# FILED
December 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1998 SESSION
SYLVESTER SMITH, ) ) NO. 02C01-9801-CR-00018 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. BERNIE WEINMAN, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction) OPINION CONCURRING IN PART; DISSENTING IN PART
I agree in most respects with the well-written majority opinion by Judge David G. Hayes. I agree, as the sta t e conced es, that petition er was depr ived of ef fective assistance of counsel at the sentencing phas e due to counsel’s failure to recogni ze the necessity for and present appropriate proof of “mental retardation”

which would disqua lify

petitioner from the death penalty

. See Tenn. Code Ann. § 39-13-203. Both deficientperformance and prejudice wer e established in this regard, and petitioner is clearly e ntitled t o a new sentencing heari ng. However, I d o not agree that petitioner is entitled to a new trial on the basis of ineffective assistance of counsel.

STANDARDS - INEFFECTIVE A SSISTANCE OF C

OUNSEL

The majority opini on corre ctly notes that, in o rder to es tablish i neffe ctive assistance of counsel, a petitioner bears the burden of proving not onl ythat counsel’s performance was deficient, but also that the deficient perf ormance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed . 2d 674 (1984). To establish th e prejudice prong, the bur den is on the petitioner to “show that there is a reasonable probabili ty that, bu t for
c o unsel’s unprofessional errors, the result of the proceeding w ould have been different.” Id. at 694, 104 S.Ct. at 2068. A reasonable probability is one sufficient to undermine confidence in the outcome of the pr oceeding. Id.2 The majority opinion finds deficient performance and prejudice with regard to competency to stand tri al and a possible insanity defense; therefore, the majority opinion sets aside theconviction and remands for a new trial. In lig ht of petitioner’s prior history, I agree that counsel was deficient in failing to secur e a full mental evaluation in this capi tal case. H owever, I do not believe that petitioner met his burden of establishing that, but for this deficiency, the result of the proceeding would have been different.

COMPETENCY

As to compe tency to stand trial, the sole testimony which could arguably establish incompetence to stand trial was that of Dr. Bernet, who stated, “the fact that he wasn’t on medication at th e time, that when he’s not on medication...he is hallucinatingand psychotic and disorganized...it’s m ore likely than not that he w as not competent at the time of the trial.” However, I w

ould note that tr ial counsel testified they had no probl ems commun icating with the peti tioner before or during trial. Dr. Hutson personally int erview ed the petitioner before trial,and although he did not perform a competency evaluation, interestingly, he apparently did not notice anything about the petitio ner’s alleged incompetence. The trial court made the following pertinent findings:
The record rev

eals thatcounsel was able to discuss the case with the defendant and his position w as that he did not commit t he offense and was not pres ent at the home of the victim and knew nothing about the crime. A n egot iated plea was discuss ed with the defendant which he turned down and he maintained his i nnocen ce. .

. . Dr. Bernet opined that the defendant was

not competent

at the time of trial. But as previously stated there is nothing in the record from the people that were dealing w ith the defendant at or near the time oftrial that would indicate that M r. Smith was not competent.
Petitioner

has failed to establish a reasonable probability that he, in fact, was incompetentat the time of trial. The evidence does not preponderat e against the findings of the trial court.3 INSANITY

As to the insanity defense, petitioner’s proof is even w eaker . Again, t he majority opinion appears to rely upon the test imo ny of Dr. Bernet. Dr. Bernet’s testimony

was speculative at best. Dr. Bernet opined that the psychotic and retarded condition of the defendant “ may have prevented h im from u nderstanding the wrongfulness of his actions or conforming his actions to the requirements of the law.” (emphasis added). Howe ver, Dr. Bernet conced ed petitioner’s mental condition fluctuat ed and his inability to understand the wrongfulness of his actions or t o conform his conduct to the requir ements of the law would occur when “he’s havi ng a bad day.” He further conc eded that one could b e psychotic and not meet the requirements

of the insanity defense. The petiti oner has not shown a reasonable probability

that on the date of

the homicide he was “havin g a bad d ay” so as to qu alify for the insanity defense. The trial court noted: The doctor

further indicated that the defendant may have been insane wh e n the crime was committed. The evidenc e taken in the best light of the petitioner woul d indicate that attimes the defendant was psyc hotic and at other times he w as in remission. “When the accused’s mental illness is subject to remission, the evidence must establish that the accused’s illnes s was not in remissi on when he committed the offens e in question.” Forbes v. State , 559 S.W.2d 318, 325 (Tenn. 1977). (em phasis added) Again, pe titioner has failed to meet his burden of estab lishing a reasonable probability

that the insanity defense would have been successful had it been pursued bytrial counsel. The evi dence does not preponderate agains t the findings of the trial court.

FAILURE TO ESTABLISH PREJUDICE
The majority opinion states that it is “impossible to fathom thatthe appellant
was not prejudiced by tri al counsel’s failure to explore the appellant’s mental history.” The opinion then states that “[t]h e psychiatric evi dence, if properly inv estigated and4

presented, could h ave totally changed the ev identiary picture in

the present case.” (emphasis added). The opinion also states that “abs ent the d eficiencies, the outcomeof the trial might well have been different .” (emphasis added). “Could h ave”
or “might well have” is not the test under Strickland

. Strickland requires the petitioner to show a reasonable probability that the result o f the proceed ing “ would have been different .” Strickland v. Washington , 466 U.S. at 694, 104 S.Ct. at 2068 (emphasis added). I would emphasiz e that Strickland was also a capital ca se. The majority opinionfurther states that “[w]hen defense counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, there has been
a denial of Sixth Amendment rig hts th at m akes the adversary process itself presumptively unreliable. United States v. Cronic , 4 66 U.S. 6 48, 659, 104 S.Ct. 2039, 2045, 80 L.Ed. 2d 657 (1984). I fail to see the basis f or application of this principle under the facts and circumstances of this case. In summary, I would remand for a new sentencing hearing; however, I would not remand for a new trial and would affirm the convicti on.

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___________ JOE G. RILEY, JUDGE