ab normal c onditio n of a

mind which substantiall y affects mental or emotional processes and impairs the behavior controls.” State v. Max , 714 S.W.2d 289, 295 (Tenn. Crim. App. 1986).

These definiti ons do no t exclude mental retardati on as a form of “mental disease or

defect.” In at least one case, we have recognized the legitimacy of ment al retardation as a facet of an insa nity claim. State v. Haun , 695 S.W.2d 546 (Tenn. Crim. App. 1985). In Haun , this court held t hat t he trial court erred in disallowing

defense proof that Haun, a s a premature infant, suffered “an hypoxic episode, depriving the infant of oxygen and resulting in brain damage.” Haun , 714 S.W.2d at 549.

In Penry v. Lynaugh , 492 U.S. 302, 109 S. Ct. 2934 ( 1989), the SupremeCourt considered the consti tutionality of subjecting mentally-retarded defendants to capital punishment, especially in light of that court’s earlier ruling that insane persons may not receiv e the death penalty. Id . at 334, 109 S. Ct. at 2955 (citing Ford v. Wainwright , 477 U.S. 399, 410, 106 S. Ct. 2595, 2603 (1986))

. In the context of whether the death penalty could be imposed, the court ex ami ned the nature of mental retardation vis-a-visinsanity. The court said, “It was well s ettled at common law that ‘idiots,’ together with ‘lunatics,’ were not subject to punishment forcriminal acts . . . .” Id . at 331, 109 S. Ct. at 2953. Idiocy, the court said, was “‘a defect of understanding from the moment of birth.’” Id . (emphasis added). It w as a term “gene rally used to d escribe persons who had a total lack of reason or3 We are aware that in both Penryand State v. Laney , 654 S.W.2d

383 (Tenn. 1983), the appellate cour t’s task was to determi ne whether the death penalty could be imposed upon a ment ally retarded defendant wi thout violating constitutional provis ions against cruel and unus ual punishment. On this issu e, the courts were rev

iewing only the s

entencing activities

of the lower courts. Nevertheless, we be lieve these analyses are germane to the evidenc e question before us in the present case. U nder Tennessee law, the defense of ins anity and the admissibility of ex pert evidence to negate a mens rea element of the crime are both founded upon the presence of “me ntal disease or defect.” See Tenn. Code Ann. § 39-13-501(a); Hall , 958 S.W.2d at 690. In Laney , the Tennessee Supreme Court was faced w ith the “mental disease or defect ” formulation because it was c ontained in the prescribed mitigating factors for capital cases. Laney , 654 S.W.2d at 389 (quoting former Tenn. Code Ann. § 39- 2404(j)(8) (provi ding for jury consider ation that “[t]he capacity of the defendant to appreciate the wrongfulnes s of his conduct or to conform to the requirements of law was substantial ly impaired as a resul t of mental disease or defect or intoxication whic

h was insufficient to establi sh a defense to the crime but whi ch substantially affected his j udgment)). In Penry , the high court’s inq uiry into the legitmacy of capital puni shment for mentally retarded defendants led it to fathom the nature and meaning of the “defect” a spect of the traditional insani ty defense, in view of Penry’ s mental retardation and the pro hibition against imposing death penalties on insane defendants. See Ford v. Wainwright , 477 U.S. 399, 106 S. Ct. 2595 (1986). Because “mental defect” is the rubric thr ough which mental retardation is embraced within the insanity defense to criminal liability, the court proceeded to explain that the legal phrase “mental defect ” is linked traditionally with only the sev

erest forms of mental retardation. Thus, in Penryand Laney , the courts explained or illustrated the meaning of “ment al defect,” the critical phrase for this court’s tas k in the present case. Whether a court is admitting evidence, determining g uilt, or in some cases, i mposing a sentence, see Laney , 654 S.W.2d at 389, mental retardation enters into the court’s consideration through the threshold of mental defect. 11 understandin g, or an inability to distinguish between good and evil.” Id . at 331-32, 109 S. Ct. at 2954. This common law aversion to punishing

idiots or lunatics w

as the matrix of the insanity defense, “which today includes ‘mental defect’ as well as ‘mental disease” as part of the legal definition of insanity,” and the “notion” of idiocy bears some relation to the modern definit ion of mental retardation.” Id

. at 332, 109 S. Ct. at 2954. However, the court pointed out, the common law aversion to punishing “idiots” was li mited “to persons of such severe disability that they lacked the reasoning capacity to form criminal intent or to understand the difference between good and evil .” Id . at 333, 109 S. Ct. at2954 (em phasis ad ded). “Id iocy” referred to “the most retarded of persons, corresp onding to what is called ‘pr ofound’ and ‘severe’ retardation today.” Id . The Penrycourt concluded that menta l retardation alone, “apart from any individualized consideration of the [defendant’s] personal responsibility,” does not exempt a defendant from crim inal sa nctions, including the death penalty

. Id . at 340, 109 S. Ct. at 2958. 312 Mental retardation is defined as: A. Significant subaverag e intellectual functioni ng: an IQ of approximately 70 or bel ow on an individually administered IQ test

. . . [and] B. Concurrent

deficits or impairments in present adaptive functioning (i.e., the person’s effectiveness in meeting the standards expec ted for his or her age b y his or h er cultural group) i n at least two of the followin g areas: communication, self-car e, home l iving , social/interpersonal

skills, use of community re s ources, self-direction, functional academic skills, work, leisure, health, and safety [and] C. The onset is before age 18 years. American PsychiatricAss’n, Diagnostic and Statistical Manual of Mental Disorders, Number 4, Diagnostic Crit

eria 50 (1995). IQ scores f rom appr oximatel y 70 down to 5 0-55 suggest mild retar dation; 50-55 down to 35-40, mode rate ment a l retar dat ion; 35-40 down to 20-25, sev ere mental retardation; and belo w 20-25, profound mental retardation. Id

.

Dr. Auble characterized the petitioner

as borderline mentally

retarded. She did not sp ecify the adaptive functioning areas in which she found him deficient, but his illiteracy may

indicate a d eficiency in “functional ac ademic skills.” That deficiency along with, for instance, a defici ency in communication and an IQ score of 70 apparently would q ualify the petitioner as borderline mentally

retarded. It can be seen readily that such a classification does not mean the petitioner is incapable of conducting many life activities.

In Penry , the defendant’s IQ was between 50 and 63, and at 22 years of age, he was character ized as having the ment al age of a 6 1⁄2-yea r-old person. “Penry’s social maturity, or ability to function in the world, wasthat of a 9 or 10-yearold.” Penry , 492 U.S. at 307-08, 109 S. Ct. at 2941. Nev ertheless, the Supreme Court observed that Penry w as found competent to stand trial, and the high court held that Penry was

subject to the ultimate criminal s anction. In effect, he was not hampered by any

“mental disease or defect.” Id

. at 338-40, 109 S. Ct. at 2957-58; accord State v. Laney , 654 S.W.2d 383 (Ten n. 1983) (defendant diagnosed as “borderline mentally r

etarded” with IQ of 72 subject to death penalty).13 In the present case, Dr. Aubl e concurred in the pretr ial find ings that the petitioner was competent to stand trial and was not a candidate for an insanity defense. Nothing in the record suggests that the petitioner lacked the “capacity to appreciate thewrongfulness of [his] actions.” See Penry , 492 U.S. at 333, 109 S. Ct. at 2954. Therefore, the record fails to establish that, because of mental disease or defect, th e petitioner lac ked the capacit y to intend the kill ing.

We have considered whether the record est abli shes the required mental incapacity based upon the ag gregate of the v arious factors. Dr. Auble testified that some of the factors exacerbated the others. However, her opinion of incapacity

is in no way gr

ounded upon the findings and exposition of mental disease
or defect. Without such a foundation, Dr. Auble’s tes timony did not surpass the threshold for the adm is sion of expert evidence to negate a criminal mens rea element. See State v. Leroy Hall, Jr. , No. 03C01-9303-CR-000 65, slip op. at 17 (Tenn. Crim. App., Knoxville, Dec. 30, 1996) ( expert ev i dence that personality makeup would cause the de fendant to act in a certain way “misleads the jury regarding the defendant’s mental state because it . . . bears no releva nce to whether the defendant was capable of forming the requisite mental state” ), a ff ’d , 958 S.W. 2d 679 (Tenn. 1997); State v. Shelton , 854 S.W.2d 116, 122 (Tenn . Crim. App. 1992). For this reason the recor d does not establish that counsel was ineffe ctive for failing to mount an a ttack of this nature on the req uired mental element of first degree murder.

Because t he record in this post-c onviction case does not es tablish tha t trial counsel was ineffective in failing to assert a broad attack upon the def endant’s capacity to intend murder, we discern no basis in the record for concluding that the trial court should have gener ally instructed the j ury about such capacity . At trial, the defendant raised the narro w “capacit y” issue of voluntary i ntoxication, and the tria l court fully and adequately instructed the jury on this issue. Moreover, the trial court properly instructed the jury as to the state’s burden of proving the elements of the14

offense beyond a rea sonable doubt. The record evi nces no basis for further instructing the jur

y about the defendant’s lack of capacity to intend first degree murder. On this issue, i neffective assistance of counsel has not been shown.

II. In the pe titioner’s second issue, he asserts ineffective assistance because trial counsel failed to make an opening statement. Tri al counsel testified that he did not wish to rais e issues via an opening statement which he might not be able to prove, especially in view of the uncertain status of the petitioner’s wife as a witness, and he did not wish to tip his defensive hand to the state. The trial court deferred to this decision as trial strategy after hearing trial counsel’s testimony. The evidence does not pre ponder ate against this finding. Trial counsel will not be second-guessed in matters of strategy when it

appears counsel made an informed choice based upon adequate prepar ation. Henley , 960 S.W.2d at 579; Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982).

III.

The judgment of the trial court i s affirmed.

______________________________ JAMES CURW OOD WIT T, JR., Judge

CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ JOHN EVERETT W ILLIAMS, Judge