IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 2, 2010 Session

VINCENT SIMS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-25898 Chris Craft, Judge

No. W2008-02823-CCA-R3-PD - Filed January 28, 2011

The capital petitioner, Vincent Sims, appeals as of right from the October 1, 2008 order of

the Shelby County Criminal Court denying his initial and amended petitions for postconviction relief. On appeal, the petitioner claims that the trial court erred in denying relief

because: (1) trial counsel was ineffective; (2) appellate counsel was ineffective; and (3) the

imposition of the death penalty in this case was unconstitutional. After a careful and

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laborious review of the record, we conclude that there is no error requiring reversal.

Accordingly, we affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J.C. MCLIN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, and

ALAN E. GLENN, JJ., joined.

Paul Morrow, Jr., and Daniel E. Kirsch, Nashville, Tennessee, for the appellant, Vincent

Sims.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

Frank Borger-Gilligan, Assistant Attorney General; William L. Gibbons, District Attorney

General; and John Campbell, Assistant District Attorney General, for the appellee, State of

Tennessee.

OPINION

 We have re-ordered and condensed the separately stated issues on appeal, as set forth in

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petitioner’s initial brief, to those set forth above.
Background

In 1998, a jury found the petitioner guilty of especially aggravated burglary and first

degree premeditated murder in connection with the shooting death of Forrest Smith. The

petitioner’s trial began on April 27, 1998, and ended on May 1, 1998. The proof presented

at the guilt phase of the petitioner’s trial, as set forth in our supreme court’s opinion

affirming the petitioner’s convictions and sentences, established the following facts:

On April 5, 1996, Forrest Smith arrived home from work around 10:00

p.m. He found the [petitioner], Vincent Sims, and [the petitioner]’s cousin,

Brian Mitchell, in the process of burglarizing his home. Mitchell testified that

[the petitioner] had called him earlier in the evening asking for help in moving

a big screen television from a house [the petitioner] had burglarized. [The

petitioner] picked up Mitchell in a borrowed Toyota Camry belonging to [the

petitioner]’s girlfriend. They drove to Smith’s house, parked the car under the

carport, and loaded the big screen television in the trunk. [The petitioner] and

Mitchell were in the house disconnecting a computer when Smith arrived.

Smith parked his Jeep in the driveway to block the other vehicle’s exit. When

Smith entered the house, [the petitioner] and Mitchell ran outside but were

unable to get the Camry out of the driveway. [The petitioner] went back into

the house while Mitchell remained outside.

Mitchell testified that he heard [the petitioner] yelling at Smith to give

[the petitioner] the keys to the Jeep. Mitchell then heard eight or nine gunshots

fired inside the house. [The petitioner] returned carrying Smith’s .380 caliber

chrome pistol and the keys to the Jeep. [The petitioner] was holding his side

and told Mitchell that he had been shot. [The petitioner] threw Mitchell the

keys to move the Jeep, and the two fled the scene in the Camry. Mitchell

testified that [the petitioner] told him that [the petitioner] and Smith had fought

over the .380 caliber pistol and that [the petitioner] had shot Smith. [The

petitioner] told Mitchell that [the petitioner] had to kill Smith because Smith

had seen [the petitioner]’s face. [The petitioner] instructed Mitchell not to talk

to anyone about what had happened and later threatened Mitchell’s life after

they were in custody.

Smith’s girlfriend, Patricia Henson, arrived at the home shortly after the

shooting, sometime between 10:00 and 10:30 p.m. Smith was lying on the

kitchen floor in a pool of blood, but he was conscious and asked Henson to call

911. When asked what had happened, Smith was able to tell Henson and

Officer Donald Crowe that there had been a robbery and that Smith had been

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shot in the head. Officer Crowe testified that Smith was bleeding from several

parts of his body, appeared to have been shot more than once, and was in

severe pain. After receiving treatment by paramedics on the scene, Smith was

transported to the hospital. He died approximately four and a half hours later.

In the meantime, [the petitioner] took Mitchell home and picked up [the

petitioner]’s girlfriend, Tiffany Maxwell, from work after she clocked out at

11:05 p.m. Maxwell testified that [the petitioner] was visibly upset and had

blood on his shirt. Upon inquiry, [the petitioner] told her that someone had

attempted to rob him. Maxwell also noticed that he had a “deep scar” injury

on his side, which she treated herself after [the petitioner] refused to go to the

hospital. The following morning, [the petitioner] and Maxwell took

Maxwell’s car to be washed and detailed. Maxwell then noticed that the

license plate frame on her car was broken. [The petitioner] and Maxwell

attended an Easter Sunday church service the next morning. According to

Maxwell, [the petitioner] behaved normally with nothing unusual occurring

until the following Tuesday when [the petitioner] was arrested at Maxwell’s

place of employment.

After [the petitioner] and Mitchell were in custody, [the petitioner] gave

Mitchell a letter to deliver to Mitchell’s attorney. In that letter, [the petitioner]

recalled the events surrounding the burglary and murder. [The petitioner]

alleged that Smith had fired at [the petitioner] and Mitchell as they fled the

house. Mitchell testified that this portion of the letter was untrue. Mitchell

maintained that no shots were fired until [the petitioner] went back inside the

house to get Smith’s keys to the Jeep. [The petitioner] also contended in the

letter that Smith was accidentally shot in the head while the two struggled over

the .380 caliber pistol.

Significantly, however, the bullet removed from Smith’s brain was a .22

caliber bullet. The police also recovered fragments from three or four .22

caliber bullets at the scene. Mitchell testified that he had seen [the petitioner]

with a long barrel .22 caliber revolver with a brown handle earlier in the

evening. Although Mitchell did not see [the petitioner] with the revolver

during the burglary, he did see something protruding under [the petitioner]’s

shirt. In addition to the .22 caliber bullets, the police found a bullet fragment

from a probable .380 caliber bullet and five fired .380 caliber cartridge cases

at the scene. Officers also recovered from Smith’s carport a beeper that was

later identified as belonging to [the petitioner] and the broken license plate

frame from Maxwell’s car.

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Forensic pathologist Wendy Gunther performed the autopsy on Smith.

She testified that Smith suffered a gunshot entry and exit wound to his head.

Part of the bullet entered Smith’s brain and lodged in his skull above his right

eye, and the other piece exited in front of his right ear. Smith also suffered

multiple blows to his head, neck, shoulders, arms, sides, back, and buttocks.

The bruising indicated that Smith had been struck with a long, narrow, rodshaped object at least a quarter inch wide. Dr. Gunther estimated that Smith

had been struck at least ten times but probably many more. She stated that the

blows were very hard as evidenced by the immediate bruising on Smith’s

body. Smith suffered at least six blows to his head, one of which fractured his

skull at the back of his head. Dr. Steven Symes, a forensic anthropologist,

opined that this head injury was inflicted after the gunshot wound to Smith’s

head. Although the gunshot wound to the head was the worst injury and would

by itself have caused death, Dr. Gunther testified that the cause of death was

a combination of all of the injuries.

State v. Sims, 45 S.W.3d 1, 5-7 (Tenn. 2001).

Based on these facts, the jury convicted the petitioner of especially aggravated

burglary and first degree premeditated murder. The proof presented at the penalty phase of

the petitioner’s trial, as set forth in the supreme court’s opinion, established the following

facts:

The State presented evidence through Jennifer Gadd, an employee with the

Criminal Court Clerk’s Office, that [the petitioner] had two prior convictions

for aggravated assault. The State also submitted all evidence from the guilt

phase in support of its position in the penalty phase.

The defense presented five mitigation witnesses, [the petitioner]’s

mother, father, brother, and two aunts. These family members testified that

[the petitioner] was a good child who never got into trouble until sometime in

his teens. They also testified that [the petitioner] had close relationships with

his family. One of his aunts, Mary Gardner, worked at the Shelby County

Correctional Facility and testified that [the petitioner] was a model prisoner

while incarcerated there. On cross-examination the State was allowed to

question the mitigation witnessesregarding [the petitioner]’s prior convictions

for theft in 1990, aggravated assault in 1991, and aggravated burglary in 1993.

Id. at 7.

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At the conclusion of the penalty phase, the jury found that four aggravating

circumstances were present, that these aggravated circumstances outweighed any mitigating

circumstances, and that the trial court should sentence the petitioner to death for the murder.

The aggravating circumstances found by the jury were: (1) the petitioner was previously

convicted of one or more felonies whose statutory elements involve the use of violence

against the person; (2) the murder was especially heinous, atrocious, or cruel; (3) the murder

was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or

prosecution of the petitioner or another; and (4) the murder was committed during the

commission of a burglary or theft. See Tenn. Code Ann. § 39-13-204(i)(2), (5), (6), (7)

(1997). The trial court sentenced the petitioner to twenty years imprisonment for the

especially aggravated burglary, and the jury sentenced him to death by electrocution for the

first degree murder. The court ordered that the especially aggravated burglary sentence run

consecutively to the death sentence. This court affirmed the petitioner’s convictions and

sentences on direct review, and the Tennessee Supreme Court affirmed this court’s opinion.

See State v. Vincent C. Sims, No. W1998-00634-CCA-R3-DD, 2000 WL 298901, at *1

(Tenn. Crim. App. at Jackson, Mar. 14, 2000), aff’d, 45 S.W.3d 1 (Tenn. 2001), cert. denied,

534 U.S. 956 (2001).

Post-Conviction Proceedings

On November 15, 2001, the petitioner filed a pro se petition for post-conviction relief

challenging his convictions and sentences and raising several grounds for relief. Upon

consideration of the petition, the trial judge appointed the Office of the Post-Conviction

Defender as counsel of record for the petitioner and directed appointed counsel to file an

amended petition. Post-conviction counsel filed the amended petition on August 8, 2002,

and the state filed its response on September 3, 2002. The post-conviction court held an

evidentiary hearing on the claims raised in the initial and amended petitions on March 17-20,

2003, September 17, 2004, and November 5, 2004. On October 1, 2008, the trial court

entered an order denying all claims raised in the initial and amended petitions.

Evidence Presented at the Hearing

Trial counsel testified that he received his law degree in 1975 from Memphis State

University, now known as the University of Memphis. His undergraduate degree is in

psychology. He had previously worked for the criminal court clerk’s office in Memphis. He

became a private practitioner upon becoming licensed. From 1975 until 1995, about onequarter of his cases were criminal. During that time, he handled several major felony cases,

including two death penalty cases which resulted in life sentences. He testified that he had

probably handled less than ten capital and noncapital first degree murder cases in the years

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leading up to 1995. He had also attended training in capital litigation both at a conference

given by the Tennessee Association of Criminal Defense Lawyers(TACDL) in Nashville and

at a local seminar.

Trial counsel testified that he had been working part-time for the capital defense team

at the Shelby County Public Defender’s Office since May of 1995. He continued to maintain

his private practice while working for the public defender’s office. His overall criminal

caseload while working as a member of the capital defense team remained constantly at 25-

30%. On cross-examination, trial counsel stated that the public defender’s office hired him

to work on the capital defense team in 1996 and that the only part-time work he had done for

the public defender’s office before that time had been a substitute for another attorney on

preliminary hearings in general sessions court in either 1977 or 1978.

During the petitioner’s trial, two other full-time attorneys were on the capital defense

team. The capital defense team also had three factual investigators and three social

investigators; however, trial counsel later testified that only two “mitigation people” were on

the team. By the end of his first year on the team, trial counsel had seven cases assigned to

him as lead counsel and approximately six cases in which he functioned as second chair. His

case load steadily grew over time, and by the time the court appointed him to represent the

petitioner, trial counsel approximated that he was lead counsel on ten cases and second chair

on eight cases. The other members, by virtue of their full-time status on the team, had larger

case loads than trial counsel. Trial counsel estimated that, at any given time, the entire team

handled close to forty cases. Not all cases handled by the team were death penalty cases.

The team handled any cases in which the death penalty was a possibility. They would remain

on cases, even if the prosecution decided not to seek the death penalty, if more than thirty

days had elapsed since the date of arraignment in criminal court. Although he was a parttime member of the capital defense team, trial counsel’s work as lead counsel on any given

case was a full-time endeavor until they concluded the case. Trial counsel testified that his

workload during his representation of the petitioner was not such that he could not devote

sufficient time to the case. On redirect examination, trial counsel acknowledged that the

public defender’s office paid him a salary for his part-time work on the capital defense team,

and not by the hour. Trial counsel’s time records on the case showed that he spent 72 hours

of in-court time and 195 hours of out-of-court time working on the case.

Trial counsel became lead counsel for the petitioner in April 1996 after the petitioner

had already given a statement to the police on April 9, 1996. Consistent with the manner in

which the capital defense team operated at the time, trial counsel’s supervisor initially

received the case on April 28, 1996, visited with the petitioner at the jail to inform him about

who would be handling his case, and subsequently assigned trial counsel as lead counsel.

The supervisor also assigned co-counsel, a factual investigator, and a mitigation investigator.

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Trial counsel and co-counsel conducted their first intake interview with the petitioner on May

8, 1996. Trial counsel’s responsibilities after that time were to direct the investigators

assigned to the case, represent the petitioner at the preliminary hearing, and continue

representation in criminal court. The investigators were free to interview anyone they

deemed necessary after the initial intake interview, but trial counsel would also give them

specific requests to investigate different avenues as he saw fit. Trial counsel’s duties related

to the guilt phase of the trial, and the mitigation investigator’s responsibility was to develop

the case for mitigation in the penalty phase. Trial counsel was responsible for interviewing

potential defense witnesses for the guilt phase and obtaining any relevant documents that

would help the petitioner’s defense. The mitigation investigator’s duties were to obtain the

social background records on the petitioner and speak with family members and potential

witnesses for the penalty phase.

Trial counsel and co-counsel met at least monthly to review the status of the case and

to discuss what role they were each going to take at trial, what avenues they needed to

pursue, and the areas in which they were having problems. The entire capital defense team

held these meetings monthly, and they discussed their various cases and sought insight from

each other. These meetings usually lasted two hours. Trial counsel testified that it was

possible that co-counsel had only met and talked with the petitioner at the initial intake

interview and approximately one week before trial. However, co-counsel participated in the

entire trial and conferred with trial counsel on issues during trial. Trial counsel handled

everything at trial, including jury selection, except the cross-examinations of three witnesses

and opening and closing arguments at sentencing, which co-counsel handled.

Trial counsel testified that he was familiar with the American Bar Association (ABA)

Guidelinesforthe Appointment and Performance of Defense Counsel in Death Penalty Cases

and that he had reviewed the guidelines before the petitioner’s trial. He further stated that

neither he nor any other member of the defense team sought help from any well-known death

penalty defense organizations such as the National Association for the Advancement of

Colored People (NAACP) Legal Defense Fund or the Southern Center for Human Rights.

Trial counsel explained that, given the monthly meetings he had with the entire capital

defense team, he did not see the need to seek outside assistance. He stated that his supervisor

had started the capital defense team and had a great deal of experience in capital litigation.

He, therefore, felt that the team had all the experience that he needed to assist him in his

representation of the petitioner. Trial counsel testified that he was also aware of the 1992

TACDL manual for the handling of Tennessee death penalty cases, had a copy of the manual

himself, was aware that the Shelby County Public Defender’s Office had a copy of the

manual, and had consulted the manual during the preparation of the petitioner’s case.

Trial counsel testified that he was aware of the case law, statute, and supreme court

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rule that allow defense counsel in capital cases to seek funding for the employment of

experts. He also testified that he consulted with several experts while preparing the

petitioner’s case, although he did not call any of them to testify during the trial.

Trial counsel testified that the pretrial motions he filed in the petitioner’s case were

part of a standard packet always filed in cases handled by the capital defense team. Trial

counsel testified that one standard motion he filed in the petitioner’s case was a motion

requesting the state to announce whether it was going to seek the death penalty. Trial

counsel testified that the purpose of that motion was to determine whether the capital defense

team would stay on the case. Trial counsel acknowledged that the response to the motion

was the formal notice of the state’s intent to seek the death penalty against the petitioner.

At the first intake meeting with the petitioner, trial counsel obtained information from

the petitioner about his background and the facts surrounding the case. During this initial

intake interview, the mitigation investigator completed a mitigation evaluation form. The

petitioner’s post-conviction counsel introduced a copy of the completed form into evidence

at the hearing. According to the information obtained from the petitioner and reflected on

this form: (1) the petitioner’s family members had no history of alcoholism, epilepsy, mental

illness, institutionalization, or incidents of physical or sexual abuse; (2) the petitioner had

completed the tenth grade, could read and write, had no learning disabilities, and had left

school due to an arrest for drug possession; (3) the petitioner had tried out for basketball

while in school, but the coach cut him from the team; (4) the petitioner had been in the band

from the seventh through ninth grades and had obtained awards for being in the band because

he “was good”; (5) the petitioner’s history of major accidents or illnesses included a

laceration to the head during a fight as a child, a broken finger in 1989, a gunshot wound to

the right arm and right side in 1989, and a gunshot wound to the right side sustained during

the incident that is the subject of these charges; (6) the petitioner’s history of substance abuse

included drinking beer daily, drinking Crown Royal on the weekends, and snorting cocaine

occasionally starting at age thirteen or fourteen; (7) the petitioner had no history of mental

illness and no history of venereal disease; (8) the petitioner had undergone no prior

psychological or neurological evaluations; (9) the petitioner had a history of dizziness,

fainting spells and dropping objects due to sinus problems; and (10) the petitioner denied any

history of suicide attempts, but hesitated when answering.

As part of her investigation, the mitigation investigator also interviewed the

petitioner’s parents and prepared a written report of her interview for counsel. The

petitioner’s post-conviction counsel entered the mitigation investigator’s March 25, 1997,

written report from this interview into evidence at the hearing. The report stated, in pertinent

part, as follows:

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The [petitioner] is the youngest of two (2) children. He is also first

cousin to his co-defendant. [The petitioner] is married . . . and [he and his

wife] have a three (3) year[-]old daughter . . . . He also has a two (2) year[-

]old son . . . conceived from a previous [brief] affair. . . . As a result of this

affair and his arrest[,] [the petitioner’s wife] has separated from [the

petitioner,] but she continue[s] to maintain contact with the [petitioner]. [In

fact, the petitioner’s parents keep the petitioner’s daughter] during the week

and [her maternal grandmother] keeps her on the [weekends]. . . .

According to [the petitioner’s mother], her son was a normal birth. The

[petitioner]’s growth was within normal limits as well. Both [of the

petitioner’s parents] spoke very fondly of their son. [The petitioner’s mother]

states her son was a very quiet and mild mannered child. He was an honor

student until the eighth (8) or [ninth] (9) grade. It was after this period that her

son [began] to experience some behavior problems and running with the wrong

crowd. According to [the petitioner’s father], their son did not complete high

school because he got arrested on the charge of aggravated assault. Per [the

petitioner’s father], his son never considered returning back to school nor

getting his GED because of the arrest. Unlike his brother . . . , who was very

active in school, [the petitioner’s mother] states the [petitioner] was never

active in school. He showed no interest in participating in anything in school

[including] sports. Per [the petitioner’s father] the relationship between his

sons was very good. According to [the petitioner’s mother] they were . . . very

close. Both parents could not understand why their son could have committed

such a crime. According to [the petitioner’s father], they tried to be the best

parent[s] to their sons. Per [the petitioner’s father] this crime was uncall[ed]

for[;] however, he and his wife will support [the petitioner] and his defense

team.

[The petitioner’s mother] state[s] after her son served his jail time, he

was able to get a job at Nike. He move[d] home briefly with them and moved

out shortly after his marriage . . . . Per [the petitioner’s father], he and his wife

assisted them in getting their [apartment] and getting it furnished.

Both parents deny any history of mental illnesses in either of their

families. The [petitioner] was hospitalized for a gunshot wound he [received]

in 1989. To their knowledge[,] this was the only time their son was

[hospitalized]. [The petitioner’s father] recalls that shortly after the shooting

their son obtain[ed] a gun for “his protection” and since that time their son

continued to get involved in various bouts with the law.

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Both [parents admit] that their son was abusive to his wife, which [led]

to her having to call the police and [the petitioner] subsequently getting

arrested and convicted of [assault] and [b]attery. [According] to [the

petitioner’s mother], her son has a quick temper[,] and he never sought help

for this problem himself . . . until his arrest [when] the judge ordered him to

attend [an] [a]nger [m]anagement group.

[The petitioner’s father] states that [despite] how it appears, their son

is a good person who is very protective of his family. According to [the

petitioner’s mother] her son will give you the clothes [off] his back if you

needed it.

According to trial counsel, the petitioner’s family was very cooperative in preparing

a mitigation case, except for the petitioner’s brother, who refused to testify at both the guilt

and penalty phases of the trial. Besides the petitioner’s parents and brother, the only other

family member of whom trial counsel was aware of was the petitioner’s aunt. Trial counsel

also admitted that the only time he spoke with the petitioner’s brother or aunt was at trial

before their testimony. He could not recall contacting the petitioner’s brother or aunt before

trial. Upon being asked, trial counsel found it to be improbable that no one on the defense

team contacted these individuals until after the jury had convicted the petitioner at the guilt

phase. Trial counsel found it most likely that the mitigation investigator had been in contact

with these individuals. Trial counsel testified that the petitioner never gave him the names

of any potential witnesses other than those who testified at trial. He stated that the

petitioner’s family attended the trial.

According to trial counsel, typically about 60-65% of the background information on

a defendant in a capital case comes from the defendant himself. He testified that, based upon

the information provided by the defendant, the defense team contacts other people, including

family members, to provide additional information. Trial counsel testified that the

petitioner’s family did not contradict anything that the petitioner told the defense team about

his background.

Trial counsel testified that he was aware that the petitioner and his brother had

different last names; however, he was not aware that they had different fathers. Trial counsel

admitted that no investigation into the background of the petitioner’s father was done beyond

the social history given to the defense team by the petitioner and his parents. Trial counsel

also testified that the defense team knew that the petitioner’s mother suffered from diabetes

and had undergone some prior treatment for depression. However, trial counsel admitted that

no investigation was done to corroborate the mother’s assertion that the petitioner’s birth had

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been normal or her assertion that the petitioner’s growth as a child had been within normal

limits.

Trial counsel also admitted that the petitioner’s school records did not appear to

corroborate the assertion by the petitioner’s parents that the petitioner had been an honor

student until the eighth or ninth grade. However, trial counsel clarified on cross-examination

that these records did show the petitioner having achieved A’s, B’s, and C’s through the sixth

grade and only declining in school performance when he reached the seventh grade. Trial

counsel acknowledged that the school records seemed to contradict the petitioner’s parents’

assertion that the petitioner was not very active in school. The records showed that the

petitioner had participated in the band as he had reported to the defense team during the

initial intake interview.

Trial counsel’s understanding of the circumstances surrounding the petitioner’s selfreported 1989 gunshot wound had been that the petitioner stepped between his brother and

the shooter during an altercation to save his brother from being shot. Trial counsel admitted

that he had never seen any police reports on the incident and that the files for the petitioner’s

case contained none. Post-conviction counsel introduced a certified copy of the police

records from this incident, which occurred on July 4, 1990, into evidence at the hearing.

Before trial, the defense team had obtained the petitioner’s hospital recordsfrom the shooting

incident, which post-conviction counsel also entered into evidence during the hearing. The

medical records revealed that the petitioner had sustained a close-range, small caliber,

gunshot wound to the right shoulder during the incident. The bullet lodged in the petitioner’s

muscle without causing any vascular damage or damage to any other systems. Doctors

discharged the petitioner from the hospital five days after the incident without the need for

any medication.

The defense team had also obtained emergency room medical records documenting

a mild concussion the petitioner sustained during an altercation on May 10, 1992, while he

was an inmate at the Shelby County Jail. Trial counsel conceded that, contrary to the

petitioner’s self-report at the initial intake, these records revealed that the petitioner had

undergone a neurological examination as part of his treatment for the concussion. However,

trial counsel testified that he was unaware of the petitioner having undergone any other

psychological or neurological testing. Trial counsel admitted that the defense team did no

additional investigation into the petitioner’s self-reported history of dizziness, fainting, and

dropping objects. Trial counsel also conceded that neither he nor the mitigation investigator

obtained any records from the court-ordered anger management group that the petitioner’s

parents said the petitioner had attended.

Trial counsel testified that the petitioner’s family never suggested to the defense team

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that the petitioner had any emotional, psychological, or mental problems. In fact, trial

counsel testified that the petitioner’s parents emphatically asserted that the petitioner was

“not crazy.” Trial counsel testified that neither the petitioner nor anyone else had ever

suggested that the petitioner suffered from a mental illness or mental disease or defect. Trial

counsel testified that, in his experience as a lawyer on capital cases and in general practice,

he encountered individuals on a fairly frequent basis who had some mental problem that

required follow-up investigation. Trial counsel testified that he had also specifically dealt

with individuals who he had suspected were suffering from some kind of mental disease or

defect. He testified that, in such circumstances, he had arranged for testing that resulted in

some cases with findings of a defect and in other cases with findings of malingering. Trial

counsel acknowledged that, in the petitioner’s case, the defense team did not obtain the

assistance of any psychological experts. He stated that if anyone had suggested the need for

further evaluation of the petitioner, he would have followed up and done more investigation.

During the representation, trial counsel met with the petitioner several times. To him,

the petitioner seemed to understand the substance of their conversations about the case and

seemed to have no problem comprehending what counselsaid to him. Trial counsel admitted

that he did not know the petitioner’s specific IQ.

According to trial counsel, the petitioner informed him during their preparation for

trial that he had been drinking on the day of the offenses and that he had also used marijuana.

Trial counsel testified that the defense team considered possibly obtaining an expert to speak

about alcohol and drug use, but they decided that such testimony had no basis. Trial counsel

testified that, in his opinion, neither alcohol nor drugs played a significant role in the

petitioner’s actions on the night of the offenses. As such, trial counsel determined that the

petitioner’s self-reported alcohol and drug use would neither support a valid defense of

intoxication nor be viable mitigation at the penalty phase. However, trial counsel admitted

that in his written notes from a meeting with the petitioner five days before the trial, he had

written: “Thinks Brian [Mitchell] will admit to influence of cocaine in car on way over —

snorted & Crown Royal.” Trial counsel explained, on cross-examination, that he did not feel

this information was significant because in neither Mitchell’s nor the petitioner’s statements

to the police had they made any statements about the use of cocaine that night. Trial counsel

testified that in their statements, both men admitted to only limited use of intoxicants on the

night of the offenses. Trial counsel testified that he would have further investigated had he

felt that drug addiction or drug abuse had been a factor in this case. Trial counsel stated that

the petitioner’s recollection of events at the scene of the offenses had been “pretty good.”

To trial counsel, nothing suggested that the petitioner had blackouts at the time of the

offenses or was confused about the facts or circumstances surrounding the offenses because

of intoxication. Trial counsel noted that the only inconsistency between the petitioner’s

initial statement to the police on April 5 and his later statement on April 9 after his arrest

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concerned who was responsible for the shooting. The petitioner initially implicated his

cousin and co-defendant, Mitchell, as the shooter.

Trial counsel testified that he gave the petitioner, for his review, a copy of “every

piece of paper” of discovery he received from the state. Trial counsel first testified that he

received co-defendant Mitchell’s statement, which was the only proof supporting the

conviction for avoiding arrest and prosecution, an aggravating circumstance, in pretrial

discovery. However, trial counsel later testified that the first time he received the statement

may have been after Mitchell testified at trial. Trial counsel also admitted that a pretrial

comparison of the latent fingerprints found at the scene to samples from the petitioner and

Mitchell was negative. The court admitted into evidence a copy of the written report from

the Memphis Police Department that contained the fingerprint test results.

Trial counsel personally met with the medical examiner, Wendy Gunther, and

obtained the autopsy report on the victim. Trial counsel testified that, when he gave him a

copy of the autopsy report, the petitioner noticed some discrepancies in the report concerning

the age and residence of the victim and pointed those out to counsel. According to trial

counsel, the petitioner believed these discrepancies to be significant. Specifically, the

petitioner was adamant that the body in the photographs accompanying the autopsy report

was not the victim because it had “too many blows on it.”

Trial counsel acknowledged that application of the heinous, atrocious, and cruel

aggravating circumstance had been based on the nature and sequence of the wounds to the

victim’s body. Trial counsel admitted that the defense team never tried to get any of the

victim’s medical records other than the autopsy report. Trial counsel stated that the only

things he knew about the victim were where he worked, that he lived with his girlfriend,

Patricia Hensen, and that Hensen had been out to dinner with friends on the night of the

homicide. Trial counsel testified that he never spoke to Hensen. However, trial counsel

testified that he consulted with a pathologist, Dr. Cleland Blake, with respect to the sequence

of the victim’s injuries. Trial counsel stated that Dr. Blake had agreed with the conclusions

reached by Dr. Symes, the forensic anthropologist who testified at trial as to the sequence of

the injuries. Trial counsel stated that Dr. Blake had only reviewed Dr. Symes’s report, and

Dr. Blake did not review any tissue samples or photographs of the body of the victim. Trial

counsel did not obtain these items for this expert to review and stated that Dr. Blake never

asked to review the physical evidence in order to render an opinion. Trial counsel said that

he would have filed a motion to release the physical evidence if Dr. Blake had asked to

review the evidence.

Trial counsel testified that he filed a pretrial motion seeking disclosure of any promises

or consideration given to any state witnesses in exchange for their testimony. The state

13
responded to this motion by stating that it would promptly disclose to the defense any

promises or consideration given by the state in exchange for testimony. Trial counsel never

received notice from the state regarding any such promises or consideration given to a state

witness. Trial counsel stated that the defense team had been primarily seeking information

regarding any deals the state might strike with Mitchell in exchange for his testimony against

the petitioner. Mitchell testified at trial that there had been no deals made to him in exchange

for his testimony. According to trial counsel, until the weekend before trial, the petitioner felt

that Mitchell would not testify as a state witness. In fact, until the time that Mitchell walked

into the courtroom to testify, the petitioner was sure that Mitchell would not testify against

him. Trial counsel testified that he knew that the petitioner and Mitchell were “freely

conversing” with each other in the jail before trial. Trial counsel recalled speaking to

Mitchell’s attorney and asking him if the state had made any offers to Mitchell in exchange

for his testimony. Trial counsel could not recall if he ever asked Mitchell’s attorney for

permission to talk to Mitchell directly.

Trial counsel recalled only knowing that Mitchell and the petitioner were cousins.

Trial counsel did not recall knowing about Mitchell’s claims that he was slow or unable to

read and write. When post-conviction counsel presented him with a copy of a juvenile court

order that allowed the court to try Mitchell as an adult for the offenses committed with the

petitioner, trial counsel acknowledged that the document showed that Mitchell had ten prior

contacts with the juvenile court before the offenses committed with the petitioner. Trial

counsel admitted that the defense team did not obtain any further juvenile records on Mitchell

as part of the preparation for the petitioner’s case. Post-conviction counsel introduced a copy

of Mitchell’s juvenile court records into evidence. Trial counsel conceded that he did not

think to use Mitchell’s juvenile record to impeach him during cross-examination at the

petitioner’s trial. Trial counsel was unable to recall any reason not to have cross-examined

Mitchell about his use of drugs and/or alcohol on the night of the crimes.

Trial counsel testified that the petitioner initially denied writing the handwritten letter

that Mitchell gave to his lawyer. He further testified that it was only after the state engaged

handwriting experts to analyze the petitioner’s authorship of the letter that the petitioner

admitted that he wrote it. Specifically, trial counsel recalled talking to two handwriting

experts, one of whom was Marty Guinn-Pearce, on the issue of whether the petitioner had

written the letter given to Mitchell. Trial counsel testified that the handwriting analysis

conducted by Ms. Guinn-Pearce was not helpful to the petitioner’s case. Trial counsel

testified that the petitioner finally changed his position about his authorship of the letter and

signed a written statement acknowledging that he was the author of the letter on December

3, 1997, which was very close to trial. Post-conviction counsel introduced a copy of this

document into evidence at the hearing. It reads:

14
After my indictment and arraignment, my cousin, Brian Mitchell, asked

me to write a true statement of our participation in the burglary at 1096 S.

Perkins on April 5, 1996.

I wrote a two (2) page statement in block print and delivered it to my

cousin. He forwarded it to his attorney.

That statement was examined by Thomas Vastrick and found to be my

handwriting. He also took exemplars of my handwriting to make the

comparison.

I hereby acknowledge that I wrote the statement and waive any further

contest of the issue. I understand that my attorney has obtained permission to

have it examined by another expert but I feel that such further examination

would be fruitless, and I therefore waive same.

Trial counsel testified that the petitioner giving Mitchell the inculpatory letter and then

denying having written it did not make sense to him.

The prosecution initially charged the petitioner with felony and premeditated first

degree murder under alternative theories. Trial counsel testified that he discussed the concept

of felony murder with the petitioner during trial preparation and felt that the petitioner

understood the concept. However, trial counsel acknowledged that the petitioner wanted to

raise self-defense as a defense at trial. Trial counsel said that he explained to the petitioner

that self-defense was not a valid defense to the felony murder charge and sent the petitioner

some case law on the subject. Trial counsel then identified two letters he sent to the petitioner

during his representation. Post-conviction counsel introduced these letters, dated June 4,

1997, and December 15, 1997, as a collective exhibit during the hearing.

In his letter dated June 4, 1997, trial counsel referenced the petitioner’s May 28, 1997

letter, which contained several questions about the case. In response to the petitioner’s

inquiries, trial counsel informed the petitioner that the cases that he had sent to the petitioner

to explain why self-defense was not a valid defense to felony murder were not “totally

different” from the petitioner’s case as the petitioner had apparently asserted in his previous

letter. In the June 4 letter, trial counsel wrote:

You misunderstand the concept of Felony Murder. If it is proven that

you were either engaged in a burglary of Mr. Smith’s house or attempting to

burglarize his house at the time that Mr. Smith died and his death was closely

connected to that felony, you can be convicted of Felony Murder. That’s all it

15
takes. I have previously given you the charge that the Court will probably give

regarding that offense, and I beg you to re-read it and try [to] understand it.

The cases all say or explain the basis of Felony Murder that the intent to Murder

is inferred from the intent to commit a felony. The state does not have to prove

a separate premeditation or deliberation in order to convict [for] Felony Murder.

As I have explained to you before, I anticipate that the inconsistencies

which you have included in your recent letter will be explained on the simple

basis that mistakes were made. I believe that is an adequate explanation and I

believe the jury will accept it.

. . . .

You make some statements regarding evidence and conclude that

autopsies are considered lay opinions. They are not. Autopsies are considered

expert evidence. I anticipate Dr. Gunter [sic] will testify, or another member

of her office, as to the contents of that autopsy. It will be accepted as expert

proof as to the cause of death.

. . . .

I hope this answers your questions. You write in a very rambling

manner and it is difficult to determine what you are asking at times. I have

painstakingly gone over these questions, and believe that I have answered all

of them. In any event, I will see you soon and we will discuss this further. . .

Trial counsel acknowledged that understanding what the petitioner was asking in his

letters was difficult for him. Trial counsel felt that the petitioner eventually understood that,

in counsel’s opinion, self-defense was not a defense to felony murder, and counsel did not

pursue the theory of self-defense at trial. Trial counsel explained that the petitioner’s

problems with the concept of felony murder had more to do with his refusal to grasp and

believe what trial counsel was saying to him than with any inability to understand or

comprehend the subject. Trial counsel testified that he had worked on other cases where he

had explained the law to a defendant, and he or she just did not like it or believe it. Trial

counsel explained that many defendants do not trust him when he tries to explain the law to

them as applied to their particular facts. Trial counsel testified that the petitioner had a hard

time accepting the felony murder doctrine. He said that the petitioner wanted to testify that

the victim “confronted him and there was a confrontation with weapons and the homeowner

wound up getting killed but this was all because [the petitioner] was trying to defend himself.”

Trial counsel stated that he explained to the petitioner that, under the law, “that just [would

16
not] fly.”

Trial counsel contacted a firearms expert, Bob Goodwin, a retiree from the Tennessee

Bureau of Investigation, to review the conclusions reached by Donald Carmen, the state’s

firearms expert, regarding what caliber bullet caused the victim’s death. Trial counsel

testified that the defense even got a continuance of the trial to consult with a firearms expert

due to the late disclosure by the state of the conclusions reached by Carmen. Trial counsel

admitted that Goodwin reviewed only the report generated by Carmen and did not review the

physical evidence itself. Trial counsel did not offer to obtain this evidence for Mr. Goodwin’s

review. Goodwin never asked trial counsel to allow him to review the physical evidence to

render an opinion. If he had, trial counsel said that he would have filed a motion to release

the physical evidence for that purpose.

Trial counsel testified that before trial, the state had offered to allow the petitioner to

plead guilty to the offenses in exchange for concurrent sentences of life without parole for the

murder and ten years imprisonment for the burglary. Trial counsel presented this offer to the

petitioner, but the petitioner turned it down after several lengthy conversations with counsel

about the proof that the state would introduce in the case and the pros and cons of pleading

guilty. Trial counsel testified that the petitioner’s position had been that, if he were going to

get any kind of sentence in the case, the state would have to impose it upon him; he would not

agree to it. Trial counsel testified that the petitioner signed a written rejection of the plea offer

on December 3, 1997, for counsel’s files, which post-conviction counsel introduced into

evidence at the hearing. The last paragraph of this document stated:

I know that I am charged with Felony Murder and at least one

Aggravating Factor cannot be disputed — I have two (2) prior convictions for

crimes whose elements involve violence to a person. I believe that my defense

is self-defense even though my attorney has advised me that such is not

properly a defense to a felony murder case.

When asked on cross-examination why he had the petitioner sign the written rejection of the

plea offer, trial counsel responded: “Because I thought he was making a very foolish

decision.” Trial counsel felt that the petitioner should have taken the plea deal. He stated that

he felt at the time that there was a strong likelihood that the petitioner would get the death

penalty. Trial counsel admitted that their numerous conversations about the plea offer “may

have been the cause of some friction between the two of [them].”

Trial counsel testified that he thought he and the petitioner had a good relationship

until they began talking about the plea deal. However, trial counsel admitted that the

petitioner had filed a bar complaint against him during the representation to obtain disclosure

17
of some documents. Trial counsel testified that such complaints were common in indigent

defense work. Trial counsel stated that the filing of the complaint did not have any impact

on the way he represented the petitioner. Trial counsel further stated that, even when he was

having difficulties with the petitioner, he never stopped working full-time on preparing the

case for trial.

Trial counsel could not recall whether any of the jurors on the petitioner’s case had

ever sat on a criminal case before, much less a death penalty case. Trial counsel

acknowledged that, if he knew of a juror who had sat on a death penalty case before, he would

not have wanted to keep that juror on the panel. Trial counsel recalled that during voir dire,

many prospective jurors in the petitioner’s case said they had been the victims of a crime.

Trial counsel further testified that during voir dire, he had questioned prospective jurors on

their ability to impose the death penalty, that he eliminated some jurors from service because

they stated they could not impose the death penalty, and that he had attempted to rehabilitate

other jurors whose answers to this line of questioning made them subject to being eliminated

from the panel. Trial counsel also specifically recalled having had a conversation with cocounsel about voir dire and who would handle the rehabilitation of any cause challenged

jurors. Trial counsel stated that he never sought permission to administer a written jury

questionnaire to potential jurors in the petitioner’s case. However, he testified that he

normally only used a written questionnaire in cases involving a great deal of pretrial publicity,

which this case did not have. Trial counsel testified that the only media coverage given to this

case had been a “two-inch article in the newspaper” a couple of years before the trial.

Trial counsel testified that the petitioner had adamantly refused to testify on his own

behalf at either stage of the trial, though counsel advised him of his right to testify and urged

him to testify at the penalty phase. Trial counsel explained that the defense team made it

clear to the petitioner that it was his decision whether to testify. Trial counsel also explained

that he and the defense team explained to the petitioner who the prosecutors were and what

he could expect from them during cross-examination if he testified. Trial counsel testified

that he specifically told the petitioner that the prosecutor would be thorough in his crossexamination if the petitioner elected to testify.

Trial counsel testified that his defense position at the guilt phase of the trial had been

to establish reasonable doubt in the minds of the jurors and to show that the homicide was not

closely connected to the underlying felonies and to undercut the state’s case for felony

murder. On cross-examination, trial counsel explained his theory as follows:

Well, we thought it was more felony murder than it was premeditated

first degree murder. And based upon that, of course, [the petitioner] wanted to

assert self defense at his trial. We tried to separate the underlying felonies, the

18
burglary and the theft, from the homicide. There was a point at which he left

the house and came back in. And basically it was just reasonable doubt along

those lines.

Trial counsel stated that the petitioner never denied his involvement in the offenses; the only

issue for trial was the level of his involvement and possible consequences. Trial counsel

conceded that the proof against the petitioner was “pretty significant.” Trial counsel further

testified that the only defense the petitioner offered to counsel was that of self-defense. Trial

counsel testified that he does not take it upon himself to create a defense for a defendant.

Trial counsel testified that his defense position at the sentencing phase of the trial had

been to generate some sympathy for the petitioner because he did not have any of “the typical

bad things . . . about people to present.” Trial counsel emphasized that all of the mitigating

circumstances that he charged were non-statutory, except the petitioner’s age. Trial counsel

agreed that “a fair representation” of the petitioner’s background was that the petitioner had

been a good child who started having problems when he got to junior high school and got

picked on by bullies. On cross-examination, trial counsel explained that in the penalty phase

he attempted to

show them that [the petitioner] was a human being, that he wasn’t just

somebody who broke into a house and killed a homeowner. I wanted to show

that he had a family that cared about him. That he could do well in a structured

environment of a penal farm or penitentiary environment. Those sorts of

things.

Trial counsel testified that, to that end, his strategy in the penalty phase of a capital case was

to generally present everything in mitigation that the jury could possibly see “as some reason

for giving [the petitioner] less than death.” Trial counsel agreed, however, that if something

is presented in mitigation about the circumstances of the crime that a defendant’s statement

to police did not reflect, the presentation of that mitigation might affect counsel’s credibility

with the jury as to the weight the jury gives to any argument it accepts or rejects.

Trial counsel testified that he was aware of the supreme court rule requiring trial court

judges to file reports with the Tennessee Supreme Court on all first degree murder cases

following the conclusion of the case. Trial counsel testified that he reviewed the report

prepared by the trial court judge in the petitioner’s case, and he submitted corrections to the

trial court judge as to some information contained in the report, although late. Trial counsel

testified that he was aware that the purpose of the reports was to help appellate proportionality

review in death cases.

19
Trial counsel testified that he did not represent the petitioner in his direct appeal. He

acknowledged, however, that he successfully preserved for appellate review (1) the issue

regarding the state eliciting from the mitigation witnesses information about prior crimes not

relied on by the state as aggravating circumstances; and (2) the issue regarding instruction

given to the jury on the victim’s use of self-defense. Post-conviction counsel introduced a

transcript of the instructions given to the petitioner’s jury during both the guilt and penalty

phases into evidence at the hearing.

The petitioner’s maternal aunt, Georgia Baptist, a resident of Memphis, testified that

when the petitioner was sixteen or seventeen years old he showed up at her home one night

bleeding from over his right eyebrow and saying that he and his father had gotten into a fight.

Ms. Baptist did not call the petitioner’s parents, but instead cleaned the petitioner up and let

him spend the night to let everyone “cool off.” Ms. Baptist testified that the petitioner’s

mother was later angry with her for not calling to tell her where the petitioner had been that

entire night.

Nathaniel Wilson testified that he had known the petitioner since the second grade, and

years later, they became close friends. Mr. Wilson stated that he knew the petitioner as

Vincent Gardner in elementary school; however, around the eighth grade, the petitioner

changed his last name to Sims. Mr. Wilson described the petitioner as “a very energetic child.

He was kind of a skinny child. Big smile . . . kind of quiet.” Mr. Wilson recalled that the

petitioner’s size was “[s]maller than average” and stated that children would “pick on him.”

When he and the petitioner became close friends, which was around the ninth grade, they

lived close to each other and frequently played basketball together. Mr. Wilson, who played

the clarinet, was also in the band with the petitioner, who played the trumpet.

During his friendship with the petitioner, Mr. Wilson often visited the petitioner’s

home and became acquainted with the petitioner’s parents and brother. According to Mr.

Wilson, the petitioner had a “strained” relationship with his father, who was often absent from

the home, and he sometimes could “sense a hardship” between them. In addition, he recalled

witnessing the petitioner argue with his father, mainly over the petitioner doing his household

chores. He said that the petitioner’s father got mad if the petitioner did not do his chores or

did not do them the way he wanted them done. He further said that the petitioner would

“honestly” forget to do his chores because of school, homework, and the many other things

that he had to remember. Mr. Wilson testified that the petitioner’s father loudly yelled when

he got upset, and it was “kind of scary.” He further testified that the petitioner was upset and

saddened after his father yelled at him, and the petitioner “never felt like [the petitioner’s

father] was pleased with anything that he ever [did].” Mr. Wilson recalled an instance when

the petitioner, who was crying, came to Mr. Wilson’s aunt’s home after he had argued with

his father. The petitioner characterized his father as an alcoholic to Mr. Wilson and told him

20
that his father had a seizure once when he had been drinking. The petitioner also told Mr.

Wilson that, when the petitioner was in the tenth grade, his father had pointed an unloaded

gun at him.

According to Mr. Wilson, the petitioner’s father praised the petitioner’s brother

because he was a “track star” and had “lots of trophies.” Mr. Wilson said that the petitioner’s

parents displayed the petitioner’s brother’s trophies in a “prominent position” in the living

room. Mr. Wilson could not recall the petitioner’s father ever praising the petitioner, but he

did remember that the petitioner had a newspaper clipping which had the petitioner’s picture

and a trophy for winning a dance contest. Mr. Wilson testified that the trophy and newspaper

clipping were not in the same location as the petitioner’s brother’s trophies. He said the

petitioner’s items were on the right side of the room and his brother’s were on the left side.

The newspaper clipping was in a glass picture frame, but not the trophy.

Mr. Wilson found out that someone had shot the petitioner back in 1990 when he went

to the petitioner’s home looking for him. The petitioner’s family told him that the petitioner

was in the hospital, and the petitioner’s mother explained that medical personnel had to revive

the him. After the petitioner recovered from the shooting, he described to Mr. Wilson the

circumstances surrounding the shooting and his recovery. According to Mr. Wilson, the

petitioner said that “when [the petitioner] was in the hospital [and] the doctors [were]

operating or when they [were] just caring for him . . . sometimes [the petitioner] just felt like

giving up.” Mr. Wilson described that the petitioner appeared “[s]addenend” while he

discussed his shooting.

Mr. Wilson admitted that he was the petitioner’s co-defendant in a 1990 criminal

matter. Regarding the circumstances of that matter, Mr. Wilson said that he was driving to

a dance at Oakhaven High School, with the petitioner in the passenger seat and a cousin and

friend in the backseat, when they encountered a vehicle with “some more guys . . . coming

from the opposite direction in the parking lot.” Mr. Wilson said the men in the other vehicle

were staring at the petitioner, but he could not remember whether the men exchanged words.

The other vehicle contacted the vehicle that Mr. Wilson was driving, and subsequently, the

petitioner “let the window down and fired two shots at the vehicle.”

Mr. Wilson admitted that he and his companions had been drinking malt liquor that

night, but he could not remember if they had smoked marijuana. Mr. Wilson stated that he

became aware of the petitioner drinking alcohol while they were teenagers. The petitioner’s

drinking habits increased when he was around nineteen years old. According to Mr. Wilson,

they usually drank alcohol Friday through Sunday.

Mr. Wilson served time at the Shelby County Correctional Center because of the

21
charge he shared with the petitioner. Mr. Wilson described the jail conditions as “horrible.”

He recalled witnessing a “[thunderdome]” where “the tougher guys or the guys who [had]

been [there] maybe longer than some of the other guys . . . would basically just wrestle and

. . . would . . . assault some of the guys who just came in or [had] not long been in.” He stated

that the thunderdome injured inmates, and occasionally, inmates had to go to the hospital after

participating. Mr. Wilson testified that he also witnessed guards beating inmates for being

insubordinate.

The defense team did not call Mr. Wilson to testify at the petitioner’s trial, and he

stated that had the defense team asked him, he would have testified. At the time of the

petitioner’s trial, Mr. Wilson resided in Texas, but he said that he had family that could have

found him had the defense team contacted them. He testified that, at the time of the trial, he

had “turned [his] life around,” was working and active in a church in Texas. He said that he

counseled youth in the church and tried to help them overcome their problems. Mr. Wilson

said he was willingly testifying at the post-conviction hearing.

Brian Mitchell, the petitioner’s cousin, testified that he was incarcerated at the

Northwest Correctional Complex in Tiptonville, Tennessee. He did not spend much time

around the petitioner until 1996, when he was around sixteen or seventeen years old. During

that time, the petitioner and his wife were divorcing. According to Mitchell, the petitioner did

not want to divorce his wife and instead wanted to have an “open relationship,” which meant

that they would see other people. Mitchell stated that he and the petitioner were drinking St.

Ives malt liquor, which they did every day, when they discussed the petitioner’s marriage.

Besides St. Ives, they also drank Hennessy gin. He said that he, the petitioner, and another

person would drink a fifth of Hennessy at a time on “Monday, Tuesday, Wednesday, [and they

would] probably lay out until about Friday.” Mitchell saw cocaine around the petitioner, but

denied ever seeing the petitioner use it.

Mitchell was with the petitioner on the night they burglarized the victim’s home.

Mitchell testified that he and the petitioner had been drinking St. Ives that night. Mitchell also

smoked marijuana that night and said that the petitioner “took a couple puffs off of it, but

[Mitchell] was really smoking it.” Using a sketch of the homicide scene, Mitchell marked

where in the victim’s carport the petitioner parked Ms. Maxwell’s car that night. He also

stated that the petitioner parked the car facing toward the carport.

The victim returned home while the petitioner and Mitchell were burglarizing his

home. Mitchell said that he and the petitioner ran out the side door, which opened to the

carport. When they got outside, they saw that the victim’s truck “had [them] backed in,” and

Mitchell could not get his vehicle out of the carport. Mitchell said that he got in the driver’s

side of the victim’s truck so that he could move it, and the petitioner was in the passenger’s

22
side of the truck. Mitchell further said that they were trying to find the truck’s emergency

brake so they could “push the car out of gear so [they] could leave the residence.” While they

were searching for the emergency brake, the victim came to the carport door with the keys to

the truck and “a silver or chrome pistol.” According to Mitchell, the victim stated, “‘You

forgot the key. Come get the keys. You forgot the key.’” Mitchell stated that the petitioner

looked “scared,” and the petitioner ran “around the far side of . . . [Ms.] Maxwell’s vehicle.”

Mitchell testified that the victim backed into his home attempting to bait the petitioner, and

the petitioner ran into the victim’s home.

Mitchell did not go back into the victim’s home and heard gunshots while he was

outside. Before this night, Mitchell had heard the sounds of “.22” and “.380” guns being fired

and stated that he first heard a “.380.” After he heard the gunshots, Mitchell saw the

petitioner come out of the house holding his side. He stated that the petitioner told him that

the victim had shot him and threw him the keys to the victim’s truck. Mitchell could not

recall how long the petitioner was in the victim’s house, but stated that “it seem[ed] like as

soon as [the petitioner] entered the house he started shooting.” Mitchell moved the truck, and

he and the petitioner immediately left. After they left, the petitioner dropped Mitchell off at

his fiancée’s house.

Mitchell admitted that he lied in his statement and when he testified at trial that the

petitioner told him that he had to kill the victim because the victim saw his face. When asked

why he lied, Mitchell responded that he was “scared, mad, [and] frustrated.” Mitchell made

his statement while the police were interrogating him, and he testified that the police told him

that the petitioner “was downstairs . . . putting [the crime] on [him],” which made him feel

“[b]ad.”

Mitchell’s court-appointed attorney spoke with the prosecutors in the petitioner’s case

twice. During a conversation with a prosecutor, Mitchell’s attorney left the room after

advising Mitchell to keep whatever he and the prosecutor discussed between them. Mitchell

stated that the prosecutor offered him dismissal of the murder charge and less jail time if he

would testify against the petitioner. Mitchell further stated that the prosecutors advised him

that they were “going to try and get [the petitioner fifteen] years and give [Mitchell] four

years.” Mitchell again spoke with a prosecutor who offered him thirty years for the burglary

charge and dismissal of the murder charge. Mitchell pleaded guilty to burglary, and the court

sentenced him to thirty years. Mitchell stated that at the petitioner’s trial he testified that the

prosecution did not offer him any deals because he was “trying to protect” himself.

Mitchell admitted that, as a juvenile, he received convictions for theft of a vehicle

$10,000 or more, aggravated assault, criminal attempt, possession with intent to sell fourteen

pounds of marijuana, and possession of a pistol.

23
On cross-examination, Mitchell testified that he had not spoken with his attorney since

he had been back from the Northwest Correctional Complex. Mitchell said that he knew that

perjury was “[w]hen you swear something you lie about,” and a possible consequence is

receiving more jail time. Mitchell stated that he read the trial transcript. However, when

asked when he read it, he said that he had not read the transcript and had only read his

“statements and all that.”

Mitchell admitted that, at the trial, he did not tell the jury that the victim was standing

in the carport doorway jangling keys and holding a pistol. He explained that he did not tell

the jury because he “was mad . . . [and] frustrated . . . because [the petitioner] tried to put what

he did on [him] and [he] wanted that murder charge dropped.” Mitchell also admitted that

during the trial, he testified that he saw the victim in the hallway of his home, but did not get

“a good look at him[.]” Mitchell agreed that he also testified at trial that he knew the victim

“‘had thrown his hands up so he didn’t have [anything] in his hands.’” During the trial,

Mitchell also stated that he did not see a weapon in the victim’s hands. Mitchell stated that

his testimony at trial was incorrect, and “when [he] made that statement [he] was scared and

most of [it] ain’t [sic] valid.”

Mitchell agreed that he testified during the trial that he ran through the victim’s living

room and kitchen to get out of the side door, and he passed within two inches of the victim,

who had his hands in the air. He also agreed that he testified that the victim did not try to stop

or grab him. Mitchell said that his trial testimony that the victim did not threaten him with

a weapon was incorrect, and the victim threatened him with a weapon but did not shoot at

him. Mitchell agreed that his testimony that the petitioner was in the room while he was

running out of the victim’s house and that the petitioner also ran out of the house was correct.

He further agreed his testimony that he and the petitioner were unsuccessful in trying to move

the victim’s jeep, which was blocking Ms. Maxwell’s car in the driveway, was correct.

Mitchell stated his testimony that he tried to find the emergency brake so that he could push

the truck out of the way, and that he had put the television that he and the petitioner had stolen

from the victim in Ms. Maxwell’s car was likewise correct. He denied that his testimony that

he was alone outside for three to four minutes while the petitioner was still in the house was

truthful and said that both he and the petitioner ran outside. Mitchell said that he lied while

testifying at trial because he “was only thinking about [him]self when [he] was talking to the

jury.” Mitchell claimed he was truthful when he testified that while he was outside, he did

not hear anything that was going on inside the victim’s home. Mitchell stated that his

testimony on the day of the burglary that he saw a bulge in the petitioner’s pants was true;

however, he further stated that he did not see the petitioner’s gun the evening before the

burglary. Mitchell said that his statement in the transcript that he had seen the petitioner’s

“.22 with [a] long, long barrel [and] a brown handle . . . earlier on April 5, 1996” was correct.

24
Mitchell also said his testimony that he did not see the petitioner with the gun inside the

victim’s home but saw the petitioner with a chrome .380 pistol after he came out of the house

was also correct. He denied his testimony that the petitioner came out of the house and said

he could move the truck was correct, and he stated that the petitioner had been shot when he

came out of the house. Mitchell stated it was true that the petitioner ran back inside the house

after he could not move the victim’s Jeep and that he heard the petitioner yelling, “‘[G]ive me

the keys, mother f*cker, give me the keys.’” When asked about his trial testimony that the

petitioner did not have a gun when he came out of the house and tried to move the Jeep,

Mitchell said that the petitioner did not have a gun “period that night.” He explained that the

bulge that he noticed in the petitioner’s clothes was his pager. Mitchell stated his testimony

that he did not see the petitioner take a gun with him when he went back inside the house was

correct. He further stated his trial testimony that he did not hear the victim say anything was

untrue, but his testimony that he heard the petitioner say, “‘[G]ive me the mother f*cking

keys’” was true. He also said that he testified truthfully at the trial when he stated that he

heard “eight or nine gunshots” after the petitioner ordered the victim to turn over his keys.

Mitchell stated his testimony that “the moment [the petitioner] entered the house that’s when

they started shooting,” and his testimony at trial that the petitioner was in the house “[a]bout

a minute” after the gunshots were true.

Regarding the events after the shooting, Mitchell admitted that his trial testimony

stating that the petitioner ran out of the house with a chrome pistol in his hands and holding

his side saying that he had been shot was truthful. He later testified that the petitioner told

him he had taken the chrome pistol from the victim. He further admitted that his testimony

that the petitioner threw him the victim’s keys, which the petitioner had gone back inside the

house to get, and told him to move the Jeep was also truthful. Mitchell testified that his trial

testimony that he moved the Jeep after the petitioner gave him the keys and then got back in

Ms. Maxwell’s car, with the petitioner driving, was correct.

Mitchell had already spoken to the police before he testified at the petitioner’s trial, but

he said that “[s]ome of the information is not true on my statement that they had got [sic] from

me.” He denied that the petitioner was trying to kill him contrary to his previous testimony,

under oath, that the petitioner had threatened to kill him if he testified against the petitioner.

Mitchell admitted that the petitioner told him, “‘[D]on’t say a mother f*cking thing to nobody

[sic].” He stated that his testimony that the petitioner told him “‘if he don’t go home, ain’t

nobody [sic] going home” was untruthful. Mitchell initially said that he did not remember

testifying that the petitioner told him that he “was going to kill [him] when [he got] to the

penitentiary” and that he only testified that there was “a rumor going around that [he was] a

snitch.” However, when refreshed with the trial transcript, he admitted that he did tell the jury

that the petitioner threatened to kill him and that his testimony in that regard was truthful.

25
Mitchell stated that he did not kill the victim. He said that the petitioner was his

cousin, and he felt bad about what happened and the petitioner getting the death penalty. He

agreed that he lied about receiving a deal during the trial. When asked why he lied so much,

Mitchell responded that he “was just trying to protect, save himself.” Mitchell admitted that

he was still trying to protect and save himself. According to Mitchell, the prosecutor with

whom he made his deal “told [him] what to say,” and Mitchell agreed that he went in front

of the jury and “lied [his] little head off.” He did not tell his attorney that the prosecutor told

him how to testify and said that his attorney thought he was being truthful when he testified.

On redirect examination, Mitchell clarified that both he and the petitioner were in the

victim’s house originally and both of them ran out of the house when the victim returned

home. He said that the victim did not threaten them until they were outside, and the victim

was standing in the carport doorway with a gun. Mitchell stated that he was seventeen years

old when the authorities charged him with this burglary. He further stated that he was “very

much” scared of going to prison, and this case was his first time testifying. Mitchell said that

after he testified, the petitioner called him a snitch by writing “Brian Mitch is a snitch” on a

wall in the jail. He explained that being a snitch meant “[t]hat you’re telling on somebody.”

When asked if there was any advantage to him for testifying at the post-conviction hearing,

Mitchell responded, “No, ain’t nothing [sic] in it for me.”

Naomi Gardner, the petitioner’s aunt, stated that she testified at the petitioner’s

sentencing hearing. Around eight or nine o’clock on the night before the sentencing hearing,

the petitioner’s mother notified her that she had to testify at the hearing around ten o’clock

the next morning. She did not speak with trial counsel or anyone associated with trial counsel

before she testified.

Naomi was around the petitioner’s mother while she was pregnant with the petitioner,

2

and the petitioner’s mother lived in the same home as Naomi when the petitioner was born.

Naomi testified that when the petitioner’s mother was around fifteen years old she began

having seizures, and she had them while she was pregnant with the petitioner. Naomi recalled

that the petitioner was born prematurely at eight months and weighed between five and six

pounds. The petitioner had jaundice and was hospitalized for about a month after he was

born. She described the petitioner as healthy after he left the hospital except frequent

vomiting until he was approximately one-year-old. Naomi said that the petitioner did not

“gain weight the way that babies should” and “was always small framed.” She also said that

 Because Naomi Gardner and Mary Gardner both testified at the hearing and have the same last

2

name, we will refer to them by their first names to avoid confusion. We intend no disrespect by doing so

but wish to avoid having to repeatedly refer to these individuals by their full names.

26
the petitioner slept like a normal baby, but he cried “[s]poiled cries” because he liked people

to hold and rock him. Naomi said that the petitioner had “never been a big eater”; however,

he did eat healthy foods and enjoyed eating certain things. As a child, the petitioner was not

very outgoing and stayed inside his house most of the time. She said the petitioner was not

a “run around person” and was not talkative either. Naomi later testified on crossexamination that the petitioner was a good child “as far as [she] could see,” who got along

with his family. She said that he adored his brother and had a “very close” relationship with

him.

When the petitioner’s mother brought the petitioner home from the hospital, they lived

in the Claiborne Homes area. Thirteen people lived in their three bedroom, one bathroom

home, which also had a kitchen, living room, and pantry. Other than the petitioner’s mother,

the petitioner, and Naomi, the petitioner’s brother, uncle, three additional aunts, and five

cousins also shared the home. The petitioner’s mother received a subsidy for food in addition

to welfare payments, which other members of the household also received. The petitioner’s

father also lived with his mother in Claiborne Homes. Naomi described Claiborne Homes as

a “rough” and impoverished neighborhood with “[a] lot of crime.” When the petitioner was

two, he and his mother moved from Claiborne Homes to Crump Avenue. At their new home,

around five people were living in a two bedroom, one bathroom home. The petitioner’s

parents married when he was four, and the petitioner’s family moved to the Whitehaven area

of Memphis.

Naomi recalled when the petitioner was shot and stated that she went to visit him in

the hospital about two hours after he was shot. When she arrived at the hospital, the doctors

had already performed surgery on the petitioner, and the petitioner was in the intensive care

unit. Naomi was present when the doctors told the petitioner’s mother that “it looked like [the

petitioner] wasn’t going to make it, [and] they couldn’t remove the bullet that was in his

body.” She said that the doctors took her and the petitioner’s mother to the hospital chaplain

to pray.

Naomi stated that she knew the petitioner’s father well and had seen the petitioner

interact with his father. Naomi witnessed the petitioner tell his father that someone was

picking on him, to which his father replied that the petitioner “needed to learn how to fight

and take up for himself.” Naomi also witnessed the petitioner’s father tell the petitioner that

“he needed to eat more, that he was too little[, and] should get bigger to play sports.”

According to Naomi, the petitioner’s father compared the petitioner with his brother,

commenting that the petitioner’s brother was bigger and that he wanted the petitioner to be

more like his brother and play sports.

Naomi recalled an incident, when the petitioner was around seventeen or eighteen years

27
old, where the petitioner came home with some friends and was listening to music with the

volume turned up loud. The petitioner’s father asked the petitioner to turn down the volume,

and the petitioner “got a little smart mouthed with him.” Thus, the petitioner’s father pushed

the petitioner down to the ground, causing the petitioner to scrape his elbow.

Naomi testified that while she and the petitioner’s mother were growing up, their

parents exposed them to alcohol. Both of her parents consumed alcohol, and her mother had

a drinking problem. Naomi remembers her mother drinking when Naomi was as young as

three or four years old. She said that she saw her mother get drunk every day and frequently

pass out. She further said that the drinking prevented her mother from providing dinner for

the family. Naomi testified that her brother also had a drinking problem and was an alcoholic.

In addition, she said that she had seen the petitioner’s father get so drunk that he would pass

out. Naomi stated that three of her nieces were alcoholics, and three of her nieces were

addicted to drugs.

The petitioner, along with his mother, lived in Naomi’s father’s home until the

petitioner’s parents were married. Naomi stated that the petitioner was close to her father,

who was his grandfather. She further stated that the petitioner called his grandfather “daddy”

and called his father by his first name. The petitioner’s grandfather died in 1986, and Naomi

stated that his death affected everybody; however, she did not notice anything unusual with

the petitioner after his grandfather died. She said that the petitioner was quiet as she expected.

Naomi testified that had the petitioner’s trial counsel asked her the questions that postconviction counsel asked her, she would have answered just as she had at the post-conviction

hearing.

Mary Gardner, the petitioner’s maternal aunt,stated thatshe testified at the petitioner’s

sentencing hearing. Mary further stated that the petitioner’s trial counsel did not contact her

before she testified, and she learned that trial counsel intended to call her as a witness while

attending the petitioner’s trial the day before. Trial counsel told Mary that he was going to

call her as a character witness to testify about what she knew about the petitioner. She said

that the defense team never asked her about the petitioner’s upbringing, character or

background.

Mary recalled that the petitioner’s mother had epileptic seizures “[p]robably every

three months” while she was growing up. She stated that besides having high blood pressure,

the petitioner’s mother had a normal pregnancy. She and the petitioner lived in the same

home with her after he was born, and she recalled that thirteen people were living in their

three-bedroom home. When asked how thirteen people fit in the three-bedroom home, Mary

replied, “We just got in the bed. Wasn’t no [sic] certain bed. Everybody just got in the bed.

28
. . . We didn’t have assigned beds. Wherever we laid down that’s where we were.” Mary

corroborated Naomi’stestimony that when they moved from Claiborne Homes, eight people --

her father, three sisters, a brother, the petitioner, and the petitioner’s brother -- shared a twobedroom home on Crump Avenue until the petitioner’s parents were married and moved their

immediate family to Whitehaven.

The petitioner was born prematurely and “had a lot of problems.” According to Mary,

the petitioner could not digest his milk and cried a lot, which caused them to frequently take

him to the Wellington Clinic for treatments. As a baby, the petitioner was slow to gain

weight, “tiny,”and did not “have any fat on him.” Mary stated that while growing up, the

petitioner was a loner who did not have many friends and kept to himself. He was not

talkative, and he entertained himself by playing with his toys. Mary said that the petitioner

did not complain and did not talk about anything that may have been bothering him.

Mary testified that the petitioner and his father did not interact much, and she could tell

that the petitioner was afraid of his father. She had never seen the petitioner and his father

argue and explained that, unlike his father, the petitioner was not “a talkative argumentative

person.” Mary stated that the petitioner’s father “was the person that gave orders and you had

to do what he said.” She further stated that if someone did not do what the petitioner’s father

ordered, then he would subject them to “a lot of verbal abuse[,] . . . mean talking, cursing,

[and] stuff like that.” She said that the petitioner’s father would yell, and he was “very loud.”

According to Mary, the petitioner did not look happy when he was in his father’s presence and

knew not to respond when his father verbally abused him.

Mary said that the home that the petitioner lived in with his parents and brother was

“immaculate.” She explained that the petitioner’s father had

a lot of orders. [The petitioner’s family] had to follow certain guidelines about

the house. They couldn’t just be themselves. They had to just follow whatever

he said to do in the house. Cleanliness, that was a must. They couldn’t have

anything laying around. They couldn’t eat and just be kids, just do what kids

do and that’s make a mess. They couldn’t do that kind of stuff.

She further explained that the petitioner’s father left several notes around the house with

reminders such as to clean up after themselves and turn off lights that were not in use.

According to Mary, the petitioner’s father was frequently at work and his sons would not see

him much. Mary had never seen the petitioner’s father act affectionately or offer praise

toward the petitioner or the petitioner’s brother.

From 1979 through 1996, Mary was a correction officer at the Shelby County Penal

29
Farm. As a correction officer, Mary had direct contact with inmates. She stated that during

the time that the petitioner was incarcerated at the penal farm, the facility’s conditions were

horrible, it was understaffed, and overcrowding and gangs were problems. Rapes, riots, and

several suicides occurred at the facility while the petitioner was an inmate. In addition,

several types of drugs and inmates who had HIV, tuberculosis, and hepatitis were in the

facility. Mary witnessed the thunderdome while she was an employee at the penal farm. She

stated that the thunderdome was “when the inmates get into like a wrestle mania and they all

congregate in the area and they just fight to the death.” Mary recalled that the thunderdome

caused several injuries and much bloodshed. Inmates suffered “busted heads” and were

severely beaten to the point where they had to have an ambulance take them from the facility.

Mary left her employment at the penal farm after she witnessed an inmate being killed.

Sammie Lee Netters, Jr., an inmate at the Northwest Correctional Complex, testified

that he had known the petitioner since grammar school. Mr. Netters described the petitioner

as a “complete introvert” while they were growing up and said that the petitioner was not

“extremely social” with others. He said that the petitioner would place a “two pronged

defense” up for himself. Mr. Netters said that the first prong was a physical defense, meaning

that the petitioner “would always try to keep enough distance between himself and other

people unless it was absolutely necessary that they had to be close to him.” The second prong,

which was mental, consisted of the petitioner being introverted and not becoming emotionally

attached to anyone but his mother and girlfriend.

Besides being the petitioner’s friend, Mr. Netters was the petitioner’s brother’s friend.

Mr. Netters stated that from the time he was around nine years old, he was at the petitioner’s

home “[p]ractically every day” while they were growing up because he played football and

ran track with both the petitioner and the petitioner’s brother. Mr. Netters recalled that the

petitioner had an “estranged” relationship with hisfather and thought that “the communication

that most fathers and sons would have . . . was [not] there.” He also recalled that the

petitioner “loved his mother to death.” Mr. Netters observed the petitioner’s mother to be

loving and protective toward the petitioner.

Mr. Netters said that he began to drink alcohol with the petitioner when they were

twelve years old. They drank as many quarts of malt liquor as they could, and they increased

their consumption as they got older. Mr. Netters denied smoking marijuana but said that the

petitioner occasionally smoked it. When Mr. Netters was thirteen, his family moved out of

the neighborhood, and he did not get to see the petitioner as frequently. He occasionally saw

the petitioner during junior and senior high school; however, he did not have “physical contact

with [the petitioner] on an intimate level” until they were both incarcerated in the county jail.

Mr. Netters said that when the petitioner arrived at the jail, the inmates had “complete

30
control of the jail.” He went on to explain that

[b]ecause [the inmates] outnumbered the correctional officers or deputy jailers

maybe 300 to 1 they assumed that the easiest way to control the jail would be

through one or a group of [inmates]. So, they gave [the inmates] free access to

do whatever [they] thought was necessary to maintain order and discipline.

Mr. Netters had a position of leadership, and the correction officers designated him to ensure

a group of pods “ran smoothly.” According to Mr. Netters, the correction officers entrusted

this responsibility to inmates that had a “barbaric mentality and could handle things physically

and could control people.” Mr. Netters said that no gang activity was going on in the jail

because gangs had not yet come to Memphis; however, the inmates sectioned themselves off

according to their neighborhoods. He said that powerful inmates could assume control of the

group of inmates from their neighborhood, and if a particular neighborhood had “strength or

numbers,” they could “dominate another neighborhood.”

Mr. Netters came from “one of the better neighborhoods” and stated that only three

people from his neighborhood were inmates at the penal farm. He said that because his

neighborhood was small in number, he and about fourteen other inmates created the

thunderdome to break up larger neighborhoods by having its members fight each other. They

would get the inmates to fight over privileges for the telephone and television, which was the

group’s only measure of control. Mr. Netters explained that the inmates could use the phone

during a five-hour period, and about 114 inmates would have to share the telephones during

that time. The “toughest” inmates would use most of the phone time, and the weaker inmates

would fight for the remaining time. According to Mr. Netters, the correction officers would

watch and encourage the fights. Inmates “had no other choice except to fight or just say [they

did not] want to use the phone.” If an inmate chose not to fight, inmates from their

neighborhood would beat them up.

When the petitioner arrived at the penal farm, Mr. Netters did not initially recognize

him. He said that for the first three weeks after the petitioner’s arrival at the penal farm, the

petitioner “would be up under a cover on the mattress in the back of the pod where the lights

[were] dim all day. The only time he would come out was when [they] had mandatory

showers . . . and to go eat. Other than that [the petitioner] was hiding.” During a phone call

home, Mr. Netters spoke with the petitioner’s brother who informed Mr. Netters that the

petitioner was in the same facility as Mr. Netters.

After speaking with the petitioner’s brother, Mr. Netters went to the middle of the pod

and called the petitioner up to him. The petitioner went to Mr. Netters; however, Mr. Netters

did not know it was the petitioner “because he still had his . . . Linus blanket around him like

31
he was trying to protect himself with that blanket.” Mr. Netters said that he interrogated the

petitioner about who he was because the petitioner and his brother had different last names.

During Mr. Netters’ questioning, the petitioner referred to Mr. Netters by his first name. Mr.

Netters found it “strange” that the petitioner “had sat in the pod for three weeks and knew who

[he] was and [the petitioner] never let it be known that . . . [he was] the friend [Mr. Netters]

used to have when [they were] growing up.”

Mr. Netters testified that he had seen the petitioner participate in the thunderdome. He

said that, initially, the petitioner would not fight back, and the other inmates would frequently

beat up the petitioner. He also said that the petitioner probably got beat up every day during

his first three weeks at the penal farm. Once Mr. Netters recognized who the petitioner was,

he “instantly brought him into the family[,] which is the gang family for running the jail.”

Inmates who were initiated into a “hierarchy” within the prison comprised the family.

Although they were not related, Mr. Netters began calling the petitioner his cousin to show

how “dear” the petitioner was to him. After this, “everyone instantly knew then that [the

petitioner] was off limits. He could not be touched.” Both the petitioner and Mr. Netters

remained incarcerated in the penal farm for six to eight months. Mr. Netters stated that while

incarcerated together, “everywhere [he] went [the petitioner] went. Everything [he] did, [the

petitioner] did.” The petitioner picked up Mr. Netters’ bad habits and imitated them and tried

to win Mr. Netters’ approval.

After authorities released the petitioner and Mr. Netters from jail, the petitioner

continued to imitate Mr. Netters and attempted to win his approval. Mr. Netters also

continued to protect the petitioner. Mr. Netters and the petitioner drank malt liquor together,

and they “consumed a large volume of alcohol in a short period of time on a daily basis.”

Specifically, they would purchase a case of malt liquor which contained twenty-four one-quart

containers and drink it over two and one-half hours. Mr. Netters said they primarily drank

malt liquor because it was cheaper; however, they occasionally drank hard liquor as well. The

petitioner also occasionally smoked marijuana.

Mr. Netters had the opportunity to observe the petitioner’s relationships with women,

and stated that the women with whom the petitioner had relationships “controll[ed] every

aspect” of the relationship. Mr. Netters said that the petitioner specifically tried to please his

mother and his girlfriend and did anything they asked of him.

Mr. Netters testified that after his release, he still engaged in criminal activity, and he

involved the petitioner in his crimes. Mr. Netters stated that he worked as a security guard

and used his uniform to impersonate a police officer, gain entry into people’s homes, and

burglarize them. Because the petitioner was not aggressive, Mr. Netters used him as his driver

during these burglaries, which Mr. Netters planned and executed by himself. Mr. Netters

32
testified that he and the petitioner committed “around 10” burglaries, but the petitioner had

only twice gone inside the houses that he burglarized. Out of the ten burglaries, authorities

only caught them once. Mr. Netters claimed that he encouraged the petitioner to become

involved in criminal activity, and the petitioner patterned his behavior from Mr. Netters.

At one time, Mr. Netters was in jail with Mitchell. Mr. Netters knew that authorities

had arrested Mitchell and the petitioner for murder, and he spoke with Mitchell about the

crime. Mitchell told Mr. Netters that

they had went on a burglary and when they got to the house they were just

going there to steal some things. He said someone came home and caught them

stealing some things and pulled a weapon out on them, a pistol. [Mitchell] said

as soon as he saw the pistol [he] ran. The man shot [the petitioner] or shot at

him and a struggle ensued over the gun.

Mitchell also told Mr. Netters that the man told Mitchell and the petitioner that he was going

to kill them for stealing his belongings.

Mr. Netters had perjured himself in a previous, unrelated case. He stated that at this

hearing, no advantage existed for him to testify the way that he did. He further stated that

there was an advantage for him to change his story when he perjured himself while testifying

in the other case.

Trezevant Gardner, Sr., the petitioner’s half-brother, testified that he was four years

older than the petitioner, and they had the same mother but had different fathers. Mr.

Gardner’s mother raised him and the petitioner in the same home. At the time the petitioner

was born, the family was living in Claiborne Homes with their maternal grandfather. Mr.

Gardner stated that he and the petitioner had a “daddy relationship” with their grandfather,

and the petitioner called him daddy. The petitioner’s biological father occasionally visited

their home.

Mr. Gardner corroborated the testimony that they moved to Crump Avenue and then

to Whitehaven after his mother married the petitioner’s father. He stated that his stepfather

was strict and left notes directing him and the petitioner to do certain things such as clean the

microwave after they had used it. Mr. Gardner recalled that his stepfather required him and

the petitioner to sweep the carpet a certain way after vacuuming so that the vacuum print

would not be on the carpet. They also had to back out of the room so that they would not

leave their footprints on the carpet. He said that he and the petitioner had to do to the same

chores on a rotating schedule. He agreed that his stepfather did not like their home to be

messy and expected him and the petitioner to be responsible, which he said the petitioner was.

33
His stepfather worked long hours and spent most of his time away from home. The

only time the boys spent with him was when they did yard work or took family trips. Mr.

Gardner said that because his stepfather was working, he attended neither Mr. Gardner’s

sporting events nor the petitioner’s band performances. His stepfather did, however, attend

practices and helped them practice at home. Mr. Gardner recalled that his stepfather drank

alcohol and had a gun that his stepfather would fire into the ground on New Year’s.

Mr. Gardner said that the petitioner was “very close” to their mother and spent more

time with her than he did. He testified that he and his brother had different personalities, and

he was more outgoing than the shy petitioner. Mr. Gardner recalled that until the petitioner

was six or seven years old, the petitioner had “bad nightmares” and often slept with his

parents at night. Mr. Gardner said his stepfather yelled at him and the petitioner, sometimes

loudly, and the petitioner “occasionally” cried when his father yelled at him.

Mr. Gardner played basketball, football, and participated in track and field while he

was in school. When their family first moved to Whitehaven, Mr. Gardner and the petitioner

both tried out for the YMCA track club and ended up joining different teams. When he ran

track, Mr. Gardner was close to his coach, who was a “very good” influence on him. Mr.

Gardner said that the petitioner did not have anyone outside his immediate family that was a

good influence on him. Mr. Gardner’s team earned trophies at the end of the season while the

petitioner’s team did not, and Mr. Gardner said that the petitioner was “a little upset about that

situation.” He said that he received “[l]ots of awards” for his participation in sports. Mr.

Gardner had between twenty and thirty trophies that his parents displayed in the living room.

Mr. Gardner stated that the petitioner was smaller than other children the petitioner’s

age and was picked on because of his size. Other students bullied the petitioner, and the

petitioner would come home with busted lips and other evidence that he had been in a fight.

Once the petitioner came home with a chipped tooth because “[s]ome guy blindsided him and

hit him in the mouth . . . .” One day the petitioner came home with a busted lip and his father

asked him what had happened and whether he was at fault. The petitioner had not started the

fight, and his father instructed him, “[N]ext time if he puts his hands on you[,] you do

anything necessary to defend yourself.” The petitioner’s father likewise instructed Mr.

Gardner to protect himself by doing “whatever it takes.” There was a punching bag at their

home which Mr. Gardner and the petitioner purchased. Mr. Gardner and the petitioner used

the punching bag to teach each other self-defense.

Mr. Gardner stated that when the petitioner was fourteen or fifteen, the petitioner’s

girlfriend’s uncle caught the petitioner and his girlfriend in the bedroom together and told the

petitioner’s father. Mr. Gardner said that the petitioner initially denied being in the bedroom;

34
however, when the two families got together to discuss the incident, the petitioner admitted

that he had been in the bedroom. After the petitioner admitted that it was him, the petitioner’s

father struck the petitioner in his face with his hand. The petitioner ran away to his aunt’s

house for a week, during which time the petitioner’s family did not know where he was. The

petitioner eventually returned home, and according to Mr. Gardner, the incident affected the

trust between the petitioner and his father. Mr. Gardner said that the petitioner was upset and

scared after the incident.

Mr. Gardner and the petitioner began drinking malt liquor together when they were

teenagers. Mr. Gardner denied that he was an alcoholic and stated that back then they would

only drink more than one quart of malt liquor in one sitting “[e]very blue moon.” According

to Mr. Gardner, “because [of the petitioner’s] body weight he couldn’t handle [the] . . . malt

liquor” and would become light-headed. Mr. Gardner testified that liquor also caused a

change in the petitioner’s body movements, speech, and temper by lessening his inhibitions.

While they lived in Whitehaven, Mr. Gardner and the petitioner hung out at Gaston

Park, which Mr. Gardner described as “[l]ike the projects . . . .” They visited Mr. Gardner’s

friend and played basketball. On July 3, 1990, they were in Gaston Park drinking and playing

basketball. Over the course of three or four hours that night, they drank a couple quarts of

malt liquor. The petitioner continued to drink while Mr. Gardner played basketball. The

petitioner was sitting in the picnic area with his cousin, and some men began to shoot

fireworks toward them. A confrontation occurred, and one man that was shooting fireworks

went to get his cousin who had a gun. The man pointed the gun, which was a .22, at Mr.

Gardner’s head. The petitioner hit the man’s hand, the gun went down, and the man then

pointed the gun at the petitioner. The petitioner stood in front of Mr. Gardner to protect him,

and the man discharged the gun at the petitioner; however, the gun misfired. The man fired

the gun again, and this time it discharged and a bullet struck the petitioner’s left shoulder.

The shooter ran away, and Mr. Gardner and others attempted to apprehend him but were

unsuccessful. Mr. Gardner said that the petitioner, looking “dazed” and “sluggish,” told Mr.

Gardner that the man had hit him with the bullet. Mr. Gardner testified that the petitioner was

bleeding “[v]ery little at the time.”

Mr. Gardner and other people drove the petitioner to Methodist South Hospital, which

was about fifteen minutes away from the park and close to the petitioner’s home. Methodist

South Hospital was unable to treat the petitioner, so they transferred him via ambulance to

Methodist Central Hospital. Mr. Gardner followed the ambulance to the hospital where

3

doctors performed surgery on the petitioner. Mr. Gardner had notified his parents about the

petitioner’s injury, and they met Mr. Gardner at the hospital. Mr. Gardner worriedly waited

 Methodist Central Hospital is now Methodist University Hospital. 3

35
to see if the petitioner’s surgery was successful but was unable to see the petitioner until the

next morning. He described the petitioner as looking “woozy” and having tubes in him. Mr.

Gardner visited his brother every day during the week or so that he was hospitalized. Mr.

Gardner testified he did not notice any change in the petitioner, such as being more or less

fearful, truthful, or isolated, after the petitioner returned home from the hospital.

Mr. Gardner visited the petitioner while the petitioner was an inmate at the Shelby

County Jail. Mr. Gardner testified that this was the petitioner’s first time being away from

home, and the petitioner looked “kind of embarrassed or . . . ashamed.” Mr. Gardner also

visited the petitioner when the petitioner was an inmate at the penal farm and said the

petitioner looked the same as when he visited him at the county jail.

Mr. Gardner stated that the petitioner’s defense counsel contacted him about testifying

at the petitioner’s trial “about a week” before the trial. Defense counsel actually spoke with

his wife, who delivered the message to Mr. Gardner. Mr. Gardner said that he never

personally spoke with anyone from the defense team. Mr. Gardner testified that he attended

the petitioner’s trial; however, no one talked to him about testifying, and he did not know that

he was going to testify until counsel called him to the stand. There was no pretrial preparation

for his testimony, and he did not know what he was supposed to testify about. Mr. Gardner

testified that had trial counsel asked him if there was anything about the petitioner’s character

and background that he wanted the jurors to know before they sentenced him, he would have

answered that the petitioner is “a loving person. Giving. And doesn’t deserve to die because

he has kids.”

Dr. Pamela Auble, a clinical neuropsychologist, testified as an expert in

neuropsychology. Dr. Auble was licensed in Tennessee and had been practicing since 1985.

To prepare for her testimony and help form the basis of her opinion, Dr. Auble reviewed the

petitioner’s school and medical records, presentence report, and the Tennessee Supreme

Court’s decision in this case. Dr. Auble also met with the petitioner for an hour and forty-five

minutes on July 31, 2002, to interview him and perform a psychological evaluation on him.

She said that the petitioner was cooperative during the interview and evaluation.

During the interview, Dr. Auble learned about the petitioner’s early background,

including his living arrangements, his mother’s medical condition, and family composition,

which the other witnesses had testified about earlier. Dr. Auble stated that she learned, from

previous testimony at the post-conviction hearing, that the petitioner was small for his age

when he was growing up, and he wore clothes that were two sizes smaller than the other

children. Dr. Auble further stated that because he was smaller, the petitioner was an “easy

target” and was picked on by other children. From what others had said about the petitioner

and Mr. Gardner, Dr. Auble understood that the petitioner was not as athletically talented as

36
Mr. Gardner.

Dr. Auble also learned, through the previous post-conviction testimony, that the

petitioner’s father was “someone who [was] a pretty critical and demanding individual. That

he was someone who did not praise [the petitioner] and often criticized him.” She went on

to say that the witnesses described the petitioner’s father “as a . . . fairly rigid individual who

had rules for how the children should conduct themselves, [and] standards for how clean the

house should be kept.” The petitioner told Dr. Auble that his father did not attend his band

performances or other school activities. Dr. Auble learned that the petitioner’s father worked

long nights at the post office until the petitioner was ten, at which time he began working

days.

Dr. Auble discovered that the petitioner repeated the first grade because he “apparently

didn’t make any progress in mathematics”; however, “he did somewhat better” during his

second year of the first grade. From the third grade through the fifth grade, the petitioner

made average grades. Achievement tests suggested that the petitioner excelled in areas that

required “rote learning,” which she described as “spitting back what you’ve learned; things

like spelling, . . . math computation, [and] learning his tables.” She stated that he tested the

lowest in areas where he had to apply knowledge such as reading comprehension and applied

math problems. The petitioner’s test scores in junior high school were much lower than his

previous scores, and his test scores in high school were also substantially lower.

Dr. Auble opined that based on his grades and school records, the petitioner did not do

as well academically during histransition from elementary school to a new junior high school.

She stated that this may have been because in junior high and high school the petitioner had

to do more reasoning and use what he had learned. She said the petitioner remained small in

junior high school and did not begin to grow until late adolescence, which again caused the

other students to pick on him. During junior high and early senior high school, the petitioner

had social trouble and began getting into fights. Until the petitioner was in the tenth grade,

he had a good attendance record at school. Mr. Auble testified that the petitioner’s poor

performance despite his good attendance suggested that although he was present, the

petitioner could not use the “basic tools” he had learned to “do more of that kind of

independent thinking in junior high and high school, particularly high school.”

The petitioner continued to take achievement tests in junior high school and began

taking proficiency tests in senior high school. Dr. Auble testified that proficiency tests seek

to detect whether a student has sufficiently learned “the basics” to graduate senior high

school. While in the ninth grade, the petitioner failed the math and language portions of his

proficiency test. The petitioner repeated the ninth grade and retook the proficiency exam, this

time passing the math section and failing the language section. In the tenth grade, the

37
petitioner passed the language section. The petitioner failed the eleventh grade due to fights

and suspensions. While repeating the eleventh grade the next year,school authorities expelled

him.

During the interview, the petitioner told Dr. Auble that when he was around fourteen

or fifteen years old, he began drinking malt liquor and smoking marijuana every other day

because they calmed him. After high school, the petitioner continued drinking malt liquor.

He had worked at fast food restaurants; however, he held a position unloading trucks for Nike,

which was a temporary job, the longest. Dr. Auble testified that most of the petitioner’s

employment was temporary, and he had trouble staying employed because of his record.

Dr. Auble was aware of the petitioner’s involvement in the shooting on October 26,

1990, during a dance at Oakhaven High School. On October 30, 1990, authorities arrested

the petitioner on charges unrelated to the October 26 shooting, but they later found out that

the petitioner was involved in the October 26 shooting. The petitioner pleaded guilty to those

charges, and the court used those charges as aggravating circumstances when sentencing the

petitioner in the present case. After pleading guilty, the petitioner was incarcerated in the

Shelby County Jail until April 1991. Through her preparation, Dr. Auble also learned about

the petitioner’s relationship with Mr. Netters. In addition, the petitioner told Dr. Auble about

the circumstances surrounding his case when a man shot him at the park, which caused him

to be hospitalized for six days. Dr. Auble attempted to speak with the petitioner about

circumstances surrounding the present case; however, she said that he did not wish to discuss

the case with her, and they never discussed it.

Dr. Auble administered a Wechsler Adult Intelligence Scale -III (WAIS-III) test on the

petitioner. She described the test as “an individually administered IQ test” and stated that it

was “probably the most widely used intelligence test.” She went on to explain that the test

“consists of . . . [eleven] basic subtests. And there’s three additional supplemental subtests.

The subtests measure different kinds of knowledge and reasoning. They can be divided into

verbal and nonverbal. And you can get IQ scores for both the verbal abilities and the

nonverbal abilities.” The nonverbal abilities test is also referred to as a performance IQ test.

The test generates an individual subtest score and a combination of the scores, which is the

full scale IQ.

The petitioner’s lowest subtest scores were in vocabulary and mental arithmetic. Dr.

Auble stated that the petitioner’s scores in these areas were in the second percentile, meaning

that “out of . . . 100 people, 98 would have done better than he did.” She further stated that

the petitioner scored below average, specifically in the ninth percentile, on all of the verbal

subtests that tested abstracted verbal reasoning. The petitioner was also in the ninth percentile

on general world information, including geography and history.

38
The petitioner’s strongest area, compared with his other scores, was block design

where he used red and white blocks to copy red and white patterns. The petitioner was in the

25th percentile for this area, and Dr. Auble stated that copying symbols was a strong suit for

the petitioner. The petitioner’s weakest areas on the nonverbal subtests were abstract visual

reasoning and a test which required him to “take a series of pictures of situations of people

doing things and put them into sensible order so that the pictures follow one to the other.”

She said that these subtests being the petitioner’s weakest areas suggested that the petitioner

had limited ability to “process information, to abstract material, to understand and to reason.”

She further explained that

on the similarity subtests where he is given two words and he’s got to come up

with similarities between them, the best answers are abstract categories. And

[the petitioner] tends not to give those answers but rather to give concrete

features or things that are in common as features between the two words rather

than an overall category.

The petitioner also had trouble with matrix reasoning, which is an abstract visual reasoning

test. She said that the petitioner’s test results indicated “that his ability to reason and think

where he’s got to put things together and come up with overarching categories or come up

with solutions that take into account all the pieces of the problem . . . are limited.”

The petitioner’s final verbal IQ score was 72, and his final performance IQ was 81.

Dr. Auble used these subtest scores in a formula and calculated a full scale IQ score. The full

scale IQ score gave Dr. Auble an idea of how the petitioner was functioning intellectually.

The petitioner’s full scale IQ score was 75. She testified that the IQ test scores were

structured on a bell curve. She further testified that

[i]ntelligence in a population has been found to fall in . . . what’s called the

normal distribution or a bell curve. The . . . middle of the distribution is a score

of a 100. And that’s the 50th percentile so that the average range is . . . that

scores that are clustered around 100: scores from 90 to 109. About two thirds

of the population falls within the average range.

The ends of the bell curve as - - you know, most people are average.

Fewer people are above average and fewer people are below average with the

tails being the most rare so that [the petitioner’s] IQ of 75 would put him at the

left-hand end of the bell curve. In other words, 95 percent of the people would

fall above his score and 5 percent would fall lower.

39
The standard deviation, which is the variability around what is an average score, was fifteen,

and scores from 85 to 115 are one standard deviation around the mean score, 100.

Dr. Auble testified that under Tennessee law, a person with an intelligence score of

seventy or below is considered mentally retarded. Other sources, such as the Fourth Edition

of the Diagnostic and Statistical Manual of the American Psychiatric Organization (“DSMIV”), use different intelligence scores to classify mental retardation. The DSM-IV considers

“an IQ of approximately 70 because there is error in the estimates. And so there’s about five

points roughly of error. So they say that approximately 70, but possibly up to 75 given the

error if there are concurrent adaptive deficits in functioning as well.”

Dr. Auble also conducted a Wechsler Memory Scale, Third Edition (WMS-III) exam

on the petitioner. This exam tested the petitioner’s learning and memory. This test is scored

the same as the WAIS-III in that 100 is the average, 50th percentile, score, and the scores

diminish gradually in both directions. Evaluators norm the tests together so they can compare

the test taker’s memory and intelligence and determine whether their memory is what they

expect of someone with their intelligence.

According to Dr. Auble, the petitioner did “relatively well” at remembering the things

that he saw during the WMS-III exam and did “very good” at remembering facesin particular.

She stated that the petitioner’s “visual memory is low average and about what you’d expect

for somebody with his overall intelligence.” She further testified that the petitioner’s “verbal

memory, on the other hand, was not good. His immediate recall for things that he was told,

stories and pairs of words, was only at the [1]st percentile. His auditory immediate was 62.”

The petitioner had trouble remembering what the doctor told him while testing, and Dr. Auble

said that only three percent of the people with the petitioner’s IQ would perform as poorly as

the petitioner did on the auditory immediate memory test, and “only [5] to [10] percent of

them would perform as well as he did on the auditory delayed memory.” Dr. Auble stated that

the petitioner’s poor memory scores indicated that learning from experience and

understanding things based on what he has heard or known previously would be difficult for

the petitioner.

Dr. Auble also did a booklet category test that tested the petitioner’s mental flexibility

in a frontal lobe test. This test “measures the ability to use information, to come up with

general principles and then to take those principles and apply them in a systematic way.” Dr.

Auble further explained that the test sought to measure whether the petitioner could learn

from his experience, abstract principles from his mistakes, if any, and whether the petitioner

could put together and understand many pieces of information. The test consisted of the

doctor giving the petitioner a visual design and the petitioner coming up with a number

between one and four. The doctor would then tell the petitioner whether his number was

40
correct. The doctor would then give the petitioner another design, and the petitioner must

come up with a number between one and four. The doctor, again, would tell the petitioner

whether he selected the correct number. Dr. Auble said that she tells the test takers, including

the petitioner, that throughout the series of designs there is one idea and that once they get the

idea, they will be able to answer every subsequent question correctly.

Dr. Auble stated that the petitioner did well on the first subtest which consisted of

Roman numerals. She described the first subtest as “very easy,” the second subtest as “pretty

easy,” and the third subtest as “somewhat more complicated” than the first two. During the

third subtest, Dr. Auble performed forty trials with the petitioner. She stated that the

petitioner’s performance on subtest three “was essentially random.” The petitioner made

thirty-one errors during subtest three, and she stated that he could not make sense of the

information she had given him. Dr. Auble said that the petitioner could get the idea during

other subtests; however, if the image changed, the petitioner would lose the idea and give

incorrect answers. The petitioner could not “transfer and say oh, this is the same principle,

but it’s just a . . . different picture.” For this subtest, the petitioner performed two standard

deviations below the mean score, which was in the impaired range. Dr. Auble testified that

the test measured the petitioner’s “ability to process information, to abstract from his

mistakes, to learn from his experience, to engage in logical reasoning to see how one thing

links to the next.”

Dr. Auble also administered the Boston Naming Test, which was “a very simple test

of just pictures of a common objects, and [the petitioner had] to name them.” On this test, the

petitioner tested in the impaired range. She stated that the petitioner knew several pictures,

but he could not name them. According to Dr. Auble, this indicated that the petitioner had

a language production problem because the pictures were “fairly obvious.” There were 60

pictures and the average score is 55 out of 60. The petitioner scored a 38, which Dr. Auble

said was “unusually low.” The petitioner was in the first percentile for this test.

Dr. Auble performed a Delis Kaplan Executive Functioning System Test on the

petitioner. This test consisted of subtests which measure frontal lobe functioning. Dr. Auble

administered the Tower Test, which required the petitioner to put towers together, and a

second subtest which tested abstract reasoning. Dr. Auble explained that frontal lobe function

testing evaluates the whole brain “because it involves abstracting information, using it, [and]

applying it in a reasonable fashion.” The petitioner performed below the first percentile on

this test.

The twenty questions portion of the Delis Kaplan test is designed to measure “the

ability to link together information to draw conclusions, to abstract information from errors

of mistakes, to learn from you experience, [and] to reason in a logical way.” Dr. Auble gave

41
the petitioner a page with thirty pictures of things like a train, cow, or banana. Dr. Auble told

the petitioner that she had a picture in her mind, and he was to ask her questions to figure out

which picture she had chosen. The item that Dr. Auble selected was the picture of a banana.

She said that the petitioner first asked whether the picture was of something one could eat, to

which she responded yes. The petitioner’s next question was whether the item was something

that went on a railroad track. Dr. Auble said that this showed that the petitioner “did not take

into account that [she] told him it’s something you eat because there’s nothing that you eat

that belongs on a railroad track.” She further said that the petitioner continued to ask

questions that would not apply to something that one could eat. The petitioner’s nineteenth

question was whether the item was “a food that is yellow and you peel it,” to which Dr. Auble

replied yes. The petitioner still did not ask whether the item was a banana, but rather asked

whether “it [was] something you cut with.” Dr. Auble “worried about how [the petitioner]

was doing[,] [a]nd after the end of this test, [she] went and read him the instructions all over

again because [she] thought well, . . . somehow he just didn’t get it.” Dr. Auble performed

three additional trials on the petitioner, and he did the same. The petitioner’s results on this

test were consistent with his results from the booklet category test, the WAIS-III subtest, the

petitioner’s school records, and the achievement testing done in school.

The petitioner’s performance was also consistent with the Third Edition, Woodcock

Johnson Test of Achievement which Dr. Auble performed on the petitioner. During Dr.

Auble’s achievement testing of the petitioner,she found that the petitioner had a “pretty good”

ability to read single words, rapidly read simple sentences, and was at the seventh or eighth

grade reading level. The petitioner’s reading comprehension and ability to use the

information that he read, however, was only at a third grade level.

Finally, Dr. Auble administered a Rorschach ink blot test. According to Dr. Auble, the

petitioner’s results on this test were consistent with the other tests in that the petitioner

“tended to give simple answers to simple aspects of the ink blots” which suggested that the

petitioner “responds to superficial aspects of situations and doesn’t take complexity into

account.” She stated that the petitioner’s responding to the colors on the ink blots suggested

that he is an emotional responder because the colored ink blots tend to correlate to emotional

responses. She further stated that the petitioner’s answers “were not always common answers

or usual [which indicated] that [the petitioner] may see the world differently than other

people. And [the petitioner] didn’t give [her] any humans on the Rorschach which suggests

that he may not understand people very well.”

Dr. Auble testified that the petitioner seemed to be trying when he took the tests, and

she considered the test results to be valid. Dr. Auble performed malingering testing, which

tested the effort that the petitioner put forth during the test, and the petitioner scored perfectly.

The test consisted of Dr. Auble showing the petitioner fifty pictures and asking the petitioner

42
if he recognized the pictures. During a second test, Dr. Auble again showed the pictures to

the petitioner and asked him if he recognized them. A score of 45 or less on the second test

indicates a lack of effort. The petitioner could remember the pictures and scored 50 on the

second test, which suggested a good effort. Dr. Auble stated that “even pretty severely

impaired people could get almost all of them right or all of them right.”

Dr. Auble reviewed trial counsel’s July 4 letter to the petitioner in which he attempted

to explain the felony murder charge and a problem with identifying the correct victim. When

asked whether, given the tests that she performed on the petitioner and the petitioner’s

performance on the tests, the petitioner could easily understand the language in the letter, Dr.

Auble replied that she could not tell scientifically because she did not perform a reading level

test of the information contained in the letter. She stated that the letter appeared to be

relatively complex. Dr. Auble also reviewed the plea bargain documents and said that to

understand the documents, the petitioner would need more explanation than a “normal

person.” She stated that both the July 4 letter and the plea documents contained language at

a higher level than what someone with a third grade reading level could easily comprehend.

In her final Forensic Neural Psychological Evaluation, Dr. Auble stated,

“[N]eurospsychologically I concluded that [the petitioner] had impairments in his verbal

abilities relative to his nonverbal abilities. I concluded that his intelligence is limited . . . . I

concluded that he had difficulty in school such as what we’ve talked about.” The petitioner’s

deficits in language and verbal knowledge, verbal memory, and verbal attention were

associated in the left hemisphere of the petitioner’s brain. There were also deficits in

functioning associated with the petitioner’s frontal lobe. She testified that because the

petitioner had difficulty in school and had to repeat grades, some of his deficiencies had been

present for a long time. Dr. Auble did not know the etiology of what may be causing the

petitioner’s deficits in the left hemisphere of his brain and possible deficits in the frontal lobe.

Dr. Auble further concluded that the petitioner’simpairments “would have contributed

. . . to his behavior at the time of the offense.” She stated that the problems with the

petitioner’s left hemisphere and frontal lobe

would make [the petitioner] more likely to behave impulsively, to take

information in from the world . . . in a way that ignored some aspects of the

situation, that he would have trouble connecting up cause and effect some from

learning from what he’s seen and making a plan to do something next that

would be reasonable or rational.

She agreed that the petitioner had deficits in the way he adapted to the world. Drinking

alcohol and smoking marijuana would make the petitioner’s deficits worse. Dr. Auble

43
testified that she thought the petitioner’s impairments were “something that would enter into

his functioning at any time including the night of the crime.”

On cross-examination, Dr. Auble testified that she interviewed the petitioner before

she tested him and got his view of the world by asking him questions, including questions

about his background. Dr. Auble did notspeak with the petitioner’s father or personally speak

with any of the witnesses. She stated that, during the interview, the petitioner told her that his

father was “nice but strict,” and she further stated that the petitioner loved his father. The

petitioner also told Dr. Auble that he had never seen his father intoxicated.

Dr. Auble did not read anything about the trial, and the petitioner did not tell her his

version of the events. Because the petitioner did not discuss the facts surrounding his case,

Dr. Auble was unable to decide the petitioner’s competence at the time of the burglary.

Dr. Auble did not diagnose the petitioner and was unaware of any prior diagnosis of

mental illness. She agreed that the petitioner’s problems in school manifested themselves

early in elementary school, and continued throughout middle and high school. The petitioner

performed best in elementary school. She stated that the petitioner’s problems in school

predated when he was shot and when he was beaten up in jail.

Dr. George W. Woods, a neuropsychiatrist, testified as an expert in neuropsychiatry.

He stated that he performed a neuropsychiatric evaluation on the petitioner and met with him

on three occasions for five to six hours. The petitioner was cooperative during the meetings;

however, he was not able to extensively talk about the circumstances of the burglary in this

case until the last meeting. To prepare for his testimony, Dr. Woods reviewed prior

witnesses’ post-conviction testimony, and the petitioner’sschool, prison, and medical records.

He also interviewed the petitioner’s family, reviewed a lawsuit filed against Shelby County

for the jail conditions during the time the petitioner was incarcerated, reviewed Dr. Auble’s

neuropshychologic tests and report, consulted with Dr. Auble, and reviewed the state supreme

court’s opinion in this case.

Dr. Woods testified that the petitioner’s mother having seizures and the petitioner

being a small baby with eating problems were significant because a mother having seizures

while carrying a fetus in utero could possibly cause prenatal difficulties. He explained that

[s]eizures are . . . an electrical phenomenon in the brain. But they actually have

physiological consequences . . . . A seizure is really the overt manifestation of

ongoing electric activity.

. . . .

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And so the idea that . . . the only time they’re having electrical problems

is when they have a seizure is incorrect. In fact, a person that is having a

seizure has aberrant or unusual electrical activity most of the time. And when

a seizure breaks through, it’s really a break through phenomenon. It really is

an over manifestation of something that’s ongoing all the time.

We don’t really know necessarily whether this had an impact on [the

petitioner’s] prenatal and perinatal development. But we do know that his

mother had a history of seizures. And we also now are looking at fairly

significant neurological impairments.

Regarding the petitioner’s father, Dr. Woods stated that the petitioner and his father

did not significantly bond before the petitioner was five years old. He further stated that the

time before a child reaches the age of five is the most important for developing such a bond.

Dr. Woods testified that the petitioner and his father had a “conflicted relationship” because

the petitioner’s father “worked like a dog” to provide for his family; however, he was also

harsh, critical, and rarely praised the petitioner. He stated that the petitioner’s living in a

three-bedroom home with thirteen people and no assigned sleeping areas early in hislife could

potentially have caused “chaos and impaired coping mechanisms.” The living arrangements

did not give the household members “a certain sense of privacy or a certain sense of self . .

. it was very chaotic[,] . . . very confusing[,] and very fluent.”

Dr. Woods opined that the petitioner’s having to repeat the first grade was not a

socialization issue, which includes the abilities to socialize, play appropriately, not to

interrupt, and follow directions. He stated that it appeared that academic issues, particularly

reading, caused the petitioner to repeat the first grade. These academic issues are left

temporal lobe issues as noted by Dr. Auble. He stated that until around the fifth grade, the

frontal lobes, which will eventually be 35 percent of the brain, are not fully developed in

children. During this time, children have the parts of the brain that respond to rote learning.

The frontal lobes begin developing when children are ten to twelve years old and impaired

lobes can cause developmental impairments and diminished educational abilities.

Looking at the petitioner’s school records, Dr. Woods stated that in the first grade,

there was a red flag because the petitioner had difficulty reading. The petitioner did rather

well with rote learning until the sixth grade, when frontal lobes begin developing and children

transition from rote learning to abstract learning. In the eight and ninth grades Dr. Woods said

that the petitioner evidently had an impairment in the conceptual abstract part of his brain.

According to Dr. Woods, at this point, the petitioner should have been able to do “abstract

thinking and more conceptual thinking”; however, this thinking did not “kick in” and the

petitioner began having more problems in school.

45
The petitioner was small growing up which subjected him to bullying. Dr. Woods

learned from the petitioner’s aunt that, while growing up, the petitioner wore clothing two

sizes smaller than other children his age. The petitioner told Dr. Woods about the incident

when someone beat him up and his father told him to do whatever it took to keep people off

him.

Dr. Woods noted “a difficult sibling difference between [Mr.] Gardner who was an

excellent athlete with multiple awards and [the petitioner] who was not as adept in any

particular field.” Dr. Woods did not see any indication of a conscious comparison, but he

observed that there was a “comparison of omission.” The petitioner’s parents having a trophy

case for Mr. Gardner and excluding the petitioner’s trophy was a “clear separation between

the son that was doing very, very well and the son that was less successful.” Unlike the

petitioner, Mr. Gardner had the influence of his coaches; however, Dr. Woods stated that the

thing that most differentiated the brothers was the petitioner’s cognitive abilities. The

petitioner’s impaired cognitive abilities influenced not only people’s behavior toward the

petitioner, but also the petitioner’s ability to access positive role models. The petitioner’s

frontal lobe impairments prevented him from truly accessing and effectively using outside

information.

Dr. Wood stated that the petitioner’s use of malt liquor, a fortified alcohol which

contains a derivative of formaldehyde in its development process, could have impaired the

petitioner’s frontal lobes and the cerebellum, which controls the ability to move. The

petitioner’s using drugs and alcohol during his adolescence affected “the frontal lobe of [his]

brain at the time that it is trying to grow.” Dr. Wood stated that the petitioner had “the

pedigree” for becoming a heavy drinker in that his father possibly had problems with alcohol

and because his paternal and maternal grandfathers died of sclerosis of the liver, which

frequently occurs because of alcoholism.

Dr. Wood reviewed the medical records from when the petitioner was shot at Gaston

Park. Dr. Woods said that the injury was serious, and the petitioner lost consciousness. Dr.

Woods noted that in the medical reports, hospital personnel asked the petitioner if he had lost

consciousness, and the petitioner responded that he had lost his eyesight. Dr. Woods found

this interesting because the doctors had reported that the petitioner lost much of his blood, and

his lung had been punctured but not deflated; however, “the idea of him not being able to see

was something that [the petitioner] was able to relate rather than the word ‘consciousness.’”

After he was shot, the petitioner began carrying a gun and experienced traumatic distress

symptoms such as having nightmares of being shot and waking up screaming. Dr. Woods

stated that, in his opinion, the petitioner also had symptoms of hyperactivity and aroused

startle response. Dr. Woods explained the effects on the petitioner, given his neurological

46
impairments, as the petitioner having “a brain that can see every tree but can’t tell you it’s a

forest. [The petitioner] does not see the relationship, the ability to sequence either his

behavior or perhaps others’ behaviors as well.” He went on to explain that the petitioner

“often is not able to effectively think his way through problems to solve problems or to kind

of sequence his behavior. . . . [H]e isn’t very facile with verbal information. . . .” He noted

that although the petitioner had good language skills, he had impaired verbal comprehension.

Dr. Woods testified that when people “are set up for fight or flight or any type of anxiety, it

often impairs [their] ability to register information.” He further testified that certain brain

impairments may also weaken registration.

Dr. Woods recalled the incident when the petitioner got into a confrontation while

going to a dance at a high school that led to the petitioner shooting at the other men. This

incident occurred approximately three and a half weeks after the petitioner was shot. Dr.

Woods stated that the petitioner described himself as “very hyperactive” during this time, and

Dr. Woods said that the petitioner’s behavior was “certainly . . . consistent with someone that

[was] suffering from traumatic stress[,] . . . totally spontaneous . . . by all indications,” and

“[a]bsolutlely” disproportionate to the situation.

Dr. Woods testified that the incidents that happened to the petitioner while he was

incarcerated at Shelby County Jail in October 1990 caused the petitioner to isolate and

withdraw himself. He said that the petitioner recognizing Mr. Netters, who was essentially

running the pod, but not contacting him or identifying himself, showed the petitioner’s

inability to observe a situation, think about it, and sequence his thoughts to create a better

circumstance. The petitioner ultimately had a mentor/mentee relationship with Mr. Netters

which continued after they were released from jail. The petitioner told Dr. Woods that he

looked up to Mr. Netters and thought he was smart and tough. The petitioner said that he had

no role models, was isolated from his family, and Mr. Netters was “the worst of the bad

people” with whom he hung around and modeled his life after.

Dr. Woods reviewed the mitigation evaluation where the mitigation investigator

checked off that the petitioner had dizziness, fainting spells, dropping objects, and suicide

attempts as symptoms but also wrote “none” under the symptom checklist. The checklist also

had “sinus problem” handwritten on it. Dr. Woods stated that “to any doctor[,] dizziness,

fainting spells, and dropping objects would be of clinical importance.” Dr. Woods said that

it was “very doubtful” that these symptoms related to a sinus problem, and if he had seen this

checklist, he would have followed up on the symptoms. He stated that given the petitioner’s

mother’s “history of seizures and having some type of cognitive impairment, you would want

to see if there’s any genetic history.” Dr. Woods said that his initial step would have been to

perform a thorough neuropsychological battery which would have allowed him to see the

other cognitive impairments from which the petitioner suffered.

47
Dr. Woods recounted the circumstances surrounding the burglary of the victim’s home

as told to him by the petitioner and as he read in the transcripts. He stated that the petitioner

burglarized the victim’s home and sought Mitchell’s help in carrying a large television. The

petitioner used his girlfriend’s car and picked up Mitchell so that Mitchell could help him.

While they were burglarizing the victim’s home, the victim returned, parking his vehicle in

the driveway and blocking in the petitioner’s girlfriend’s car. The victim entered his home

surprising the petitioner and Mitchell, who had run outside and attempted to leave. They

realized the victim’s vehicle had blocked them in the driveway and saw the victim in the

carport door frame with the keys to his vehicle in his hand. The victim said something about

the keys and went back into his home. The petitioner went toward the house and confronted

the victim at the doorway while Mitchell stayed outside. Gunshots went off, and the

petitioner, with a gunshot wound to his side, exited the home with the keys to the victim’s

vehicle. The petitioner gave the keys to Mitchell, who moved the vehicle. Once the victim’s

vehicle was out of the way, the petitioner and Mitchell left. The petitioner told Dr. Woods

that he had been drinking that night.

Dr. Woods reviewed the victim’s medical records and observed that the victim had

coagulopathy listed on his face sheet, which indicated that he “had a disease process in terms

of [his] blood clotting properly.” The victim’s records also listed coagulopathy on the page

which said diagnosis and operation, and his operating room records showed that the doctors

cancelled the procedures due to coagulopathy. The victim’s progress notes also mentioned

coagulopathy. Dr. Woods explained that “coagulopathy is an inability of the blood to clot

properly, and there are a number of reasons why one could have coagulopathy.” Certain

drugs, a lack of fibrinogen, a lack of Factor K, and alcohol, among other factors, can cause

coagulopathy. Coagulopathy increases the amount of visible bruising when one is struck with

an object. The Med Emergency Room/Trauma Physician Progress Notes contained in the

victim’s medical records showed that the victim tested positive for ethyl alcohol, which is

alcohol for consumption, at .28%; however, the toxicology screen did not detect the presence

of alcohol.

Dr. Woods reviewed the testing that Dr. Auble performed on the petitioner. Dr. Woods

found it important that Dr. Auble performed a malingering test and stated that the overall

pattern of the test showed that the petitioner had “stress and weakness . . . in the way that his

brain functions. There are some parts of his brain that functioned reasonably well, there are

other parts that don’t function as well.” Dr. Woods further observed that the petitioner clearly

did not attempt to malinger on the test of a lingered memory, which is a forced choice test that

requires the test taker to make an active choice. Dr. Woods noted that the petitioner’s

problems with executive functioning, the functions of the frontal lobe that allow one to weigh

and deliberate, sequence behavior, and deductively reason, were lower and more defective

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than someone who has an IQ of seventy-five. He stated that the petitioner’s brain did not

“work in very important problem solving ways. He has difficulty taking in information and

using it in a way that works for him.” Dr. Woods further stated that the petitioner’s “frontal

lobe, the part of the brain that really is designed to help him problem solve[,] is probably the

worst functioning part of his brain.” Dr. Woods testified that, in his opinion, the petitioner’s

problems in these areas are consistent with his behaviors.

Dr. Woods also reviewed Dr. Auble’s conclusion and stated that he agreed with it,

“particularly as it relates to the frontal lobes.” Dr. Auble stated that the petitioner’s

performance on the Delis Kaplan test and the Categories tests, which “anyone with an intact

frontal lobe should be able to do . . . very effectively,” indicated that the petitioner had

extraordinary difficulty problem solving and being able to figure out the

circumstances that are going on and, in fact, his test style is an impulsive one,

and that is to just kind of guess or to act rather than to have any . . . ongoing,

even poor . . . methodology for solving his problems.

He doesn’t . . . process information well. He can’t look at a

circumstance and kind of put it together, even relatively simple circumstances.

In his supplement, Dr. Woods concluded that the petitioner “has some stress but that

his specific weaknesses, particularly as it relates to his frontal lobe functioning, are really

found in . . . the crime itself. But they are also found in other aspects of [the petitioner’s] life,

his real inability to weigh and deliberate.” For example, Dr. Woods spoke about the letter to

Mitchell that was handwritten by the petitioner and whereby the petitioner detailed aspects

of the crime that only he or Mitchell could have known. Dr. Woods recalled that the

petitioner denied that he wrote the letter for some time. Dr. Woods testified that although it

may have been that the petitioner was simply denying the letter,

when you look at the way [the petitioner’s] brain works you really see that this

kind of inability to weigh things properly, his kind of inability to . . . understand

how these issues work, are absolutely consistent with the impairments in his

brain whereas other aspects like his ability to read, for example, which would

be . . . other parts of his brain, are reasonably intact.

Dr. Woods testified that, on the night of the crimes the petitioner going back inside the

home with the victim inside after he and Mitchell had escaped was relevant regarding the

petitioner’s neurological functioning. He further testified that for the petitioner “to actually

return into the house to go around the car, come back into the house after he had already left

the house is, in [his] opinion, a real example of [the petitioner’s] inability to . . . think through

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what’s the best thing to do in this situation.” Dr. Woods said that the petitioner told him that

he was confused during the events, and the petitioner did not offer a reason why he went back

in the house, except that he wanted to get the keys to the victim’s vehicle. Dr. Woods found

it odd that the petitioner drove across town to get Mitchell to help him carry a television that

was too heavy rather than burglarizing another house with a television that he could carry.

Upon questioning from the court regarding why the petitioner was different from any

other person who makes a bad decision to commit a crime, Dr. Woods responded that

[i]n this particular situation [the petitioner] has specific cognitive deficits that

impair his ability to weigh and deliberate. If someone has an intact brain where

they can weigh and deliberate the neuro[]psychological testing doesn’t really

reflect these kinds of problems then . . . I totally agree with you because

obviously people that commit crimes have bad judgment.

He said that the petitioner had more than bad judgment; he had an “inability to effectively

weigh and deliberate, and if [the petitioner] did not have this neuro[]psychological deficit that

speaks directly to that issue . . . [he] wouldn’t have written that.”

When asked about the significance of the petitioner and the victim firing guns at each

other, Dr. Woods testified that the petitioner’s telling Mitchell that he had to kill the victim

because the victim had seen his face was significant because if the petitioner had not returned

inside the home, the victim would not have seen his face. Dr. Woods also thought it was

“interesting” that a single gunshot to the head killed the victim when there were several other

gunshots fired and evidence of a beating of the victim. Dr. Woods said it was unclear why

the petitioner hit the victim numerous times instead of shooting him again to kill him. He

stated that the petitioner suffered deficits “in being able to weigh and deliberate, being able

to sequence his behavior, [and] being able to size up a situation specifically.”

The petitioner told Dr. Woods that he remembered very little about the burglary and

killing of the victim. The petitioner did not deny being at the scene of the crime, having a

gun, or shooting the gun. The petitioner said that he did not remember much of what

happened because he was scared. Dr. Woods stated that the petitioner’s going back into the

home and shooting the victim, when he could have escaped or shot him from the driveway

showed that the petitioner’s quality of thinking was more consistent with the deficiencies in

his brain functions than just the bad judgment of a criminal. The petitioner’s traumatic stress

affected his ability to remember what happened because “when a person becomes anxious the

first thing [they] lose is . . . registration, ”which is the ability to put memory in the brain. The

petitioner’s problems with his acute memory with registration would be the first to go under

the circumstances of the crime. Dr. Woods testified that the petitioner drinking malt liquor,

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which is fortified alcohol, could also affect his memory because it causes the metabolism to

slow which increases the alcohol level in the body. Alcohol is “a direct toxic” to the brain and

frontal lobes, and it impacts every part of the brain.

Dr. Woods testified that having an ongoing increased alcohol level also impacts one’s

ability to weigh and deliberate. He was familiar with Tennessee’s statutory definition for

premeditation and stated that, in his professional opinion, the petitioner did not kill the victim

“after exercise of reflection in judgement.” When asked whether the petitioner could form

the intent to kill before the act, Dr. Woods stated that the petitioner could not form

premeditation in his opinion. Dr. Woods denied that the petitioner was “sufficiently free from

excitement and passion to be capable of premeditation” and said that there was “no question

that this was an incredibly chaotic stressful situation.” He further testified that “the idea that

[the petitioner] would actually leave . . . the house and come back in and shoot [the victim]

in [his] opinion really mitigates against there being premeditation, and . . . reflects the . . . heat

of passion of the moment.”

When asked by the court whether “in [his] professional opinion [he could] testify to

a reasonable degree of psychological certainty that [the petitioner] was not . . . sufficiently

free from passion or excitement to premeditate” though he was not present, Dr. Woods stated

that he could not specifically say that, but what the petitioner told him and other information

he received led him to that conclusion. Upon further questioning by the court, Dr. Woods said

that although there was “no question in [his] professional opinion that there was both passion

and excitement,” he was “not sure whether [he] can take the next step and then say that [the

petitioner] was incapable of premeditating.” He was certain that the petitioner had both

passion and excitement because the situation was extraordinarily chaotic. He based his

opinion on the facts of the crimes and the psychology of the petitioner.

Dr. Woodsreviewed Tennessee’sstatutory mitigating circumstances and testified that,

in his opinion, the petitioner met the criteria for the mitigating circumstance that “the murder

was committed while the defendant was under the influence of extreme mental or emotional

disturbance.” He said that comparing the petitioner with other criminals was difficult without

knowing how the other criminals’ minds work. He also said that the petitioner’s brain

function is such that his ability to weigh and deliberate is far below most criminals. Dr.

Woods stated that because the petitioner had a known brain impairment and non-functional

frontal lobe, he met the standard for committing the crime under the influence of extreme

mental or emotional disturbance.

Dr. Woods testified that the petitioner also met the criteria for the mitigating

circumstance that

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the capacity of the defendant to appreciate the wrongfulness of the defendant’s

conduct or to conform the defendant’s conduct to the requirements of the law

was substantially impaired as a result of mental disease or defect or intoxication

which was insufficient to establish a defense to the crime of which substantially

affected the defendant’s judgement.

He said that there was “no question” that the petitioner appreciated the wrongfulness of his

conduct, and the petitioner’s “inability to weight and deliberate” was unusually impaired in

this case. According to Dr. Woods, the petitioner’simpairment resulted from a mental disease

and mental defect. The petitioner had difficulty processing information and problems with

his communication quality and abstracting from mistakes. Dr. Woods explained that

abstracting from mistakes means that the petitioner had trouble “pulling out the abstract

quality which means this is wrong, this is something [he] shouldn’t do again, this is a

mistake.” Moreover, the petitioner had problems learning from experience, logically

reasoning, and controlling impulses because his brain does not effectively weigh and

deliberate. Dr. Woods testified that at the time of the crimes, the petitioner had difficulty

understanding the reactions of others, but if the petitioner were to look in retrospect he could

understand what was going on at the time of the crimes.

Dr. Woods testified that although the petitioner’s IQ of seventy-five was not legally

within the range of mental retardation, statistically, under The American Association of

Mental Retardation and the Diagnostic and Statistical Manual, the petitioner’s IQ is within

the range of mental retardation. He further testified that the petitioner’s brain impairments

were “even greater than what a 75 IQ could predict.” He explained that an IQ score measured

how much information one has about the world and is not a function of how well one’s brain

works. IQ testing is not neurological and someone with a high IQ score could still have brain

impairments. He stated that the petitioner’s IQ of 75 only told how much information the

petitioner had about the world, but did not consider the petitioner’s “very discreet neurological

frontal impairments that impair his ability to deal in the world.”

On cross-examination, Dr. Woods admitted that when he interviewed the petitioner,

the petitioner did not reference the victim having a gun when he was discussing the victim’s

vehicle blocking them in the driveway and seeing the victim with the keys. He stated that the

petitioner’s first reference to the victim having a gun was when the petitioner told him that

the victim shot him. Dr. Woods testified that the petitioner could recall the events that

happened on the night of the burglary and could outline them.

Dr. Woods did not perform any additional tests on the petitioner and said that a doctor

could have performed additional tests,such as an MRI. Dr. Woods believed that the petitioner

had post traumatic stress disorder secondary to the Gaston Park shooting. Dr. Woods did not

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make an Axis 1 psychological diagnosis because he saw the petitioner as having a

neurological diagnosis.

The petitioner was the only person whom Dr. Woods interviewed, and Dr. Woods did

not know whether the petitioner was intoxicated during the offenses. He agreed that the

petitioner’s father was away from the home because he worked all the time and that the

petitioner’s father had high standards for how he expected the petitioner and Mr. Gardner to

do their chores. Although the petitioner’s mother had seizures, no one indicated to Dr. Woods

that the petitioner had ever had a seizure.

Dr. Woods agreed that the petitioner’s behavioral problems started when the petitioner

began hanging around really bad people; however, he said that his mother having seizures

may have caused the petitioner’s neurological problems. He stated that he did not know why

the petitioner’s frontal lobe did not develop correctly.

Charles Glover Fisher, a former Tennessee Corrections Institute employee, testified

as an expert regarding the conditions of the Shelby County Jail. The Tennessee Corrections

Institute inspected local jails, set standards for local jails, and trained jail employees. Mr.

Fisher inspected the Shelby County Jail when it opened in 1982, performed the initial training

for the jail, and performed subsequent inspections of it until he retired. He explained that

Tennessee law required that the jail have an annual state inspection which covered the

housing, kitchen, medical, and recreation areas; policies and procedures; and other aspects of

the jail. At the time of this hearing, Mr. Fisher was familiar with the Shelby County Jail

because he served as the court’s expert in a case in 1997 and the court appointed him Special

Master in that case in 2001. Mr. Fisher testified that due to his inspections, he was also

familiar with the conditions of the Shelby County Jail from 1990 through 1992. During his

inspections, Mr. Fisher interviewed jail personnel and inmates. Mr. Fisher visited the jail two

to four times from 1990 to 1992.

In the late 1980s, Mr. Fisher recommended the Tennessee Corrections Institute place

the Shelby County Jail on non-certified status, which meant that it did not meet Tennessee’s

standards. He made this recommendation because “the jail had moved to what they called a

POD Boss System, which meant that an inmate in each of the [PODs] was officially

designated by jail administration as the person who would run that POD.” The person

designated as the POD boss had control over the PODS and directed the activities and

punishment of the inmates. The POD boss would select deputies or lieutenants to help in

controlling the POD. The POD boss used physical force and threats of physical force to

control the POD. There were homemade weapons in the jail, which were on display at one

time. Mr. Fisher recalled that when Memphis began having a gang problem in the early to

mid 90s, the jail switched from POD Boss to gang control.

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Mr. Fisher testified that from 1990 through 1991, the POD boss had control over the

phones at the jail and used the phones to discipline other inmates. During this time, the POD

boss also had control over visitation, the bunks and where the inmates slept. The POD boss

also controlled whether an inmate received food and the quantity of food an inmate received.

Further, authorities allowed the POD boss to select an inmate to be his second in command,

offer protection to the inmate who was second in command, and punish other inmates.

Beyond the POD Boss System, the jail’s cleanliness, air quality, and infestations of

mice and roaches were also issues. Mr. Fisher testified that in 1991 and 1992 the conditions

in the jail were worse than when he recommended that the jail go on a non-certified status.

He said that the jail had become overcrowded, the inmates had no personal space, and the

correction officers lacked control. He further said that the inmates were “running their own

jail, running their own POD.” According to Mr. Fisher, the inmates made their own rules and

punished inmates who did not follow the rules. The jail housed approximately 2,500 inmates

during this time although it was structured for about half that number. Because inmates

overcrowded the jail, triple bunks were in the day room although they constructed the jail for

single bunks in each cell.

Co-counsel represented the petitioner in his death penalty trial along with trial counsel

and was a member of the Shelby County Public Defender’s Office’s Capital Defense Team.

She could not recall when she became involved in the petitioner’s case or if she attended the

first intake meeting, but she said that her attendance at the first intake meeting, which

occurred shortly after the arrest, would have been the normal procedure. Co-counsel was the

second chair in this case and normally the second chair attorney had minimal duties and the

first chair did most of the case work. Co-counsel, trial counsel, the fact investigator, and the

mitigation investigator formed the petitioner’s defense team.

Co-counsel familiarized herself with the February 1989 edition of the ABA Guidelines

for Appointment and Performance of Counsel in Death Penalty Cases. She also believed that

she consulted the Tennessee Association of Criminal Defense Lawyers’ Toolsforthe Ultimate

Trial, Tennessee Death Penalty Defense Manual. She did not remember either her or trial

counsel seeking help or guidance from the Southern Center of Human Rights, Legal Defense

Fund or similar organizations.

Co-counsel reviewed the mitigation evaluation done by the mitigation specialist and

stated that it was the standard operating procedure for her office during the petitioner’s case.

The evaluation covered the client’s background and historical information including family,

employment, illnesses, childhood injuries, and any other information that would tell the

defense team about the client and assist in the defense. Co-counsel stated that normally the

54
entire team is present during the mitigation interview although at times she may have had to

finish information by herself.

Co-counsel reviewed the symptom checklist contained in the mitigation report and

stated that the symptoms of dizziness, fainting spells, dropping objects, and the petitioner

hesitating when he answered that he had no suicide attempts suggested possible mental illness

or mental health problems. Co-counsel did not recall discussing obtaining a mental health

expert with trial counsel or whether the defense called any mental health experts during the

petitioner’s trial. According to co-counsel, trial counsel made the decision whether to obtain

a mental health expert.

In the public defender’s office, directives of either the first or second chair dictated

investigations. Co-counsel did not recall directing any investigation in this case, but stated

that trial counsel may have included her thoughts in one of his directives. Co-counsel’s name

was not on any of the pretrial motions contained in the technical record from the original trial,

and she said that trial counsel “did most, perhaps about ninety-eight to ninety-nine percent of

the work filing the motions on this case.” She further said that if trial counsel wrote letters

in first person to the client, it would indicate that she did not assist trial counsel in writing

those letters. Co-counsel testified that if she had consulted with trial counsel in writing the

letter, then she “would not have necessarily signed off on it.” Also, if the state responded to

a motion, it did not give her a carbon copy of the response, but trial counsel gave her one.

Co-counsel could not personally recall anything about the petitioner’s family. She also

could not recall whether she contacted any of the petitioner’s family members or dealt with

them during the trial, but stated that the normal procedure was for trial counsel to be the

primary contact person, and she was secondary. Co-counsel said that she had very little to do

with the case and could not remember anything regarding when the petitioner was shot in

1990.

Co-counsel said that sometimes as second chair she conducted independent

investigations herself, but in this case, trial counsel “basically handled the case himself.” She

explained that if trial counsel was comfortable with preparing the case himself, then she

would have had little to do with the case, and her attention would be on other cases where she

was the first chair. She did not remember how many other cases she was handling during the

petitioner’s trial, but was sure that it was a lot, especially if she had a limited role. She did

not recall consulting with or seeking out any experts in the petitioner’s case.

Co-counsel recalled Rule 12 of the Rules of the Supreme Court of the State of

Tennessee, which requires the trial judge to complete a “Report in First-Degree Murder

Cases” to assist the supreme court in a proportionality review. She could not remember

55
whether she participated in the completion of or received a copy of the Rule 12 report in the

petitioner’s case. Co-counsel reviewed the report, which was in the technical record, and

observed where the trial judge marked “no” by all of the mitigating circumstances, except the

section designated as “Other”. Co-counsel could not recall whether she did any of the arguing

at sentencing and did not know why the defense did not ask the court to charge that the

murder was committed while the petitioner was under the influence of extreme mental or

emotional disturbance as a mitigating circumstance. She likewise did not know whether the

defense team considered charging that the petitioner’s capacity “to appreciate the

wrongfulness of his conduct or to conform his conduct to the requirements of the law was

substantially impaired as a result of mental disease or defect or intoxication which was

insufficient to establish a defense to the crime but which substantially affected the

[petitioner’s] judgement’” as a mitigating circumstance.

Co-counsel testified that the petitioner’s mother having seizures and the petitioner

having birth problems were things that she would have considered in deciding whether they

would be part of mitigation. She would also have considered the petitioner’s early

developmental delays and possibly the petitioner’s father being absent from the home during

the first five years of the petitioner’s life as mitigation. She further stated that the petitioner’s

home life, any unfavorable comparisons between the petitioner and his brother, and the

petitioner being picked on when he was younger due to his size were possible mitigating

factors. She did not recall whether the defense had the petitioner’s IQ tested before trial and

said that she would have possibly considered the petitioner’s IQ score of seventy-five as

mitigation. Co-counsel said that she would have possibly considered the petitioner’s family

history of drug and alcohol use, the petitioner’s use of alcohol and some drugs, suffering from

post-traumatic stress disorder, traumatic experiences in the Shelby County Jail, and tendency

to behave impulsively due to his low intelligence as mitigation.

On cross-examination, co-counsel testified that trial counsel was “primarily

overwhelmingly” responsible for the decisions regarding the petitioner’s defense; however,

if trial counsel needed assistance, he would have asked her. She stated that had trial counsel

felt that he needed a psychological examination of the petitioner, he would have discussed it

with her or handled it himself.

The Assistant District Attorney General who prosecuted the petitioner’s case testified

for the state. He stated that he was the Division Leader in Shelby County Criminal Court

Division VII, and he prosecuted the petitioner’s case along with co-counsel. Mitchell was a

witness as part of the state’s proof in the petitioner’s case. Before Mitchell testified, the

prosecutor spoke with him regarding the circumstances of the case. Counsel represented

Mitchell, and Mitchell’s counsel informed the prosecutor that Mitchell did not wish to go to

trial. Mitchell wanted to plead guilty and testify against the petitioner.

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After Mitchell said he wanted to help the state with its case against the petitioner, the

prosecutors, along with Mitchell’s attorney, talked with the petitioner about Mitchell’s

knowledge of the case and presented Mitchell’s potential testimony. The prosecutor never

met with Mitchell without his attorney being present. The prosecutors in the petitioner’s case

never made an agreement with Mitchell or his attorney regarding the disposition of Mitchell’s

case. According to the prosecutor, they advised Mitchell and his counsel that they would

make a recommendation regarding the disposition of Mitchell’s case after he testified and

after they consulted the victim’s family members. After the petitioner’s trial, the prosecutors

met with the victim’s family and came up with a recommendation with their consent. The

prosecutors tendered an offer for Mitchell to plead guilty to especially aggravated robbery,

among other charges, and receive a sentence of “thirty years on the case as an out of his range

sentence,” and Mitchell accepted the offer.

The prosecutor denied that he ever advised Mitchell to lie and stated that he advised

Mitchell and his counsel that if Mitchell took that offer and said “something that in [the

prosecutor’s] estimation [was] not the truth that [they would] indict him for perjury.” The

prosecutor testified that, based on his conversations with Mitchell, Mitchell’s statements to

police, the police investigation, and the proof and facts as he knew them to be, he believed

that Mitchell testified truthfully. The prosecutor stated that he told the victim’s family that

the prosecution believed that Mitchell testified truthfully and honestly, and the prosecution

should not try him.

On cross-examination, the prosecutor testified that the prosecution could not seek the

death penalty against Mitchell because he was a juvenile; however, the court could have

sentenced him to life without parole. The prosecutor said that he could speak for himself and

his co-counsel regarding there being no deals between the prosecution and Mitchell before

trial because they both were present whenever they spoke with Mitchell and his counsel. He

further explained that he was not privy to any telephone conversation between his co-counsel

and Mitchell’s counsel. However, in discussions with his co-counsel and Mitchell’s counsel,

there were no agreements made by the prosecution regarding the disposition of Mitchell’s

case. The prosecutor was unaware of any conversations between police officers and Mitchell

about possible deals and did not believe such conversations took place.

The prosecutor denied that Mitchell’s testimony was necessary to get a death sentence

against the petitioner and stated that the prosecution “could have convicted [the petitioner]

without Mitchell’s testimony, and . . . the jury could have and [he believed] would have

returned a death verdict against [the petitioner] without Mitchell’stestimony.” The prosecutor

did not recall an interoffice memo in which he and his co-counsel wrote, “‘We could not have

gotten a death sentence against [the petitioner] without Mitchell’s truthful cooperation[.]’”

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The prosecutor reviewed the memo, and he admitted that it reflected that they needed

Mitchell’s testimony to secure a death sentence against the petitioner.

Findings Of Post Conviction Court

On October 1, 2008, the post-conviction court entered an order denying relief. The

post-conviction court found that the petitioner did not offer any proof to support the following

issues, which were contained in the original petition for post-conviction relief: (1) the

conviction was based on an “illegal confession” contained in the letter from the petitioner to

Mitchell, which the state “illegally” introduced at trial and a violation of the petitioner’s

privilege against self-incrimination; and (2) the conviction was based on the state’s failure to

disclose exculpatory evidence to the petitioner.

Moreover, the post-conviction court found that the petitioner’s arguments in the

amended petition that counsel failed to: (1) establish a proper working relationship with the

petitioner; (2) adequately prepare the petitioner’s case; (3) be aware of the law applicable to

the petitioner’s case; (4) maintain an acceptable workload; (5) object to prejudicial,

misleading, and/or false and inappropriate evidence at trial and did not adequately crossexamine the state’s witnesses, particularly Mitchell; (6) complete the investigation necessary

to represent the petitioner; (7) develop and pursue a comprehensive mitigation theory for the

sentencing phase; (8) timely subpoena witnesses; (9) engage in the motion and jury instruction

practices that were necessary to protect the petitioner’s rights; (10) request necessary expert

assistance; (11) file adequate pretrial discovery motions; (12) file adequate pretrial motions

to preserve law enforcement’s notes and a copy of the district attorney’s file; (13) file

adequate pretrial motions for assistance with the investigation, jury selection, forensic expert

witnesses, forensic evidence testing, and mental health experts; (14) file adequate pretrial

motions challenging the grand and petit jury selection process; (15) request a jury

questionnaire; (16) file a motion to include jury information in the record; (17) file a proposed

special verdict form; (18) present and adequately argue the motion to suppress the petitioner’s

statement to the police; (19) file pretrial motions seeking to limit the state’s proof at the

sentencing hearing to specific aggravating circumstances; (20) seek jury instruction that

doubts regarding the appropriate sentence are to be resolved in favor of a life sentence; (21)

file pretrial motions seeking the right to allocution; (22) cite United States and Tennessee

Constitutions in their motion practice; (23) effectively voir dire jurors; (24) investigate

evidence of the petitioner’s diminished capacity; (25) investigate and present compelling

mitigation in the petitioner’s life history; (26) investigate the petitioner’s prior offenses that

were used as aggravating circumstances; (27) investigate the legitimacy of the petitioner’s

guilty pleas that were used to impeach his credibility at trial; (28) object to various jury

instructions; (29)seek a limiting instruction regarding the state’s introduction of evidence that

was unrelated to any statutory aggravating circumstances; (30) make an offer of proof of the

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petitioner’s mother’s testimony; (31) object to the state’s closing argument that if the jury did

not give the petitioner a death sentence he would kill someone close to the jurors; (32) object

to the state’s closing argument that the jury should focus on what is best for the community;

(33) object to the state’s closing argument that the jury should determine whether mitigating

circumstances had been proven; (34) object to the state’s closing argument that the last

aggravating circumstance wasthat the petitioner knowingly committed the murder; (35) object

to the state’s closing argument that the jury could find the felony murder as an aggravating

circumstance if it found that the murder occurred during a burglary or theft; (36) object to the

state’s closing argument that because the petitioner had no mercy on the victim, the jury

should not have mercy on the petitioner; (37) object to the state’s closing argument that the

jury could not let sympathy play any part in its deliberations; (38) file an adequate motion for

judgment of acquittal; (39) conduct post-trial juror interviews; (40) timely file the defense

portion of the Rule 12 report; and (41) file a pretrial motion asserting the petitioner’s rights

under international law were either unsupported by proof or without merit. The postconviction court also found that the petitioner’s Apprendi-Ring, proportionality review,

constitutional, and international law claims were without merit. Likewise, the court found that

the petitioner’s allegations regarding the disclosure of an agreement that Mitchell would

receive a lesser sentence in exchange for his testimony, exclusion of the petitioner’s

testimony, counsel’s failure to adequately raise various allegations previously discussed,

sufficiency of evidence at trial, and flaws in the jury selection process were without merit.

Finding that every allegation in the petition was without merit and that “the petitioner received

a fair trial and sentencing hearing with an excellent team of experienced attorneys and

investigators, properly prepared,” the post-conviction court denied the petitioner’srequest for

post-conviction relief.

ANALYSIS

I. Post-Conviction Standard of Review

Relief under the Post-Conviction Procedure Act of 1995, which governs the petition

filed in this case, is only warranted when a petitioner establishes that his or her “conviction

or sentence is void or voidable because of the abridgment of any right guaranteed by the

Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-

30-103. In a post-conviction proceeding, the petitioner has the burden of proving allegations

of fact by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). “Evidence is

clear and convincing when there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.

App. 1998).

Once the post-conviction court has ruled upon a petition, its findings of fact are

conclusive on appeal unless the evidence in the record preponderates against them. Wallace

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v. State, 121 S.W.3d 652, 656 (Tenn. 2003); Nichols v. State, 90 S.W.3d 576, 586 (Tenn.

2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). This court may not re-weigh

or re-evaluate the evidence or substitute its inferences for those drawn by the post-conviction

court. Nichols, 90 S.W.3d at 586. Questions concerning the credibility of witnesses and the

weight to be given their testimony are for resolution by the post-conviction court. Id. (citing

Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997)). Notwithstanding, determinations of

whether counsel provided a defendant constitutionally deficient assistance present mixed

questions of law and fact. Wallace, 121 S.W.3d at 656; Nichols, 90 S.W.3d at 586. As such,

our review is de novo, and we accord the conclusions reached below no presumption of

correctness. Id.

II. Ineffective Assistance of Counsel

A. Standard of Review

The Sixth Amendment provides, in pertinent part, that, “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel for his [defense].”

U.S. Const. amend. VI. This right to counsel is ‘“so fundamental and essential to a fair trial,

and so, to due process of law, that it is made obligatory upon the states by the Fourteenth

Amendment.”’ Gideon v. Wainwright, 372 U.S. 335, 340 (1963) (quoting Betts v. Brady, 316

U.S. 455, 465 (1942)). Inherent in the right to counsel is the right to effective assistance of

counsel. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980); McMann v. Richardson, 397 U.S. 759,

771 n. 14 (1970); see also Strickland v. Washington, 466 U.S. 668, 686 (1984).

“The benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result.” Strickland, 466 U.S. at 686; Combs v. Coyle,

205 F.3d 269, 277 (6th Cir. 2000). A two-prong test directs the court’s evaluation of a claim

of ineffectiveness:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687; see also Combs, 205 F.3d at 277.

The performance prong of the Strickland test requires a petitioner raising a claim of

ineffectiveness to show that the counsel’s representation fell below an objective standard of

60
reasonableness, or “outside the wide range of professionally competent assistance.”

Strickland, 466 U.S. at 690; see also Kimmelman v. Morrison, 477 U.S. 365, 386 (1986).

“Judicial scrutiny of performance is highly deferential, and ‘[a] fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time.’” Combs, 205 F.3d at 278 (quoting Strickland, 466

U.S. at 689). Upon reviewing claims of ineffective assistance of counsel, the court “must

indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland,

466 U.S. at 689. Additionally, courts should defer to trial strategy or tactical choices if they

are informed ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.

1982). Finally, we note that criminal defendants are not entitled to perfect representation,

only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.

Crim. App. 1996). In other words, “in considering claims of ineffective assistance of counsel,

‘[w]e address not what is prudent or appropriate, but only what is constitutionally

compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,

466 U.S. 648, 665, n.38 (1984)). Notwithstanding, we recognize that “our duty to search for

constitutional [deficiencies] with painstaking care is never more exacting than it is in a capital

case.” Id. at 785.

If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner mustsatisfy the prejudice prong of the Strickland test by demonstrating that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. In

evaluating whether a petitioner satisfies the prejudice prong, a court must ask “whether

counsel’s deficient performance renders the result of the trial unreliable or the proceeding

fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citing Strickland, 466

U.S. at 687). In other words, a petitioner must establish that the deficiency of counsel was of

such a degree that it deprived the defendant of a fair trial and called into question the

reliability of the outcome. Nichols, 90 S.W.3d at 587. That is, the evidence stemming from

the failure to prepare a sound defense or to present witnesses must be significant, but it does

not necessarily follow that the trial would have otherwise resulted in an acquittal. Nealy v.

Cabana, 764 F.2d 1173, 1178-1179 (5th Cir. 1985); Code v. Montgomery, 799 F.2d 1481,

1483 (11th Cir. 1986). “A reasonable probability of being found guilty of a lesser charge, or

a shorter sentence,satisfiesthe second prong in Strickland.” State v. Zimmerman, 823 S.W.2d

220, 225 (Tenn. Crim. App. 1991); see also Chambers v. Armontrout, 907 F.2d 825, 832 (8th

Cir. 1990). Moreover, when challenging a death sentence, the petitioner must show that

“there is a reasonable probability that, absent the errors, the sentencer . . . would have

61
concluded that the balance of the aggravating and mitigating circumstances did not warrant

death.” Henley, 960 S.W.2d at 579-580 (citing Strickland, 466 U.S. at 695).

The petitioner argues on appeal that the post-conviction court erred in denying his postconviction claims that defense counsel provided ineffective assistance. Specifically, the

petitioner argues that his attorneys breached objective standards of reasonableness for capital

representation, thereby causing prejudice to the outcome of his case, by: (1) failing to secure

the services of any psychological experts to examine the petitioner and perform the

neurological testing necessary to uncover substantial evidence that could have been used both

during the guilt phase to negate the specific intent required for first degree premeditated

murder and during the penalty phase as mitigation; (2) failing to object to improper closing

arguments by the prosecutor during the penalty phase; (3) eliciting testimony from mitigation

witnesses during the penalty phase that opened the door to the state’s introduction of the

petitioner’s prior convictions for theft and burglary; (4) failing to object to that portion of the

prosecutor’s penalty phase closing argument in which he encouraged the jury to consider the

theft and burglary convictions in deciding whether to sentence the petitioner to death; (5)

failing to request a limiting instruction as to how the theft and burglary convictions should

have been considered by the jury; (6) failing to make an offer of proof in order to preserve for

appellate review the trial court’s error in excluding “lack of remorse” testimony from the

petitioner’s mother during the penalty phase; (7) failing to object to the prosecutor’s argument

that the petitioner deserved a death sentence because he had shown no remorse; (8) failing to

investigate and present evidence to rebut the medical examiner’s testimony used to support

the heinous, atrocious, or cruel aggravating circumstance; (9) failing to investigate and present

as mitigation during the penalty phase evidence related to the petitioner’s prior incarceration

in the Shelby County penal system; (10) failing to investigate and present all available

mitigation witnesses; (11) failing to properly prepare those individuals who did testify as

mitigation witnesses; (12) failing to challenge the jury instruction given on the heinous,

atrocious, or cruel aggravating circumstance; and (13) failing to raise or adequately raise

certain issues on appeal from the petitioner’s convictions and resulting sentences. An analysis

of each of these arguments demonstrates no basis for reversal of the post-conviction court’s

4

denial of relief.

1. Failure to secure the services of any psychological experts and perform neurological

testing

The petitioner argues that despite numerous red flags that should have prompted a

 Our analysis of some issues may be repetitive because we have addressed each of the

4

petitioner’s issues, although some were duplicated, to ensure a complete and thorough review of this

capital case.

62
neuropsychological evaluation, trial counsel failed to secure a psychological expert to

examine the petitioner and perform the necessary neurological testing or a mental health

evaluation to uncover substantial evidence that could have been used during the guilt phase

to negate the specific intent required for first degree premeditated murder and during the

penalty phase as mitigation. The petitioner asserts that the mitigation investigator’s report,

which indicated that the petitioner had suffered from dizziness, fainting spells, and dropping

objects,should have alerted the defense team of the need for a neuropsychological evaluation.

He also asserts that his history of head trauma, complications at birth, and his mother’s history

of seizures were also red flags which should have triggered a neuropsychological evaluation.

The petitioner likewise points to his early adolescent drug and alcohol abuse, academic

failures, repetition of grades, and his persistent failure to understand and process information,

engage in logical reasoning, and communicate effectively with his attorney as red flags which

should have prompted trial counsel to request a neuropsychological evaluation. He contends

that counsel’s failure to obtain such experts to examine the petitioner was “in contravention

of the well-defined norms of capital defense practice.” The petitioner alleges, based on the

testimony of Dr. Auble and Dr. Woods, that due to counsel’s failure to request mental health

experts and a neuropsychological examination, he suffered the prejudice of the jury neither

hearing that he had brain damage which hindered his executive decision-making functioning

nor how his mental impairments caused him to act impulsively in high stress situations.

Furthermore, he argues that the failure to obtain a mental health expert or neuropsychological

examination prejudiced him by not having the following mitigating circumstances presented

to the jury:

(2) [t]he murder was committed while the defendant was under the influence

of extreme mental or emotional disturbance; [and]

. . . .

(8) [t]he capacity of the defendant to appreciate the wrongfulness of the

defendant’s conduct or to conform the defendant’s conduct to the requirements

of the law was substantially impaired as a result of mental disease or defect or

intoxication, which was insufficient to establish a defense to the crime but

which substantially affected the defendant’s judgment[.]

Tenn. Code Ann. § 39-13-204(j)(2), (8).

Counsel does not have a constitutional duty to offer mitigation evidence at the penalty

phase of a capital trial; however, the basic concerns of trial counsel during a capital

sentencing proceeding are to neutralize the aggravating circumstances advanced by the state

and to present mitigating evidence on behalf of the defendant. Although there is no

63
requirement to present mitigating evidence, counsel does have the duty to investigate and

prepare for both the guilt and the penalty phase. See Goad v. State, 938 S.W.2d 363, 369-70

(Tenn. 1996).

Trial counsel does not have an absolute duty to investigate particular facts or a certain

line of defense; however, trial counsel does have a duty to make a reasonable investigation

or to make a reasonable decision that makes a particular investigation unnecessary.

Strickland, 466 U.S. at 691. In determining whether counsel breached this duty, this court

reviews counsel’s performance for reasonableness under prevailing professional norms, which

includes a context-dependent consideration of the challenged conduct as seen from counsel’s

prospective at the time. Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citations omitted).

There is no requirement that counsel investigate every conceivable line of mitigating evidence

regardless of how unlikely the effort would be to assist the defendant at sentencing. Id. at

533. Likewise, counsel is not required to interview every conceivable witness. Hendricks v.

Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). Counsel’s duty to investigate and prepare is

not limitless. See Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981). We will not find

counsel’s performance deficient for failing to unveil all mitigating evidence, if, after a

reasonable investigation, nothing has put counsel on notice of the existence of that evidence.

See Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998) (citation omitted). To

summarize,

no particular set of detailed rules can satisfactorily take account of the variety

of circumstances faced by defense counsel. Rather, courts must judge the

reasonableness of counsel’s conduct on the facts of the particular case, viewed

as of the time of counsel’s conduct, and judicial scrutiny of counsel’s

performance must be highly deferential.

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (internal citations and quotations omitted).

A reviewing court must consider several factors when determining whether trial

counsel was ineffective for failing to present mitigating evidence:

1. The nature and extent of the mitigating evidence that was available but not presented

by trial counsel. Goad, 938 S.W.2d at 371 (citing Deutscher v. Whitley, 946 F.2d 1443

(9th Cir. 1991); Stephens v. Kemp, 846 F.2d 642 (11th Cir. 1988); Cooper v. State, 847

S.W.2d 521, 532 (Tenn. Crim. App. 1992); Adkins v. State, 911 S.W.2d 334 (Tenn.

Crim. App. 1994)).

2. Whether trial counsel presented substantially similar mitigating evidence to the jury

in either the guilt or penalty phase of the proceedings. Id. (citing Atkins v. Singletary,

965 F.2d 952 (11th Cir. 1992); Clozza v. Murray, 913 F.2d 1092 (4th Cir. 1990); State

64
v. Melson, 772 S.W.2d 417, 421 (Tenn. 1989)).

3. Whether the evidence of applicable aggravating factor(s) was so strong that the

mitigating evidence would not have affected the jury’s determination. Id. (citing

Fitzgerald v. Thompson, 943 F.2d 463, 470 (4th Cir. 1991); Elledge v. Dugger, 823

F.2d 1439 (11th Cir. 1987)).

The petitioner’s arguments regarding trial counsel’s failure to request a

neuropsychological evaluation to secure evidence for the guilt phase are intertwined with his

complaints that counsel failed to present sufficient mitigating evidence, and they cannot be

entirely separated. We will, therefore, addressthe issuesregarding the petitioner’s allegations

of deficient investigation into a neuropsychological evaluation together.

During the guilt phase, the defense team attempted to establish reasonable doubt in the

juror’s minds and show that the homicide was not closely related to the underlying felony so

as to undercut the state’s felony murder case. The defense felt that the homicide was “more

felony murder than it was premeditated first degree murder.” During the penalty phase of the

petitioner’s trial, the petitioner presented the testimony of his mother, father, brother, and

aunts. The petitioner’s family testified that the petitioner was a good child who had a close

relationship with his family and never got into trouble until his teens. The defense strategy

during this phase was to generate sympathy for the petitioner and show that he was not a bad

person and had a family who cared about him. The defense team did not present any evidence

concerning the petitioner’s brain impairments or mental deficiencies at either phase of the

trial.

Regarding trial counsel’sfailure to uncoversubstantial evidence that the defense could

have used to negate the specific intent required for first degree premeditated murder, the postconviction court found that the testimony of Dr. Auble and Dr. Woods was “mere supposition

and conjecture, and [was] hardly compelling.” The court further found that after speaking

with the petitioner and his family and reviewing the petitioner’s school records, the defense

team did not find a particularized need for funds to hire such experts. In addition, the postconviction court found that the court would not have allowed Dr. Woods’s testimony that the

petitioner had a “diminished capacity” to premeditate a murder during the guilt phase of the

trial because diminished capacity is not a defense which Tennessee courts recognize.

Likewise, in its order denying relief, the post-conviction court found that the mitigation

evidence offered by Dr. Auble and Dr. Woods was “highly speculative and circular in its

reasoning[,] would not be received well by a jury[,] and would be readily susceptible to

ridicule by the State in its closing arguments.” The post-conviction court further stated that

the defense team “put on as compelling a case for mitigation as it could, given the hard facts,

and put on all the evidence they felt would not open the door to proof by the state that would

compromise their theory of mitigation.” The court found that the petitioner had never been

65
diagnosed with a mental illness, there was no hard evidence to support the petitioner’s

diagnosis of frontal lobe damage, the petitioner did not have trouble in school until he began

drinking excessively and committing crimes, and the petitioner did not have a traumatic or

deprived childhood.

To prevail on a claim of trial counsel’s ineffectiveness, both substandard performance

and prejudice caused by the performance must be shown. Strickland, 466 U.S. at 668. To

meet the Strickland test, a defendant has the burden of proving that counsel’s representation

was unreasonable under prevailing professional norms and that the complained about conduct

was not the result of a strategic decision. Id. at 688-689. A defendant must demonstrate “a

reasonable probability that, but for counsel’s errors, the result of the proceeding would have

been different.” Id. at 694.

The petitioner argues that several red flags should have compelled trial counsel to

request a neuropsychological evaluation to secure evidence. Trial counsel testified that

neither the petitioner, his family, nor anyone else ever indicated that the petitioner had any

type of emotional or psychological problems or mental illness, disease, or defect. In fact, trial

counsel testified that the petitioner’s parents emphatically asserted to trial counsel that the

petitioner “was not crazy.” Counsel stated that, in his practice, he routinely encountered

individuals with mental problems that necessitated follow-up investigation, and if anything

in the petitioner’s case had suggested the need for further evaluation, he would have followed

up and done further investigation. We disagree that the red flags listed by the petitioner

necessarily triggered the need for a neuropsychological evaluation and do not find that trial

counsel was deficient for not requesting one.

Even if we were to conclude that trial counsel was deficient in failing to order a

neuropsychological evaluation, the petitioner has failed to show that he was prejudiced.

Regarding prejudice, the question before us is whether it is reasonably probable that the

outcome would have been different had counsel presented the mitigating evidence presented

at the evidentiary hearing at trial. We conclude that it would not have been different. The

mitigating evidence obtained from the neuropsychological evaluation was merely speculative,

as the post-conviction court found. It did not show that the petitioner committed the murder

under the influence of extreme mental or emotional disturbance or that the petitioner’s

capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the

requirements of the law was substantially impaired as a result of mental disease or defect,

which was insufficient to establish a defense to the crime but which substantially affected the

petitioner’s judgment. The petitioner has not met the standard of proving ineffective

assistance of counsel and is not entitled to relief on this issue.

2. Failure to object to improper closing arguments by the prosecutor during the penalty

66
phase

The petitioner contends that defense counsel was deficient for failing to object to

certain portions of the prosecutor’s closing arguments. The petitioner alleges that the

prosecution arguments “encouraging the jury to consider the needs of the community, future

dangerousness of the [petitioner],specific deterrence, desire for vengeance, and impact on the

victim” were improper and defense counsel failed to object to them. The petitioner also

claims that defense counsel likewise failed to object to the prosecutor’s improper arguments

which constructed a burden of proof for mitigating factors and invoked the Christian tenet to

diminish the jury’s responsibility. He argues that defense counsel’s failure to object was

deficient, and this deficiency prejudiced him because the prosecutor’s arguments “affected

at least one juror’s sentencing determination.”

This court has considered whether trial counsel’s failure to object during a closing

argument is generally sufficient for a showing of ineffective assistance of counsel. See

Gregory Paul Lance v. State, No. M2005-01765-CCA-R3-PC, 2006 WL 2380619, at *6

(Tenn. Crim. App., Nashville, Aug. 16, 2006), perm. to appeal denied (Tenn. Dec. 18, 2006).

In Lance, this court held that:

[b]ecause the reviewing court must indulge a strong presumption that the

conduct falls within the range of reasonable professional assistance and may not

second-guess the tactical and strategic choices made by counsel unless those

choices were uninformed because of inadequate preparation, it is highly

unlikely that [the petitioner will succeed] in meeting either the deficiency or the

prejudice prong of the ineffective assistance of counsel claim based on trial

counsel’s failure to object to the improper closing argument.

Id. at *6 (citations omitted); see Strickland, 466 U.S. at 690; Hellard, 629 S.W.2d at 9. We

approach the present case under the same legal framework. The decisions of a trial attorney

as to whether to object to opposing counsel’s arguments are often primarily tactical decisions.

As noted by the Lance court, attorneys may often choose not to object to damaging evidence

for strategic reasons, such as “to avoid emphasizing [the unfavorable evidence] to the jury.”

Lance, 2006 WL 2380619, at *6.

When a prosecutor has engaged in improper conduct, the test for determining whether

there is reversible error is “whether the impropriety ‘affected the verdict to the prejudice of

the defendant.’” State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994) (quoting Harrington v.

State, 385 S.W.2d 758, 759 (1965)). In making this determination, the court considers: (1)

the conduct complained of viewed in the light of the facts and circumstances of the case; (2)

the curative measures undertaken by the court and the prosecution; (3) the intent of the

67
prosecutor in making the improper arguments; (4) the cumulative effect of the improper

conduct and any other errors in the record; and (5) the relative strength and weakness of the

case. Id. (citing State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984); Judge v. State, 539

S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

The petitioner first claims that defense counsel failed to object when the prosecution,

in its closing argument, stated, “I’m going to ask you to shift the focus now and focus on what

is best for the people of Shelby County, Tennessee. What is best for the people in our

community, where we live, where we work, what is best for us.” The post-conviction court

found that this argument did “improperly suggest that the jury should focus on community

needs rather than on aggravating and mitigating factors and the individualized sentencing of

the [petitioner]”; however, the court did not find that this improper argument “caused

prejudice to the [petitioner] which affected the verdict in this case.” The post-conviction

court found that the conduct complained of was innocuous in light of the facts and

circumstances of the case, the court did not undertake curative measures because trial counsel

did not object, the intent of the prosecutor was to shift the jury’s focus from the presumption

of a verdict in favor of the petitioner, there was no significant cumulative effect from the

improper conduct, and the state had a significantly strong case. Additionally, the postconviction court noted that the prosecutor never returned to this argument or suggested that

sentencing the petitioner to death was best for the community. We agree with the postconviction courts findings and conclude that the petitioner has not shown that counsel’s

failure to object to this argument prejudiced him.

The petitioner also argues that the prosecutor’s argument which urged the jury to look

beyond the mitigating factors and aggravating circumstances and consider what the

community would be like if the petitioner were still a member was improper. The petitioner

complains that the prosecutor improperly characterized the petitioner as one who terrorized

the community and referred to him as “a great big King Kong.” He further complains that the

prosecutor argued that a death sentence was the only way to deter the petitioner “from taking

away another valued member of the community.” The post-conviction court found that the

Tennessee Supreme Court had already decided the issue against the petitioner. See Sims, 45

S.W.3d at 15-16 (holding that the comment was an attempt to improperly sway the jury, but

it was brief and isolated, and the petitioner was not prejudiced). The supreme court agreed

with this court’s decision on direct appeal that “these limited comments by the prosecutor did

not affect the jury’s sentencing decision in light of the facts and circumstances of this case.”

Id. at 16. Moreover, the post-conviction court further found that because trial counsel turned

this argument against the state, it would not have affected the jury’s verdict. We agree with

the post-conviction court’s findings and conclude that the petitioner was not prejudiced and

therefore, is not entitled to relief on this issue.

68
Next, the petitioner argues that the prosecutor made improper attempts to “sway the

jury into considering irrelevant, non-statutory aggravating circumstances by encouraging the

jury to make a retaliatory sentencing decision.” The petitioner contends that the prosecutor’s

statements, which reminded the jury that the petitioner did not show any mercy toward the

victim and encouraged the jury to give the petitioner the same consideration which the

petitioner had given the victim, were attempts “to persuade the jury to make a retaliatory

sentencing decision rather than a reasoned moral response to the evidence.” The petitioner

claims that his case is analogous to Bigbee, 885 S.W.2d at 812, in which the state supreme

court held that “the prosecutor strayed beyond the bounds of acceptable argument by making

a thinly veiled appeal to vengeance, reminding the jury that there had been no one there to

ask for mercy for the victims.” The post-conviction court distinguished the petitioner’s case

from Bigbee and found that it was more analogous to State v. Stephenson, 195 S.W.3d 574,

602 (Tenn. 2006) (holding that the prosecutor’s arguments which “urged the jury not to be

swayed by sympathy or emotion in response to the pleas of the defendant’s family for a

sentence other than death” were not improper).

We agree with the post-conviction court’s findings that this case is more analogous

to Stephenson. In Bigbee, the prosecutors’s remarks urged the jury to punish the defendant

for killings in another county for which he had already been punished. In this case, as well

as in Stephenson, the prosecutor’s arguments urged the jury not to let sympathy or prejudice

affect its decision. We conclude that these comments were not improper, and the petitioner

suffered no prejudice and is therefore not entitled to relief on this issue.

The petitioner further argues that trial counsel’s failure to object to the prosecutor’s

improper arguments constructing a burden of proof for mitigating factors constituted

deficient performance. The petitioner claimsthat the prosecutor’s argument that the jury was

to consider whether the defense had proven mitigating factors wasimproper because “the law

does not impose a burden of proof regrading mitigating factors,” and the jury was to consider

any mitigating factors “merely ‘raised by the evidence.’” Regarding the prosecution stating

that the jury had “to determine whether the mitigating circumstances [had] been proven,” the

post-conviction court found that because the trial judge instructed the jurors that they “shall

consider. . . any mitigating circumstances raised by the evidence . . . [and] [t]he [petitioner]

does not have the burden of proving a mitigating circumstance,” the prosecutor’s change in

wording was a harmless error which created no prejudice to the petitioner. The evidence

does not preponderate against the post-conviction court’sfinding that the error was harmless.

Although the prosecutor should have stated that the jury must determine whether the

mitigating circumstances had been raised by the evidence rather than proven, the trial judge’s

instructions to the jury fairly informed the jury of the legal issues and applicable law

regarding mitigating circumstances. These instructions clarified the prosecution’s error in

using the term “proven” instead of “raised.” Accordingly, we conclude that any error was

69
harmless and did not affect the verdict to the prejudice of the petitioner. Thus, the petitioner

is not entitled to relief on this issue.

Finally, the petitioner argues that counsel was ineffective for failing to object to the

prosecution’s invocation of the Christian tenet during closing arguments which diminished

the jury’s responsibility. The petitioner further claims that the prosecutor’s arguments that

the ability to forgive the petitioner laid only with the victim, suggested that the victim, and

not the jury, had the responsibility of deciding whether the petitioner should be sentenced to

life in prison. The petitioner states that this argument gave the impression that “if the jury

believed that [the petitioner] had sinned against the victim, then their only choice was to

sentence him to death” because the victim was “the only person who could possibly decide

whether [the petitioner] should instead spend the rest of his life in prison.” We note that the

petitioner raises the issue of the prosecution invoking the Christian tenet for the first time on

appeal. Generally, an appellate court will not allow a party to raise an issue for the first time

on appeal because such action denies the adversary opportunity to rebut the issue with

evidence and argument. See Walsh v. State, 166 S.W.3d 641, 645 (Tenn. 2005) (“Issues not

addressed in the post-conviction court will generally not be addressed on appeal.”); State v.

Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App. 1994) (“[A] party will not be permitted

to assert an issue for the first time in the appellate court.”); see also Tenn. Code Ann. § 40-

30-110(f) (“There is a rebuttable presumption that a ground for relief not raised before a

court of competent jurisdiction in which the ground could have been presented is waived.”).

Furthermore, a petitioner may not change theories between the lower court and the appellate

court. State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001). The petitioner failed

to present these claims before the post-conviction court, which is a court of competent

jurisdiction. Accordingly, the petitioner has waived this issue.

3. Elicitation of testimony from mitigation witnesses during the penalty phase that

opened the door to the state’s introduction of the petitioner’s prior convictions for theft

and burglary

The petitioner contends that trial counsel was deficient for opening “the door to the

[s]tate’s introduction of [the petitioner’s] prior convictions for theft and burglary that the

jury would not have otherwise heard.” Further, the petitioner argues that trial counsel should

have filed a pretrial motion to restrict the state’s use of the petitioner’s prior convictions,

objected to the state’s use of the prior convictions, and requested a limiting jury instruction

regarding the state’s use of the prior convictions. The petitioner goes on to argue that

“[c]ounsel also demonstrated their lack of preparation for this issue by not speaking to

mitigation witnesses before calling them to testify.”

a. Waiver

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The state contends that the petitioner has waived the specific issues of trial counsel

opening the door for the state to introduce the petitioner’s prior convictions for theft and

burglary and trial counsel failing to prepare witnesses to testify at the sentencing hearing by

raising them for the first time on appeal. After reviewing the record, we agree with the state

that the petitioner has raised the issue of trial counsel opening the door for the state to present

evidence of the petitioner’s prior convictions for violent offenses for the first time on appeal

and, thus, has waived the issue. As stated above, we will not allow a party to raise an issue

for the first time on appeal because such action denies the adversary opportunity to rebut the

issue with evidence and argument. See Walsh, 166 S.W.3d at 645; Adkisson, 899 S.W.2d at

635. However, because the petitioner presented testimony, albeit scarce, regarding trial

counsel’s failure to interview mitigation witnesses, we cannot agree that the petitioner has

waived the issue of trial counsel’s failure to prepare mitigation witnesses.

b. Failure to file pretrial motion to restrict the state’s use of the petitioner’s prior

convictions and failure to object to the state’s use of the petitioner’s prior convictions

We first address whether trial counsel was ineffective for failing to file a pretrial

motion asking the court to restrict the state’s use of non-statutory aggravating circumstances

such as the petitioner’s prior convictions and failing to object to the state’s use of the prior

convictions during its closing argument. The post-conviction court found that a pretrial

motion to limit the state’s proof during sentencing to statutory aggravating circumstances

would not have affected the aggravating circumstances that the state presented. The court

found that because the jury could properly consider whether the state had proven one or more

of the aggravated circumstances beyond a reasonable doubt and the unlisted non-violent

felonies were relevant to rebut mitigation, trial counsel’s failure to file pretrial motions to

restrict the use of non-statutory aggravating circumstances and a limiting jury instruction did

not prejudice the petitioner. On appeal in this case, our supreme court held that the

petitioner’s prior convictions were “relevant to rebut the mitigating testimony that [the

petitioner] was not an aggressive person.” Sims, 45 S.W.3d at 14. In his own brief, the

petitioner concedes that a motion to restrict the state’s use of non-statutory aggravating

circumstances “may have had little effect on the [s]tate’s action at trial.” Considering all of

this, we conclude that the petitioner has failed to show that he was prejudiced by trial

counsel’s failure to file a pretrial motion asking the court to restrict the state’s use of nonstatutory aggravating circumstances such as the petitioner’s prior convictions. Accordingly,

the petitioner is not entitled to relief on this issue.

c. Failure to request a limiting jury instruction

Regarding trial counsel’s failure to request a limiting jury instruction, the petitioner

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argues that trial counsel should have requested a limiting instruction regarding the

petitioner’s prior convictions. In support of his position, the petitioner cites the supreme

court’s decision in this case which states that a

limiting instruction in this case would have informed the jury that the prior

convictions could be considered solely for the purpose of rebutting the

mitigating testimony related to [the petitioner]’s character as a non-aggressive

person. Such an instruction would have decreased the danger of inserting a

non-statutory aggravating circumstance into the jury’s deliberations.

Sims, 45 S.W.3d at 15. However, we have reviewed the transcript of the post-conviction

hearing, and the petitioner has failed to present any proof as to how this alleged deficiency

on the part of counsel might have altered the outcome of his trial. His allegations of

prejudice are pure speculation. The petitioner is not entitled to post-conviction relief on the

basis of this issue.

d. Failure to prepare witnesses

The petitioner asserts that trial counsel was deficient for failing to speak with

Trezevant Gardner, Mary Gardner, and Naomi Gardner before they testified. The petitioner

allegesthat trial counsel’s failure to prepare these witnesses demonstrated the defense team’s

lack of preparation for the issue of the admissibility of the petitioner’s prior convictions.

Trial counsel testified that he did not remember contacting Trezevant Gardner, Mary

Gardner, or Naomi Gardner prior to their testimony. The witnesses testified that trial counsel

did not contact them to discuss their testimony before they testified. The post-conviction

court found that these witnesses’ testimony either did not add to the mitigation which trial

counsel presented or added “information contradicting other mitigation testimony or

introduc[ed] prejudicial, damaging evidence.” We agree with the finding of the postconviction court and add that the petitioner has failed to show how additional witness

preparation would have affected the outcome of his case. The witnesses testified that trial

counsel did not prepare them to testify; however, they offered no evidence whatsoever

regarding how preparation would have altered or improved their testimony. Accordingly, we

conclude that the petitioner has failed to show prejudice and, therefore, is not entitled to

relief on the issue.

4. Failure to make an offer of proof in order to preserve for appellate review the trial

court's error in excluding “lack of remorse” testimony from the petitioner's mother

during the penalty phase

The petitioner next contends that trial counsel was ineffective for failing to preserve

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for appellate review the trial court’s exclusion of evidence regarding the petitioner’s lack of

remorse. Trial counsel attempted to introduce evidence of the petitioner’s remorse during

the sentencing hearing by asking the petitioner’s mother if he expressed remorse. The state

timely objected on the basis of hearsay, and the trial court sustained the state’s objection.

Trial counsel did not make an offer of proof or raise the issue in his motion for new trial,

thereby waiving the issue for appellate review. The post-conviction court found that

if the witness’s answer would have tended to be mitigating, trial counsel

should have responded to this erroneous ruling of the trial judge to remind him

that hearsay is allowed in a capital sentencing hearing, and ask to be allowed

to make an offer of proof outside the presence of the jury so as not to waive

this issue. However, as post-conviction counsel has also not made an offer of

proof at the hearings on this petition as to the response of the witness, this

allegation must fail for lack of a showing of prejudice to the petitioner.

The post-conviction court further found that because the testimony would have come from

the petitioner’s mother rather than the petitioner himself, the jury would have given it little

weight. The evidence does not preponderate against the post-conviction court’s findings;

thus, we conclude that the petitioner is not entitled to relief on this issue.

5. Failure to object to the prosecutor’s argument that the petitioner deserved a death

sentence because he had not shown remorse

The petitioner contends that trial counsel was deficient for not objecting to the

prosecutor’sstatements during closing argumentsthat the petitionershowed no remorse. The

petitioner posits that the prosecutor’s statement regarding the petitioner’s lack of remorse

“improperly encouraged the jury to look beyond the scope of the evidence and consider the

non-statutory aggravating circumstance of ‘no remorse.’” The state argues that the petitioner

has raised the issue for the first time on appeal and has consequently waived the issue for our

review. After reviewing the record, we agree with the state that the petitioner has raised the

issue of trial counsel not objecting to the state’s argument regarding the petitioner’s lack of

remorse for the first time on appeal. Thus, the petitioner has waived the issue and is not

entitled to relief. See Adkisson, 899 S.W.2d at 635.

6. Failure to investigate and present evidence to rebut the medical examiner’stestimony

used to support the heinous, atrocious, or cruel aggravating circumstance

The petitioner argues that trial counsel did not fully investigate evidence to rebut the

testimony used by the state to support the application of the heinous, atrocious, or cruel

aggravating circumstance. The state claimsthat the petitioner waived thisissue by presenting

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it for the first time on appeal; however, Dr. Woods’s testimony raised this issue during the

post-conviction hearing, and we will address it. The jury found that the aggravating

circumstance that “the murder was especially heinous, atrocious, or cruel, in that it involved

torture or serious physical abuse beyond that necessary to produce death” was applicable to

the petitioner’s case. See Tenn. Code Ann. § 39-13-204 (i) (5). According to the petitioner,

if trial counsel had conducted a full investigation and obtained the victim’s medical records,

they would have “discovered that the admitting physician’s records showed that the victim

had coagulopathy due to an alcohol content in his blood of .28 percent,” which would

significantly increase bleeding and bruising. The petitioner asserts that this increased

bleeding and bruising made the photographs of the vicitm’s body “appear worse than they

would have been otherwise and enhanc[ed] the repeated references to bruising in the

testimony of the medical examiner.” The petitioner further asserts that the jury did not hear

any expert testimony regarding how his cognitive impairments made him likely to engage in

“impulsive and preservative actions,” which would “come under the heading of ‘loss of

control’ resulting in preservative actions” which justified the heinous, atrocious, or cruel

aggravating circumstance.

The post-conviction court made no factual findings regarding counsel’s failure to

investigate and present evidence to rebut the evidence used to support the heinous, atrocious,

or cruel aggravating circumstance. However, our review of the record reveals that the jury

found the following aggravating circumstances: (1) the petitioner was previously convicted

of one or more felonies involving the use of violence against a person; (2) the murder was

especially heinous, atrocious, or cruel; (3) the murder was committed for the purpose of

avoiding, interfering with, or preventing the arrest or prosecution of the petitioner; and (4)

the murder was committed during the commission of a burglary or theft. See Tenn. Code

Ann. § 39-13-204(i)(2), (5), (6), (7). Even if counsel did eliminate one of the state’s noticed

aggravating sentencing factors, it would not have removed the threat that the petitioner could

receive the death penalty because there were three other aggravating factors presented.

Therefore, the petitioner’s attack on counsel’s effectiveness based on failing to challenge the

“especially heinous, atrocious, or cruel” death penalty aggravating factor is without merit as

the petitioner has not shown prejudice.

7. Failure to investigate and present as mitigation during the penalty phase evidence

related to the petitioner’s prior incarceration in the Shelby County penal system

Next, the petitioner argues that counsel were ineffective for failing to investigate the

petitioner’s prior incarceration in the Shelby County penal system. The petitioner claims that

had counsel investigated the petitioner’s prior incarceration, “they would have discovered

critical information concerning the hellish conditions there and how those conditions drove

[the petitioner] to be mentored and unduly influenced by Sammie Netters, a professional

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criminal.” The petitioner alleges that counsel could have used the information regarding the

petitioner’s prior incarceration and relationship with Mr. Netters during mitigation to help

explain why the petitioner committed the crimes. The post-conviction court found that

“[a]lthough there was much proof put on about the horrible conditions in the jail where [the

petitioner] was housed, there was no direct link made to its effect on the petitioner or its

contribution to the murder.” The court went on to state that it was unfortunate that the

petitioner chose Mr. Netters to be his mentor and role model; however, it was significant that

the petitioner led the burglary of the victim’s home and did not commit the crimes under

anyone else’s influence. The post-conviction court ultimately found that the petitioner did

not show prejudice because none of the additional mitigation submitted by the petitioner at

the post-conviction hearing “would tend to lessen the culpability of the petitioner,” help the

petitioner, or show that a sentence other than death was more appropriate. The evidence does

not preponderate against the findings of the post-conviction court. Although there was ample

testimony regarding the conditions in the Shelby County penal system while the petitioner

was incarcerated and regarding the petitioner’s relationship with Mr. Netters, there was no

evidence which showed how either would have affected the outcome of the trial and

sentence. Accordingly, we conclude the petitioner has failed to meet the burden of proving

that there is a reasonably probability that, but for counsel’s deficiency in failing to investigate

the petitioner’s prior incarceration in the Shelby County penal system, the results of the

proceedings would have been different. The petitioner is without relief on this issue.

8. Failure to investigate and present all available mitigation witnesses and properly

prepare those individuals who did testify as mitigation witnesses

For his next issue, the petitioner alleges that trial counsel failed to investigate and

present all available mitigation witnesses and that counsel did not adequately prepare those

mitigation witnesses who did testify. The petitioner cites Wiggins v. Smith to support his

claim that counsel’s failure to investigate and present all available mitigation witnesses and

failure to prepare the witnesses who did testify amounted to deficient performance. See

Wiggins v. Smith, 539 U.S. 510, 524-25 (2003) (holding that counsel were ineffective for

“abandon[ing] their investigation of [the] petitioner’s background after having acquired only

rudimentary knowledge of his history from a narrow set of sources”).

In Wiggins, the evidence during the post-conviction hearing revealed that Wiggins

suffered

severe privation and abuse in the first six years of his life while in the custody

of his alcoholic, absentee mother. He suffered physical torment, sexual

molestation, and repeated rape during his subsequent years in foster care. The

time Wiggins spent homeless, along with his diminished mental capacities,

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further augment his mitigation case.

Id. at 535. The Court held that Wiggins had “the kind of troubled history [they] have

declared relevant to assessing a defendant’s moral culpability.” Id. (citing Penry v.

Lynaugh, 492 U.S. 302, 319 (1989)). The state contends that this case is distinguishable

from Wiggins because the evidence presented at the post-conviction hearing established that

“if anything, [the petitioner] had a relatively stable, albeit imperfect, family environment”

and fell “short of the quantum of evidence required by Wiggins.” The state claims that

Carter v. Mitchell, 443 F.3d 517, 531 (6th Cir. 2006), where the Sixth Circuit found no

prejudice when the mitigating evidence showed that the petitioner had a “relatively stable,

although imperfect, family environment . . . [with] no allegations of physical or sexual

abuse,” is more applicable to this case.

At the post-conviction hearing, the petitioner presented the testimony of Naomi

Gardner, Mary Gardner, and Trezevant Gardner, who testified at the petitioner’s trial. The

petitioner also presented the testimony of Mr. Wilson, Ms. Baptist, Mr. Netters, Dr. Woods,

and Dr. Auble, none of whom testified at the petitioner’s trial. The petitioner did not call any

other witnesses to testify regarding additional information that counsel may have discovered

upon further investigation or during pretrial interviews. The post-conviction court found that

the testimony of the witnesses that the petitioner called during his post-conviction hearing

to show additional mitigation either did not add to the mitigation presented, added

information which contradicted the other mitigation testimony, or introduced prejudicial

evidence. The court further found that the evidence presented by post-conviction counsel

showed that

[u]nfortunately for the defense, the petitioner didn’t lead a traumatic or

deprived childhood. Unlike the vast majority of the defendants which qualify

for the sentence of death, the petitioner’s father married his mother, the

petitioner grew up in a two-parent household with additionally three loving

aunts on whom he could depend.

The court found that although counsel did not present the additional mitigation during the

trial, “it would not have helped the petitioner, and some of it, necessitating the revelation [of]

bad traits and acts of the petitioner, might have done a considerable bit of damage.” The

court found that the petitioner had not shown prejudice and his allegation was without merit.

a. Failure to investigate and present all available mitigation witnesses

We agree with the state that the evidence presented at the post-conviction hearing in

this case does not rise to the quantum of evidence required by Wiggins. Furthermore, we

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conclude that the evidence does not preponderate against the post-conviction court’s finding

that the petitioner had failed to show prejudice. Regarding the petitioner’s claim that counsel

failed to call, investigate, and present all available mitigation witnesses, the witnesses

presented at the post-conviction hearing who did not testify during mitigation were Mr.

Wilson, Ms. Baptist, Mr. Netters, Dr. Woods, and Dr. Auble. The testimony of Mr. Wilson

and Ms. Baptist would not have provided any additional information outside of what those

witnesses who did testify during mitigation gave, and, as the post-conviction court noted, it

would have revealed unfavorable facts about the petitioner such as his abuse of alcohol and

drugs. Both witnesses testified at the post-conviction hearing regarding the petitioner’s past

including his family which counsel presented during mitigation through the testimony of the

petitioner’s mother, father, aunts, and brother. Therefore, the petitioner was not prejudiced

by not having Mr. Wilson or Ms. Baptist testify during mitigation, as they would not have

provided any additional information which would have tended to cause the jury to strike a

different balance. Mr. Netters’ testimony regarding the conditions in the Shelby County

penal system and his relationship with the petitioner would not have, as we previously stated,

lessened the petitioner’s culpability, helped the petitioner, or showed that a sentence other

than death was more appropriate. Dr. Auble’s and Dr. Woods’s testimony regarding the

petitioner’s brain impairments was merely speculative and did not support diminished

capacity or any of the statutory mitigating circumstances. In addition, the strength of the

aggravating circumstances that the state presented suggests that the jury would not have

reached a different decision had these witnesses testified. Accordingly, we conclude that the

petitioner has failed to show that he was prejudiced by trial counsel’s not calling these

witnesses, and the issue is without merit.

b. Failure to properly prepare those individuals who did testify as mitigation

witnesses

As previously stated in section II(3)(d) of this opinion, the petitioner has failed to

show how additional witness preparation would have affected the outcome of his case. The

witnesses who testified during mitigation offered no evidence regarding how additional

preparation would have altered or improved their testimony. Accordingly we conclude that

the petitioner has failed to show prejudice and, therefore, is not entitled to relief on the issue.

9. Failure to challenge the jury instructions

a. Failure to challenge the heinous, atrocious, or cruel jury instruction

The petitioner contends that trial counsel was ineffective for failing to challenge the

trial court’s instruction to the jury regarding the heinous, atrocious, or cruel aggravating

circumstance. The petitioner concedes that the trial court instructed the jury per Tennessee

Code Annotated section 39-13-204 and that he challenged the heinous, atrocious, or cruel

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aggravating circumstance on direct appeal. The petitioner asserts that his prior challenge

“was that there was not sufficient evidence to support [the heinous, atrocious, or cruel

aggravating circumstance].” The petitioner claims that because trial counsel were

ineffective, the jury was unable to consider that the victim’s “high intake of alcohol caused

coagulopathy which, in turn, caused more bleeding and bruising” or that the petitioner’s

“frontal lobe impairments are associated with problems in stopping, braking, or modulating

ongoing behavior.” The state contends that the petitioner has raised this issue for the first

time on appeal and has thus, waived the issue. We disagree. Because Dr. Woods’s testimony

raised this issue during the post-conviction hearing, we will address it.

Upon review of the petitioner’s brief, we note that the petitioner’s argument that the

jury did not hear evidence regarding the victim’s coagulopathy or the petitioner’s brain

impairments is essentially the same argument as in section II(A)(6) of this opinion. As we

concluded above, even if counsel were deficient for failing to object to the heinous,

atrocious, or cruel aggravating circumstance jury instruction, the petitioner has not shown

prejudice because there were three other aggravating factors presented. Therefore, the threat

that the petitioner could receive the death penalty remained. Accordingly, we conclude that

this issue is without merit.

b. Failure to object to other jury instructions

The petitioner also argues that counsel were ineffective for failing to object to several

other jury instructions. The petitioner candidly admits that “Tennessee courts have ruled

against the jury instruction issues that he raised in his Amended Petition” and stated that he

is raising the jury instruction issues in his brief to “preserve them for possible review at a

later stage of the proceedings.” The petitioner continues to object to the following jury

instructions:

1. That a unanimous verdict is necessary in order for the petitioner to receive a life

sentence. This argument has been previously rejected by our supreme court. See

State v. Stevens 78 S.W.3d 817, 850 (Tenn. 2002); State v. Vann, 976 S.W.2d 93, 118

(Tenn. 1998); State v. Smith, 893 S.W.2d 908, 926 (Tenn. 1994).

2. The jury enters into its investigation with a presumption that the defendant is not

guilty of any crime and this presumption stands as a witness for him until it is rebutted

and overturned by competent and credible proof. The petitioner claims that the court

should have charged that the presumption stands unless it is rebutted. This instruction

has been upheld. See Ronald Donnell Moore v. State, No.

W2008-00034-CCA-R3-PC, 2009 WL 1424186, at * 7 (Tenn. Crim. App. at Jackson,

May 20, 2009), perm to appeal denied (Tenn. Oct. 19, 2009).

3. “It is not necessary that the defendant’s guilt be proven beyond all possible doubt,

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as absolute certainty of guilt is not demanded by the law to convict any criminal

charge.” This jury instruction has been previously upheld. See State v. Rimmer 250

S.W.3d 12, 31 (Tenn. 2008); State v. McPherson, 882 S.W.2d 365, 374-5 (Tenn.

Crim. App. 1994); State v. Derek Denton, No. 02C01-9409-CR-00186, 1996 WL

432338, at *8-9 (Tenn. Crim. App., at Jackson, Aug. 2, 1996).

4. That the jury may only consider a lower offense after it first considers the higher

offense and finds the defendant not guilty of the higher offense. We have previously

upheld this type of “sequential” jury instruction. See State v. Rutherford, 876 S.W.2d

118, 119-20 (Tenn. Crim. App. 1993).

5. “It is not necessary that the aggravating circumstance(s) be proved beyond all

possible doubt, as absolute certainty is not demanded by the law.” This instruction

was approved in State v. Dellinger, 79 S.W.3d 458, 501-2 (Tenn. 2002). See also

State v. Nichols, 877 S.W.2d 722, 734 (Tenn. 1994).

6. That the murder was “knowingly committed, solicited, directed, or aided by the

[petitioner], while the [petitioner] had a substantial role in committing or attempting

to commit, or was fleeing after having a substantial role in committing or attempting

to commit, any burglary or theft.” The petitioner claims that the jury should have

been charged in the disjunctive or charged to make a specific finding of upon which

felony it relied. The argument that jurors must agree as to which theory supports that

the murder is especially heinous, atrocious, or cruel has previously been rejected. See

State v. Keen, 31 S.W.3d 196, 209 (Tenn. 2000).

All of the instructions to which the petitioner objects have been upheld and approved by

Tennessee appellate courts; thus, the issues are without merit.

The petitioner further argues that “[c]ounsel were ineffective for failing to request an

instruction concerning the consequences of failure to agree at [the] penalty [phase] and by

failing to request an instruction that the jury be informed that guilt phase verdicts will not be

affected.” The petitioner asserts that such an instruction is necessary because without it “the

jury may erroneously assume that a failure to agree as to penalty will also require a guilt

retrial.” This argument has been previously rejected by our supreme court. See State v. Ivy,

188 S.W.3d 132, 162 (Tenn. 2006); State v. Stevens, 78 S.W.3d 817, 850 (Tenn. 2002);

Vann, 976 S.W.2d at 118; Smith, 893 S.W.2d at 926. Thus, we find no error.

10. Failure to raise or adequately raise certain issues on appeal from the petitioner's

convictions and resulting sentences

Next, the petitioner claims that appellate counsel were ineffective for failing to raise

on appeal or inadequately raising the claims regarding ineffective assistance of counsel and

the constitutionality of the death penalty which we discussed in this opinion. Appellate

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counsel’s representation did not fall below a reasonable standard for not raising the

ineffective assistance on appeal.

[T]his court has consistently “warned defendants and their counsel of the

dangers of raising the issue of ineffective assistance of trial counsel on direct

appeal because of the significant . . . amount of development and fact finding

such an issue entails.” Raising the issue of ineffective assistance of counsel

on direct appeal is “a practice fraught with peril.” The defendant runs the risk

of having the issue resolved “without an evidentiary hearing which, if held,

might be the only way that harm could be shown-a prerequisite for relief in

ineffective trial counsel claims.” The better practice is to make an ineffective

assistance of counsel claim in a post-conviction proceeding.

State v. Mosley, 200 S.W.3d 624, 628-629 (Tenn. Crim. App. 2005) (citations omitted).

Furthermore, even if appellate counsel were deficient, this court has found the claims to be

without merit, therefore, the petitioner has not shown prejudice. This issue is without merit

and the petitioner is not entitled to relief.

III. Constitutional Errors in the Imposition of the Death Penalty

The petitioner also raises various constitutional challenges to the death penalty in

general and as applied in his case, as well as to the capital sentencing scheme and the laws

of this state. Specifically, the petitioner contends that: (1) Tennessee’s death penalty scheme

is unconstitutional; (2) Tennessee’s present method of execution by lethal injection is

unconstitutional under both state and federal law; (3) the petitioner’s death sentence

unconstitutionally impinges upon his fundamental right to life; (4) the petitioner’s death

sentence must be set aside because the indictment charging him with the crime for which he

received his death sentence did not contain the aggravating circumstance used to enhance the

penalty to death; and (5) the petitioner’s death sentence violates his rights under customary

international law and treaties by which the United States is bound, thereby violating the

Supremacy Clause of the United States Constitution. For the reasons stated below, we

conclude that these issues are without merit.

A. Tennessee’s death penalty scheme is unconstitutional

The petitioner specifically argues that the Tennessee death penalty scheme is

unconstitutional because (1) it fails to meaningfully narrow the class of death eligible

defendants; (2) the appellate review process is not meaningful because the court cannot

reweigh proof due to the absence of written findings concerning mitigating circumstances,

the information relied upon by the court for comparative review is inadequate and

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incomplete, and the court’s methodology is flawed; and (3) it gives prosecutors unfettered

discretion to seek the death penalty. The petitioner’s argument that the statute fails to

meaningfully narrow the class of eligible defendants has been considered many times. See

State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992); State v. Howell, 868 S.W.2d 238

(Tenn. 1993). Likewise, courts have rejected the petitioner’s argument that appellate review

process is inadequate. See State v. Cazes, 875 S.W.2d 253, 268-69 (Tenn. 1994); Vann, 976

S.W.2d at 118-19. Finally, the petitioner’s claims that the death penalty statute vests

unfettered discretion as to whether or not to seek the death penalty in the prosecutor have

been repeatedly rejected by the courts of this state. See State v. Hines, 919 S.W.2d 573, 582

(Tenn. 1995); State v. Brimmer, 876 S.W.2d 75, 87 (Tenn. 1994); Cazes, 875 S.W.2d at 268;

State v. Smith, 857 S.W.2d 1, 23 (Tenn. 1993).

B. Tennessee’s present method of execution by lethal injection is unconstitutional under

Article I, sections 8 and 16 of the Tennessee Constitution and Amendments 8 and 14 of

the United States Constitution

The petitioner asserts that execution by the means of lethal injection violates his rights

to be free from cruel and unusual punishment. The Tennessee Supreme Court has considered

this claim and determined that Tennessee’s lethal injection protocol is consistent with both

contemporary standards of decency and the overwhelming majority of lethal injection

protocols used by other states and the federal government. Abdur’Rahman v. Bredesen, 181

S.W.3d 292, 306-07 (Tenn. 2005). On April 16, 2008, the United States Supreme Court

affirmed the use of the three-drug protocol which Kentucky used in its lethal injection

procedure. Baze v. Rees, 553 U.S. 35 (2008). Tennessee uses the same protocol as

Kentucky. Id. (citing Workman v. Bredesen, 486 F.3d 896, 902 (6th Cir. 2007)). The

petitioner is not entitled to relief on this issue.

C. The petitioner’s death sentence unconstitutionally impinges upon his fundamental

right to life

The petitioner argues that his death sentence impinges upon his fundamental right to

life and is not necessary to promote any compelling state interest. This complaint is contrary

to settled precedent as reflected in Cauthern v. State, 145 S.W.3d 571, 629 (Tenn. Crim. App.

2004) (citing Nichols, 90 S.W.3d at 604); State v. Mann, 959 S.W.2d 503, 536 (Tenn. 1997)

(appendix); State v. Bush, 942 S.W.2d 489, 523 (Tenn. 1997)). Thus, the petitioner is not

entitled to relief on this issue.

D. The petitioner’s death sentence must be set aside because the indictment charging

him with the crime for which he received his death sentence did not contain the

aggravating circumstance used to enhance the penalty to death

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The petitioner contends that the failure to include aggravating circumstances in the

indictment violates the Fifth and Eight Amendmentsto the United States Constitution as well

as Article I, sections 8, 14, and 16 of the Tennessee Constitution. The Tennessee Supreme

Court has rejected this argument, stating, “[n]either the United States Constitution nor the

Tennessee Constitution requires that the State charge in the indictment the aggravating

factors to be relied upon by the State during sentencing in a first degree murder prosecution.”

See Dellinger, 79 S.W.3d at 467; State v. Holton, 126 S.W.3d 845, 862-63 (Tenn. 2004).

E. The petitioner’s death sentence violates his rights under customary international law

and treaties by which the United States is bound, thereby violating the Supremacy

Clause of the United States Constitution

The petitioner next argues that Tennessee’s imposition of the death penalty violates

treaties of the United States and, therefore, the federal constitution’s Supremacy Clause. He

contends that the Supremacy Clause was violated when the court disregarded his rights under

treaties and customary international law to which the United States is bound. The courts

have systematically rejected arguments that the death penalty is unconstitutional under

international laws and treaties. See State v. Odom, 137 S.W.3d 572, 600 (Tenn. 2004); see

also Medellin v. Texas, 129 S.Ct. 360 (2008) (holding that international treaty is not binding

on domestic law unless Congress enacts statutes implementing it or unless the treaty is

self-executing and that decisions of the International Court of Justice are not binding on

domestic law). We discern no viable reason to resolve this issue in a different manner in this

case. The petitioner is not entitled to relief on this issue.

Conclusion

After a thorough review of the record and the law applicable to the issues raised

herein, we conclude that the petitioner has failed to demonstrate that he is entitled to postconviction relief. The judgment of the post-conviction court is affirmed.

___________________________________

J.C. McLIN, JUDGE

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