### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON August 5, 2003 Session
JASON M. WEISKOPF v. STATE OF TEN NESSEE
Direct Appeal from the Criminal Court for Shelby County

No. P 25719 J. C. McLin, Judge

No. W2002-01675-CCA-R3-PC - Filed December 22, 2003

Petitioner, Jaso n M. W eisko pf, was convi cted o f firs t degr ee premeditat ed murder and was sentenced to life impr

isonment. This Court affirmed Petitioner’s conviction. State v. Jason M. Weiskopf , No. W2000-02308-CCA-RM-CD, 2000 Tenn. Crim. App. LEXI S 787 ( Tenn. Cr im. App. at Jackson, October 11, 2000). Petitioner timely filed a petition for post-conviction relief. Follow ing a n evidentiary

hearin g, the trial court denied post-conviction relief. I n this appeal, Petitioner

raises one issue for our review : w hether trial counsel was ineffective for failing to present evidence of Petitioner’s diminished capacity. Af ter a careful review of the r ecord, we affirm

the judgment

of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Post-Conviction Court Affirmed
T HOMA S T. W OODA LL , J., delivered the opinion of the court, in which N ORMA M C G EE O G LE an d R OBER T W. W EDEMEYER , JJ., joined. Robert C. Brooks, Memphis, Tennessee, for the appellant, Jason M. Weiskopf.
Paul G. Summers , Attorne y G eneral and Repor

ter; P. Robi

n Dixon, Jr., A ssistant A

ttorney Genera l; Willia m L. Gibbons, D istrict At

torney Genera l; John Campbe ll, Assista

nt District Attorne

y G eneral ; and Raymond L epone, Assistant District Attorney G eneral, for the a ppellant , the State

of Tennessee.
OPINION
Proof at Trial The proo f was summarized by this Court on direct

appeal a s follows:
The state’s proof revealed that the defendant and the victim were both employed at the Ridgeway

McDonald’s in Memphis. On September 13, 1994, a day prior to the homicide, the defendant and the victim had a verbal a l tercati on in the cooking area. T hat ni ght the defendant told a fellow employ ee, Cornelius-2-

Buchanan, that he intended to shoot the victim the next morning since he was tired of being called “bitches and whore s” by the victim.
The next morning at appro ximately 2:50 a.m., Mary Lee, the opening manage r for McDonald’ s, arrive d at the Rid geway location to prepa re for the 5:00 a.m

. openi ng. Both the defendant and the victim were scheduled to report at 4:00 a. m. Shortly before 4:00 a.m., Jafus Miller, another employ ee, hea rd three (3) shots while he was sitting in his vehicle. He as s umed, however, that they were firecr ackers

. Lee also heard a noise about

that time , yet did not realize it was gunfire.
When the emplo ye es did not r eport to work at 4:00 a.m., Lee tried to re ach the defendant by phone and wa s told he had already left for work. At a

pproximate ly 4:15 a.m., the defe

ndant ca lled her and actu ally arrive d at work

at 4:22 a. m. Shortly thereafter, Miller discovered the victim’s body in the McDonald’s parking lot. The victim had been shot once in the back and twice in the face. The auto psy report revealed that the victim died as a result of these gunshot wounds.
Onthe date of the shooting the defendant told Buchanan, “I told y ou I was gonna kill Marquese.” Buchanan did not believe the defendant. The following day the defendant again told Buchanan that he had shot the victim. He stated that he had walked up to the victim in the parking lot, shook his hand and apologized for the prior altercation. W hen the victim turned his back, the defendant said, “You mother f_ _ _ _ _” and shot the victim in the back. Defendant related tha t the victim pled for his life just prior to defendant ’s sho oting him twice in the face. The defendant stated, “the mother f_ _ _ _ _s at work will respec t me now.” Defendant further stated he felt no g uilt as a result of the shooting.
The defenda

nt was inte

rvie we d b y the homicide division at approximately 1:00 p.m. on the date of the homicide. He denied shooting the victim. Upongathering other information, the au thorities arrested defendant on Septe mber 16, 1994. A

t the time of his arrest he stated that he knew who “had snitched on him.” U p on being

interrogated, the

defenda nt stated t

hat he sho t the victi

m because he was “ messing with me. H e was g oing to shoot me eventually.” He stated that he waited for the victim to arrive at McDon ald’s prior to th e shoo ting. He further conceded that the victim was not armed with a we apon and made no mention that the victim did any thing to him just prior to the shooting. The defendant stated he was simply

afraid that the victim would

eventua lly shoot him. Defendant

also took t

he author ities to a dumpster where he had thrown the murder weapon. The weapon was recove red.-3-

The defense

proof consisted of

another fellow employ

ee, Morris Robinson, who testified that both the defendant

and the victim had threatened each other on prior occasions. He further testified that the defendant had told him prior to trial that he tho ught t he vic tim w as goin g for a gun at the time of the shoot ing. The defendant elected not to testify , and there was no further defense proof.
State v. Jason M. Weiskopf

, No. 02C01-9611-CR-00381, 1998 Tenn. Crim. App. LEXI S 153 (Tenn. Crim. App. at Jackson, February 4, 1998).
Post-C onviction H earing
Dr. Wyatt Nichols, a clinical psy chologist, testified at the pos t-convict ion hear ing that he first met Peti tioner in 1988 afte

r Petitione

r’s mothe r sough t treatme nt for Pet

itioner. Dr. Nicho ls charac teri zed

Petitioner at that time as defiant “to an extreme.” I n September of 1994, following Petitioner’s arrest in this case, Petitioner’s trial counsel requested an

evaluation of Petitioner from Dr. Nichols. Petitioner was eighteen y ears old at that time. Dr. Nichols met with Petitioner on six different occasions. Dr. Nichols also spoke to Petitioner’s parents and a thera pist who had previous ly

treated Petitioner. Dr. Nichols administered a personality

test to Peti

tioner, a nd the tes t indicated that Petitioner was “scared,” “depresse d,” and “paranoid,” but

those con ditions we

re part ly attributa ble to Petitioner having been in jail for one month. Dr. Nichols also interviewed Petitioner regarding the offense. Dr. Nichols diag nosed Peti

tioner a s having

“mixed personality

disorder with paranoi d featur es, depr ession, a ntisocial featur es, and . . . identity

confusion.” Petitio ner told Dr. Nichols that he began “hearing voic es” following an incident in school when “he was beaten up by some guys.”

Petitioner “heard

voices” telling h im that the

victim in th

is case w as going

to hurt him. Dr. Nichols distinguished Petitioner fromdiagno sed schizo phrenic s or manic

depress ive individ

uals who “truly hear

voices.” Dr. Nichols speculated that the voices that Petitioner hear d were his thoughts for which he denied ownership.
Dr. Nichols te stified th at Petiti oner was not psyc hotic at the time of this offense, but Dr. Nichols observed that Petitioner “m ay bec ome psychotic” in the f uture. Dr. Nichols testified that on the morning of the offense, Petitioner “knew wha the was doing, in the sense that his stressors or his psychologica

l condition wasn’t

such that he was psychotic a nd out of touch with reality.” Dr. Nichols testified, however , that Petit ioner’s “judgme nt was impa

ired com pared to somebody

else ina similar situation. . .becaus e of his tendency toward paranoia, suspiciousness, [and] strong feeli ngs of

inadequacy .” Petitioner’s psycholog ical condition would cause him to “take a situation and misinterpret it as b eing mor e threa tening t o him than a ty pical situ ation,” a nd Petition er would perceive himself a s the victi m. Dr. Nic

hols did not believe, however, that Petitioner

was “acting in
a state of f ear” on the day of the of fense. Dr. Nicho ls testifie d that Petit ioner’s judgmen t was to some degree impaired by

his personality disorder.
In a letter written to Petitioner’s trial counse l, Dr. Nichols stated,-4-

[Petitioner ’s] responses to the MMPI- 2 sugg est that [he ] has a chr onic history of psychiatric

difficul ties. He i s an immatu

re, self indulgent

adolesc ent who ha s a very poor self-esteem and who is hy persensitive to the pointof being suspicious or par a noid abou

t the acti ons of othe

rs. Due to

his prese

nt situation, he is obviously depressed and experiencing a hig h de g ree of distress. This is in part due to his lack of coping skills. At this point his level of distress is such that he may have dif ficulty differentiating his thoughts or experiences fr om reality . His paranoi a may make it difficult for

[him] to interpret others[’] actions and thus, he might overreact out of feelings of f ear in a situation wh en a threat does not actually exist. . . . The degree of his di stortio ns and confused thinking may at times be at the

point of be ing psy

chot ic. . . . I do believe that his emotional condition, including his level of psyc hological functioning did impair [his] judgment and ability to func tion at the time of the offense.
D r. Nich ols testified that he met with trial counsel prior to trial, and Dr. Nichols told trial counsel that in the

course of his evaluation of Petitioner, he became aware of some facts that might hurt his defense if revealed

during cross-examination. Dr. Nichols testified that Petitioner had told
a friend on the day

before the offense that he planned to shoot the victim. Petitioner also attempted to concea l the wea pon afte r the sh oot ing, and he shot the victim three times as the victim was walking away

from him. T

here we re also in consiste ncies in Petitioner ’s statements to the police and what he told Dr. Nichols.
Mr. John Pierotti testified that he was the District Attorney General at the time of Petitioner’s trial. He testified

that after meeting with Petitioner’s trial counsel and reviewing the letter fr om Dr. Nichols addressingPetitioner’s mental condition, he advised Mr. Tom Henderson, the prosecuting at to rn ey, that Petitioner

might present a viable claim of diminished capacity and requested that Mr. Henderson

inform the victim’s family of that possibility

. Mr. Pierotti also testified that Petitioner’s trial counsel indicated that Petitioner would accept a guilty plea offer of thirty

-five ye ars. Petitioner called Donna Leva

ugh, a juror

at his trial, to testify at the post -conv icti on hea ring. The State imme diately

objecte d to her

testimony. Petitioner’s counsel arg ued that the purpose of her testimony was not to impeach the jury’s verdict, but rather that “[trial c ounsel’s ] failure

to put on thi s proof [of diminish ed capa

city ] might ver

y w ell have

made a di ffere

nce in the ve rd ic t” of

th e j ur y. Counsel argued tha

t Te nnessee

Rule of Evidence 6 06(b) wa s theref ore not a pplicabl e. The po stconvictioncourt declined to consider the juror’s testimony , but allowed Petitioner to make a proffer of proof. Ms. Levaug

h testified that she had

reviewed Dr. Nichols letter to Petitioner’s trial counsel regarding Petitioner’s mental condition. Ms. Levaugh testified tha t had that information bee n availab le to her

at trial, it would have “sway

ed” her into considering the possibility that Petitioner’s actions might have been

caused by his menta

l condition and the verdict might ha ve been differe nt.
We note that

in order to rece ive relie f based o n th e ine ffective assistance of counsel, a defendant mu st demonstrate that there is “a reasonable proba bility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v.-5-

Washington , 466 U.S. 668 , 69 4, 1 04 S . C t. 205 2, 8 0 L. Ed. 2d 674 (1984). However, neither the trial courts nor this Court require the testimony of juror s to make th

at deter mination. C ourts “f

requent ly make such determinations without the benefit of juror testimony in the con text of c laims of ineffective assistance of counsel .” State v. Grov er Donne ll Cowart , No. E200 2-02232- CCA-R3-PC, 2003 Tenn. Crim. App. LEXI S 556 (Tenn. Crim. App. at Knoxville, June 27, 2003) perm. to app. denied (Tenn. 2003). The post-conviction court properly decline d to consi der the proffered testimony.
Mr. Lesl ie Balli

n, Petition er’s co

unsel at tr

ial, test ified tha t he learned of Petitioner’s “emotional problems” from Petitioner’s family members and subsequently requested a mental evaluation

from Dr. Nichols. Mr. Ballin used the information received from Dr. Nichols regarding Petitioner’s mental condition in an attempt to negotiate a plea agr eement with the State prior to trial

. Mr. Ballin be lieved th at a neg otiated p lea ag reemen t by which Pet

itioner w ould

be convicted of second degree murder would have be nefitted Petitioner

because of

the damaging evidence r

evealed in the investigation

of the offense, including evidence tha t Petitioner

said that he was g oing to ki ll the victim and boasted about the killing afterwards. Other harmful evidence included Petitioner’s confession

to the police that he waited for the victim to arrive and shot him in the back. Mr. Ball in testified that he me

t with Petiti oner appr oximately twelve to eightee n times outside of court prior to trial, and Petitioner gave inco nsistent ve rsi ons of the

facts. Also, the ve

rsion of e

vents surrounding the shooting that Petitioner told Dr. Nichols was different from what he told Mr. Ballin. Those inconsiste

ncies concerne d Mr. Ba

llin and a ffecte d his deci s ion not to cal l Dr. Nichols as a witness for the defense. Mr. Ballin also testified that he decided not to cal l Dr. Nichols as a w itness ou tof concern that facts reg arding Petitioner’s prior history of gang involvement, anti-s ocia l behavior, and prior

incident s involving weapons would be revealed during cross-examination. Mr. Ballin believed Dr. Nichols’ testimony would be more harmful than helpful to Petitioner’s case. Mr. Ballin also advised Petitioner not to testify at trial.
Prior to trial, Mr. Ball i n filed a “Notice Pursuant to Rule 12.29 (a) and (b),” whic h stated, “Defe ndant

in this cau se intend s to rely upon exper

t testimony

pertain ing to his mens rea of th e offense charg ed.” Te

nnessee Rule of Cr

iminal Proc edure 12 .2(b) pr ovides:
If a defendant intends to introduce expert testimony relating to a menta

l disease or defect or any

other mental condition of the defendant bearing upon the issue of his or her guilt, the defendant shall, w ithin the time provided for the filing of pretrial motions or atsu ch later time as the court may direct, notify the district attorney in writing

. . . . Mr. Ba llin testified that he “wanted to keep that option open” of calling Dr . Ni chols as a witness.
At trial, Mr. Ballin attempted to lessen the degree

of homicide by pre senting testimony that the victim had threatened Petitioner and Petitioner fear ed the victim. Mr. Ballin argued that the-6-

victim’s threats on the day before the shooting constituted adequate pro v ocati on, su pport ing a conviction for voluntary ma nslaughter.
The pos t-conviction court found that the trial counsel’s decision not to offer pro of o f diminishedcapacity

was a matter of trialstrategy

. The cour t accre dited the

testimony

of Mr. B allin that Dr. Nichols’ testimony at trial would have been harmful to Petitioner.
Ineffective Assistance of Counsel
For a petitioner to successfully overturn a conviction based on ineffective assistance of counsel, the petitioner must first establish that the services rendered or the advice given was below “the range

of compe

tence de manded of

attorne ys i n crim inal cases.” Baxter v . Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, the petitioner mus t show that the deficiencies “actually had an adverse effect on the defense.” Strickland v. Washington , 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Should the petitioner fail to establish either factor, the petitioner is not entitled to relief . Our supr

eme cour t describ ed the sta

ndard of review a s follows:
Becau se a petitioner must establis h both prongs of the test, a failure to prove either de fi ci en cy o r prejudice provides a sufficient basis to deny relief on the ineffective assistance claim. Indee d, a court need not

address the components in any particular

order or even address both if the defendant makes a n insufficient showing of one component.
Goad v. State , 938 S.W.2d 363, 370 (Tenn. 1996) (citi ng Strickland , 466 U.S. at 697, 104 S. Ct. at 2069).
The petitioner is not entitled to the benefit of hindsigh t; the peti tioner ma y no t second- guess a reasona bly based tr ial strat egy ; and the p etitioner

may not critic iz e a sound, b ut unsucc essful, tactical decision made after adequate pre paration for

the case. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Cr im. App. 19 94); see Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
The issues of

deficie nt performance by counsel and possible pre judice to the defense are mixed questions of law and fact. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). We review the trial court’s findings of

fact underlying

a claim of ineffective assistance of counse l under a de novo stand ar d with a presumption that those findings are correct unless the e vidence preponderates otherwise. Fields v. State , 40 S .W.3 d 450, 458 (T enn. 2 001). The po st-co nvict ion co urt's conclusions of law, howe ver, are reviewed under a de novo standard with no presumption of correctness. Id . at 457. Diminished Capacity
Petitioner argues that trial counsel was ineffe ctive for failing to present expert testimony of diminishedca pa ci ty. Diminishe d capac ity “ is a rule of evidence which allows the introduction of-7-

evidence to nega

te the existence of specific intent when a defendant is cha rged with a

specific intent crime.” State v. Phipps , 883 S.W.2d 138, 143 ( Ten n. Crim. App. 1994). While evidence of a defen dant’s diminished capacity does not c onstitute a defense capable of excusing or de feating a criminal charge, such evidence is relevant to determining the defenda nt’s mens rea
. State

v. Grose , 982 S.W.2d 349, 35 3 (Tenn. Crim . App. 1997) (citi ng Phipps , 883 S.W.2d at 148). A defendant must introduce evidence, ty

pically expert testimony , to establish that the defendant at the time of the crime was not capable of forming the r equisite intent of the crime charged.
At the time of the offe nse, the premedita

ted first degre e murder

statute r equired that the Sta

te prove that the k

illing wa s “intenti onal, pre meditate d and deliberate.” Tenn. Code Ann. § 39-13- 202(a)(1) (1991). Aperson acts intentionally whe n “the person’s conscious objectiv e or desi re [is] to engage in the conduct or c ause the result.” Tenn. Code Ann. § 39-11-302(a). A pr emeditated

act is one “done after the exercise of reflection and judgment.” Te nn. Code Ann. § 39-13-202(d). Premeditationnecessitates “a previously formed design or intent to kill,” State v. W est , 844 S.W.2d 144, 147 (Tenn. 1992) (citations omitted), and “an act done afte r t he exercise of reflection and judgment . . . [ meani ng] that the intent to kill must have been formed prior to the act itself.” Tenn. Code Ann. § 39-13-202(d). It also requir es that the accused be “sufficiently free from excitement and passion as to be capable of premeditation.” Id . Deliberation required a finding that the def endant acted with a “ coo l purpose” and not from “passion or provocation.” Tenn. Code Ann. § 39- 13- 201(b)(1) (1991).
The elements of premeditation and deliberation are questions of fact to be determined by the ju ry. State v. Bland , 9 58 S. W. 2d 65 1, 66 0 ( Te nn . 1 99 7) . A lt ho ug h t he ju ry m ay not eng age i n speculation, it may

infer premeditation from the manner and circumstances of the killing. Id . Our supreme court delineated several circumstance s that may be indicative of premeditation, including the use of a d

eadly weapon upon an unarmed victim, the fact that the k illing wa s particu

larly cruel, declarations of the intent to kill the victim by thedefenda nt, the making of preparations before the killing for the p

urpose of concea ling the crime, a nd calmne ss immediately after the killing. See id

. We conclude that Petitioner has not established that the proof preponderate s against the trial court’s finding

that Petiti oner’s trial co un se l e xe rc is ed so un d a nd re as on ab ly b as ed tr ia l s tr at eg y. The proof supports the conclusion that trial counsel’s decision not to call Dr. Nichols to testify was made follo wi ng adequate prepara tion. The proof shows that counsel requested a psy chological evaluation

of Petitioner

from Dr. Nichols, trial counsel met with Dr. Nichols prior to trial, and trial counsel caref

ully weighe d the bene fits vers us the har m of pres enting Dr. Nicho ls’ testimony t o the ju ry. Moreover, although Dr. Nichols stated that Defendant’s judgment and ability to function was impaired, he did not conclude that Petitioner was incapable of forming the requisite intent. Furthermore, we conclude that Petitioner has not established that he was prejudiced by the al le ge d d ef

ic ie nc y. There was sufficient proof at trial of premeditation and deliberation. One da y prior to the killing, Petitioner

told a co- worker

that he in tended to shoot the victim. There was proof that Petitioner

waited f or the victim to arr

ive at wor k before shooting him. Petitioner

used a de adly-8-

weapon against an unarmed victim. Petitioner als o boas ted ab out t he kil ling af ter th e shoo ting. Petitioner is not entitled to relief on this issue.
CONCLUSION
Peti tioner has not established that counsel’s performance at trial wa s deficient or that trial counsel’s decision not to present expert testimony of Petitioner’s men

tal state prejudiced Petitioner. The judgment of the post-conviction court is affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE