### FILED June 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JANUA RY 1999 SESSION

MICHAEL LEE MCCORMICK, ) ) Appellee , ) C.C.A. No. 03C01-9802-CR-00052 ) vs . ) Hamilton County ) STATE OF TENN ESSEE, ) Honorable John K. B yers, ) Sitting by Designation Appellant

. ) ) (Post-Conviction - First Degree ) Murde r - De ath P enal ty) ) FOR THE APPEL LEE: FOR THE APPELLANT: T. MAXFIELD BAHNER JOHN KNOX WALKUP 1000 Tallan Building Attorney General & Reporter Two Union Square Chattanooga, TN 37402 MICHAEL E. MOORE Solicitor General MICHAEL E. R ICHARDSON 202 Market Court DON UNGURAIT (at hearing) Chattanooga, TN 37402 Deputy Attorney General 450 James Robertson Park way Nashville, TN 37243 KENNETH W. RUCKER (on appeal) Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 WILLIAM H. COX, III District Attor

ney General JOSEPH A. REHYANSKI Asst. District Attor

ney General 600 Market Street - Co urt Bldg. Chattanooga, TN 37402

OPINION FILED: _____________ AFFIRMED
JAMES CURWOOD

WITT, JR., JUDGE2 

### OPINION

The State of Tennessee appeals the Hamilton Count y Criminal Court’ s grant of po st-conviction reli ef to the petitioner, Michael Lee McCormick. In 1987, a Hamilton County jury convicted the petitioner of the 1985 first degree murder of Donna Jean Nichols. The jury imposed the death penalty based up on i ts finding that the murder was committed for the purpose of avoiding, i nterfering with or preventing a lawful arrest or prosecution of the defendant. See Tenn. Code Ann. §39-2-203(I)(6) (1982) (repealed 1989). The conviction and sentence w ere affirmed bythe Tennessee Supre me Court in State v. McCormick , 778 S.W.2d 48 (Tenn. 1989). On May 20, 1 990, the petitioner filed the petiti on for post-conviction r elief presently u nder review. After an evidentiary hearing, the post-conviction court ordered a new trial based upon its findings that the petitione r had received ineffe ctive assistance of counsel in both the guilt and penalty phases of the trial. On appeal, the state raises the following issues:

1. Whether the lower court erred in find ing that tria l counsel inadequately investigated potential witnesses and that any such inadequacy pr ejudiced the defendant. 2. Whether the lower cour t erred in finding that the defendant received ineffective ass istance of cou nsel at the sentencing phase of the trial and that any su ch ine ffecti ve assistance prejudiced the petitioner. 3. Whether s om e of the claims of the petit ioner have been waived. After oral argument of the issues, review of the parties’ briefs and the law , and review of the record,we affirm the action of the post-c onviction court.

I. Facts of the Murder Case
.

The facts of the murder case are set forth in the following excerpt from the Supreme Court’s direct- appeal opinion: At about 2:00 a.m. Thursday, Februar y 14, 1985, the body of the victim was discovered i n a parking area along B rainerd Road in Chattanoog a.3 . . . Two head wounds were apparent, as well as one on the hand.

. . . An autopsy later that morning showed that

Jeanie Nichols had been shot at very close range.

. . . At 4:46 a.m. the [victim’s] car was found in an auto service parking lot that was frequently used by customers of the adjacent Beach Club, a singles’ night spot.

. . . Faintsmudges of blood stain ed the covers of the front seats, and a thickfilm of blood cove red the frame and exterior panel below the passenger door.

. . . The victim was at h o me until approximately 9:30 on the night of the 13th. At 9:45 she met a man she dated frequently, [Dewayne H ines,] an d they had drinks at Merv’s

restaurant. When they separatedat 11:30, Jeanie Nichols was driving the car later found near the Beach Club. She announced she was going to

“hit” Brainerd Road, by which her

companion understood she planned to visit v

arious night spots in the area.

. . . Defendant was a friend of Nichols’ younger brother H ap, with whom she shared an apartment in their grandmother’s home.

. . . The two men regularly cons umed drugs together and had committed a burglary at [a Geor

gia] college and stolen electr onic equipment. When the victim completed her pharmacy degree and moved to Chattanooga in 1984, she discovered these activities and McCormick’s identity. She insisted that the stolen equipment be moved from the house and that her brother end his association with Defendant. Hap Nichols related all this to Defendant at the time, as McCormick later ad mitt ed , and he removed the equipment. Accordi ng to family members, Jeanie was very proud of her car eer, had worked her way through s chool, and had undert aken to straighten out her brother’s life.

. . . It was also learned that Defendant had visited at the home of a former girlfriend, near

his parents’ home, from 9: 30 to 11:10 p.m

. on February 13. H e was driving his employer’s red truck, and he left saying it was t oo earl y to go home. This witness r eported that Defendant was intoxica ted and behaved in a bizarre fashion and he spent some time removing something he had hidden under her house. At this point McCormick was questioned by Detective Dudley of the Chattanooga Police Department

.

. . . He said he had met a childhood friend at Bennigan’s on the evening of February 13. They had a few drinks and left in separate vehicl es for the Brainerd Beach Club. He had left the Beach Club at 11:00 or 11:30 p.m. and gone straight to his pa rents’ home, where he li ved.

. . . Defendant consented to thegathering of samples of hair, saliva, etc. and to a search of his house and vehicles. With one exception, nothing of interest was found. A hair collec ted from the interior of

the victim’s car

was determined to have features similar t o his, and could have c ome from the Defendant.

. . . Shortlyafter this interview and sear

ch, Defe ndant le

ft town and spent some time in Ar izona. He re turned, was convict ed of th e college b urglary, and served a sentence follow ed by parole.

. . . McCormickand the victim had been seen together. An employee of the Revco Drug Store,where Jeanie Nichols worked at the time of her death,4 [Do nna Lawson,] testified she and the victim had gone out together d urin g this time. She reported three disturbi ng encounters she witne ssed between Nichols and McCormick during the three weeks before the murd er. Twice he had come to the pharmacy counter with another man and engaged the victim in conversation. On Febr uary 7 he and another

man had approached her at a bar, and they talked

privately for a long

time. Each of these conversations left the normally talkativ e and cheerful victim in a d epressed mood. Almost two yea rs after the mu rder, January 21, 1987, Chattan ooga Police arrang ed forDefendant to meet Eddie Cooper in a Georgia parole office. Cooper w as an underco ver offi cer posin g as a parol ee. The t wo moved into a motel apartment together and over

the next four

weeks Cooper gained De f endant’s confidence and included him in several purported transfers of stolen cars. Earlyon, Defendant asked if they ne eded to go armed in these transactions

and said he ha d a .45 calibre handgun. He conversed about mu rderers he had met in prison and professed to know about contract murder, but he made no mention of the Nichols k illing. Cooper then hi nted he had been offered twenty thousand dollars to perform a murder in Knoxville. On February 9, Detectiv e Dudley staged the arr est of a cus tomer in a bar in the presence of the Defend ant and Co oper, and he spoke to Defendant. Defend a nt was visibly shaken. Cooper demanded to know whether Defendant was under suspicion, in lig ht of their mutual illegal activities. Defendant explained about the burglary conviction andthe murder investigation. Over the ne xt few days Cooper pursued the subject, ostensibly concerned about their safety and Defendant’s trustworthi ness. When asked why anyone would kill a woman, Defendant replied, “F or instance, a woman knew more about you than you w anted them to know, possibly enough that would put you in the pen itentiary. . . The re’s some things you just don’t tell on yourself.” He claimed he had refused one thousand do llars to kill Jeanie Nichols, but he knew

the murderer. According to him the motive related to the drug inventory at

her place of employment and she “was going to

spill her guts.” Defendant also said Nichols had been shot three times with a 9 mm or .45 calibre weapon, once in the temple, once behind the ear, and once in the hand. He stated the gun “w asn’t two inches from her h ead.” Later he said he did not know w hy she had been killed.

. . . On February17, 1987, the Defendant unexpectedly began to confess to Nichols’ murder. Cooper managed to record the conversation, which was played for the jury along w ith several previous c onversations. Defendant said that he had killed Nichol s but not for $1,000.00. Supposedly, she was “hold ing out” so me drugs. H e claimed tha t he had kill ed her “ove r some money” and said he had been paid $3,500.00 but did not name who had paid him. He and Nichols had met at the Beach Club and left togethe r. He had then killed her, dumped her body in Eastgate, parked her car at an automatic transmission business near the Beach Club, and drive n away in his va n.

. . . Defendant’s parents testified that . . . he h ad comehome that evening between 11:00 and 11:30 p.m. Shortly th ereafter he went out again for a few minutes but did not take a vehicl e. H e returned around 12:10 a.m. and remained with his mot he r in the living r oom from 1:00 to 2:00 a.m., and he retired at 3:00 a.m. At the s entencing phase the State presented no further pr oof. In mitigation, Defendant’s father described his son’s seri ous drinki ng problem, which had begun at age 14 or 15. It became worse, an d was compl icated bymarijuana use, after his disc harge from the A ir Force in 1974. He had twice entered treatment programs, but in 1984

when he returned home after his divorce, the drinki ng had become constant. Defendant’s alcoholism was corroborated by the trial testimony of various acquaintances . In addition, counsel argued Defendant had no significant criminal history. T.C.A. 39-2-5 203(j)(1), (8).
McCormick , 778 S.W.2d at 49-52.

On this evide nce, McCo rmick wa s convi cted of first degree murder and sentenced to death.

II. Facts of the Post-Conviction Hearing .

a. At the post-conviction hearing, Rodney Strong, one of the petitioner’s trial attorneys, testified that he had practiced law since 1978 and had participated in several murder trial s and four or five capital c ases by thetime of the petitioner’s trial. Strong and his co-couns el, Paul Bergmann, investigated the case themselves byobtaining personal history from the defendant and by interview ing a number of witnes ses. They did not petition the court for s tate funds to compensate an investigator

or for expert services. Counsel determined that there was no need for expert psychological test imony after be coming acquai nted with the petitioner and discussing the petitioner’s case w ith Ken Stallings, a mental health counselor w ho had counseled the defendant for a substance abu se problem.

Counsel’s bill for compensation reflected that Strong spent 22.8 hours investigating

the case. Counsel filed a motion to suppress the defendant’s pre-trial statements. Once the trial court overruled the motion to suppress the underc over tapes made by Cooper, the defense strat eg y was t o show that the defendant’s statemen ts to Cooper that he had killed the victim were manifestations of his propensity

to lie about his deeds and experiences. The defense relied upon the lackof physical evidence th at tied the defendant to the murder and upon the defendant’s mother’s testimony that the defendant was

home at the ti me the crime was committed.6 At trial, the defense tried to s how that thepetitioner had a reputation forlying and was known to claim falsely that he had fought in the war in Vietnam. The defense also relied upon the petitioner’s history of being dependent on alcohol to support the claim that the inculpative stat ements given to the undercov er agent
were made merely to curry favor with the agent, w ho was providing a temporary residence for the petitioner.

One of the state’s witnesses at the trial of the case, Donna Lawson, testified that prior to the night the victim was kil led, she had seen the victim and the petitioner

conversin g three tim es. Twice L awson saw th e two talking in the Revco store where Lawson and the v ictim worked, and the week before the shooting , she
saw them talking in a night club. In his post-convictio n he aring testimony, Str ong acknowledgedthat Lawso n had been a form e r client of his and that, based upon this representation, he knew s he had previously ple aded guilty to

felony bad check charges. At trial, counsel decl ined to use the prior ad mi ssion or convictions to impeach Lawson’s testimony

.

Strong testified that he tried to develop proof at trial t o suggest that a boyfri end of the victi m, David Sh ore, was a jealous ind ividual an d that at the time of her death, the victim w as dating another man, Dewayne Hines. The victim and Hines had been seen together at an establis hment called Merv’s on the night of February 13, 1985.

Counsel did not investigate the whereabouts of Deway ne Hines after he left Merv’s on February 13, nor did they investigate the whereabouts o f Dav id Shor e that night. Counsel did not talk to any of the employee s of the Brai ner d Beach Club nor check charge slips to ascertain identi ties of customers that were
served at the Brainerd Beach Club on the ni ght of February 13 or ear ly morning hours of February 14.7 The only physical evidence which the prosecution us ed in the trial was
a hair found in the victim’s automobile which containedproperties similar to a strand of the petitioner’s hair. The defense did not attempt to obtain independent analysis of the hair, nor

did it attempt to obtain independent analysis of the clothes w orn by the petitioner

on the night of February 1 3-14. The defense did not attempt to obt ain the victim’s fingernail scrapings once the prosecutor informed counsel that the tests
on the scrapings wer

e “negative.” Throug h the pre-trial statement of the petitioner’s that was taken by Officer Dud ley prior to the undercover operation, the trial evidence showed

that the defe ndant admit ted to drug and alcohol use and to variouscriminal convicti ons, including indecent ex posure. Defense counsel did not object to these portions of the statementbeing admitted into evid ence because they wished to demonstrate the petitioner’s problem with alcohol and that he h a d persisted in denying his involvement in the victim’s murder des pite the withering interrogative tacti cs of Dudley.

Defense counsel was aware prior to trial that Jeff Bow en, a security guard at the Brainerd Beach Club, saw a “ girl who looked l ike Nichols and was dressed like Nichols leav e with an unidenti fied male.” Counsel elected not to pursue this inf ormation and did not call Bow en to testify at trial. Counsel had no recollection of a composite drawing of the man who B owen saw leave the club with the victim on the night

of February 13-14, althoug h Bowen’s statement and a copy of the drawing apparently were given to defens e counse l during di scovery. Strong opined, upon seeing thecomposite drawing for the first time at the post-c onviction hearing, that had the figure i n the drawi ng been give n a beard , it would h ave resembled the petitioner’s likeness. Strong recounted his belief t hat had the jury concluded the man meeting Bowen’s description w as the petitioner, thenBowen’s testimony

would be the only trial testim ony to put the petitioner in the victim’s presence on the night of her death.

The guilt phase of the trial c oncluded with a verdi ct o f gui lty of first8

degree murder

at approximately 5:00 p. m. on Saturday afternoon, and the trial court proceeded with the sentencing phase of the trial on Saturday evening. The defense relied upon the trial testimony of Ralph Lindsay , which supported the fact that the petitioner

had an alcohol problem, and upon the testimony of the petitioner’s father. The petitioner did not testify in either phase of

the trial. No expert

witnesses

were used in either phase of the trial

.

Paul Bergmann, Strong’s co-counsel, did not recall much of counsel’s trial preparation activities. He testified that counsel either talked or attempted to talk to all of the witnesses whose names had been given them by the defendant and his family and all of the witnesses named on the state’s witness lists. Be rgmann spent
a total of 42.1 hours investi gating the case and interviewing witnesses. He did not recall that either himself or Strong had interview

ed Jeff Bowen. Specifically, he did not recall interview

ing Jeff Bowen, reading Bowen’ s statementgiven to the police,
or previously seeing

the composite drawing made from Bowen’s description of the
man who allegedly accompanied the vict im as she left the Brainerd Beach Club. Bergmann acknowledged that the peti ti oner ha d a full beard at the time of the homicide, whereas the figure in the Bowen drawing was clean-shaven

except for a mustache.
Bergmann acknowledg ed that the “pathology” of ly ing might be an issue that required speciali zed knowledge within Tennessee Rules of Evidence 702 and 703. b.

Jeff Bowen testified at the post-conviction hearing that the police asked him to view the v ictim’s body at the ho

sp ital for purposes of identificati on. Based upon her distinctive c lothing, he identified her as the woman he saw

leaving the Brainerd Beach Club several hours earli er in the company of a man who w as immac ula telydressed in coat and tie. Bowen described the man as being neatly groomed, clean-shaven except f orpossibly a mustache, “one of those guys that1 Upon the petition er request ing that Cu rtis be all owed to su mmarize

his interviews, the state announced, “My agreement with Mr. Richardson . . . is I have no objection to Mr. Curtis, subject to [the c ourt’s] approval, summari zing and presenting what is

obviously blatant hear say in order to expedi

te matters.” 9 looks like his shirt w

as starched and the whole shot, so I mean he w as sharp.” Bowen did not s pecify

the time when the couple departed.He had no recollection of being contacted by defense coun sel. He further te sti fied that the man he saw with the victim did not rese mble the photograph of the petitioner which was taken a few days after the homicide.

c.

At the post-conviction heari ng, the petitioner called William L. Curtis,
a private investigator who had formerly served as an FBI special agent. Curtis conducted an investigation of the homi cide as part of thepetitioner’s preparation for his post-convictionhearing, and in the course of the investigation, Curtis interv iewed
a number of persons. With the assent of the cou rt a nd the state, 1 Curtis was allowed to testify what var ious personshad said in their interviews w ith him. Many of thes e persons w ere subpoenaed and available to testify, and the testimony of Curtis was apparently used by stipulation as a device for abbre viating the hearin g. In this vein, Curtis summarized several i nte rview s, chief among which are the following: 1. Clarence Parton was mana g er of the Revco in Chattanooga where the victim w orked as a pharmacist in 1985. Lawso n was a lso an employee of this store, and Parton said that Lawson’s credi bilit y was suspect and that she was ultimately fired for taking merchandise from the store. 2. Barbara Tallent worked at the Rev co and indicated th at she had never seen the petiti oner in the store talking t o the victim, as Lawson ha d testified, but she had seenDewayne Hines in the sto re talkin g wi th the vic tim. Tallent did not believe that Lawson w

as a credible indivi dual.10 3. Dick Dangler

was the Revco security manager w ho said that the victim’s key s to the store were nev er recovered. 4. Susie Wilson was a bartender at the Brainerd Beach Club who recognized the photograph of Dewayne Hines a n d said that he was

a regular at the club i n February of 1985. She did not recognize the pho tograph of the defendant. 5. Jane Mc Donald was a customer at the Brainerd Beach Club on the night of February 13, 1 985 and saw the victim coming into the club accompanied by two men. She did not recognize t he two men and did not connect either of them to the photograph of the petitioner

. 6. Dana Soko hl, an acquaintance of the victim’s, examined a composite picture that had be en drawn to the specifications

of a woman named Joyce Mahn. The c omposite picture was allegedly meant to depict a man that Mahnsaw in the B rainerd Beach Club parking lot on the night of February 13. Sokohl told Curtis that t he man in the picture looked like David Shore, the former fiancé of the victim.

None of the potential witness e s identified above had been inter viewed by defense counsel prior to the trial.

d.

Doctor Gillian Blair, a cl inical psychologi st, testified at t he postconviction hearing that the petitioner had psychiatric hospital i zations prior to the victim’s murder and in the past had been diagnosed with ps ychosis. He had a

long historyof chronic dependence on alcohol w hich probably contribut

ed to the previous finding of psychosis. The petitioner had a chronic need to bolster his self image by telling fantastic lies about himself and per sisting in these lies

even in the face of hard evidence to the contrary. Doctor Blair opined that

a previous diagnosis

of post-11

traumatic stress disorder w as incorrect and without foundation. After

administering
a battery of

tests to the petitioner, she determined that his full scale IQ was in the high average range. He had no organic damage and was neither psy chotic nor sociopathic. He had no manic depressive disor der, was not delusional nor paranoid, but he may have suffered from a bipolar disorder or cy clo thymia. She found that he was hypomanic and that he exhibited extreme anx iety and agitation, pressured speech, distractibility,and flight of ideas. The petitioner had a nega tive view of himself and pursued an extremely s trong need for acceptance and approval from others. She opined that his propensity to lie stemmed from this need but that the trait itself did not indic ate a disorder

and did not require speciali zed expertise to understand. Blair opined that the defendant coul d be vulnerable to coerci on or manipulation in making false s tatements.

e. D ebra Boggs, the petition er’s ex-wif e, testif ied that he wa s a grea t husband and father when he was not dr inking. When he was in pe riods of sobriety, he was always hel ping other people, serving on the volunteer fire department, and volunteeringforthe Boy Scouts. He had rescued a drowning g irl from a swimming pool and revived a heart at tack victim by adm inisteri ng cardio- pulmonary
res uscitation. She admitted that the petitioner was a different ind ividual when h e was drinking and that he had once threatened her life and had assaulte d her on a few occasions. f.

John Kilborn, a forensic scientist with a specialty in the analysis of hair samples, testified that the FBI special ist testified inaccurately at the trial when he said that properties of the petitioner’s hair sample were similar to “ unique” properties of a hair found in the victim’s car. Kilborn testified that hair could not serve as

the basis of posi tive id entification as in the case of DNA evidence or fingerpri nts and that the hair segment found in the v ictim’s vehicle, although it had properties simil ar to the petitioner’s hair sample, could not serve as a reli ab le basis for comparison12

because it was not a full hai r strand.

g.

Several witnesses

appeared at the po

st-conv iction hearing to testi fy that the pe titioner had an alcohol problem and that he w as never known to be violent.

h.

The petitioner

testified at the hearing that he had submitted a long list of names of possible witnesses to counsel, but only his parents and Ralph Lindsay testified for the defense at trial. He compl ained that prior to trial he had difficulty contacting his attorneys from the jail. He did not know that he could have petitioned forstate funds for ex pert and investigator assistance until he began his postconviction proceeding. He only met with Ken Stallings one time. He was not aware of Jeff Bowen prior to trial. He ack nowledged that he elected not to testify a t the trial. He maintained that he did not know the trial would consist of two phases, nor that he had a right to testify a t the penalty phase even if he had not testified during the guilt phase.

I.

Charles Fels, a Knoxville lawyer, testified asan expert on the ra nge of competence for counsel under the Si xth Amendment. Generally,he opined that counsel in a capita l case is obliged to i nterview all of the s tate’s witnesses, to investigate

the defendant’s background, education, and medical, psychologi cal and militaryhistory, and to examine scientific reports and independently investigate the accuracyof expert findings. He found the total hours reported for int erv iewing
w itnesses to be very minimal. He highlighted the failur e of counsel to use the
com posite picture that was based upon Bowen’s description and the failu re t o uncov er Jane McDonald’s knowledge that the victim ent ered the Brainard Be ac h13

Club in the presence of two men, neither of whom w ere the petitioner. Fels opined that the hair analysis should have been attacked alo ng th e same lines as John Kilborn’s post-conviction testimony. Further, he opined that trial counsel was remiss in not seeking independent forensic analysis of

the victim’s fingerna il scrapings and the defendant’s clothing. Fels o pi ned that the number of pre-trial motions were minimal and that the issues raised in the moti on for new trial wer e limited and too general. He was particular ly critical of counsel ’s failure to file m o tions in limine in order to redact from petitioner’s variou s pre-trial statements a n umber of damaging revelations

that were not

probative of the issues on trial. He cited counsel’s failure to object to various other components of evidence and to comments made by

the prosecutor

during the closing arguments. Finally, he opined that trial counsel’s performance during the penalty phase was deficient because psy chological evidence had not been adequately explored.
j. At the post -convi ction hearing, the state called Dr. John Spencer, a clinical and forensic psycholog ist, who testified that although the petitioner was antisocial, he was notpsychotic, had no orga nic brain damage, and is i ntelligent. Doctor Spencer opined there was n o basis for referring the case to an expert in the field of false c

onfessio ns and th at a lay witnes s’ anecd otal inf

o rm ation about the petitioner’s lying was more significant evidence than could be offered by an expert witness. “Pathological liar ” is not a diagnostic category but merely a description of people wh o are oft en antiso cial and wh o lie freq uently.

III. Post-conviction

Court’s Findings. Based upon the evidence, much of which is summariz

ed above, the post-conviction court sustained the petition in the following particulars:

1. Counsel’s representati on was prejudicially deficient in failing to develop and use the inf orma tion sup plied by Jeff Bowen, including the composite dr awing. The post-conv

iction court found that the Bowen evidence “would have been highly14 be n eficial to the defense theory,” especially “where the case contained little to no

physical evidence a

gainst the defendant.” 2. Counsel’s investigation was prejudicially deficient in the failure to interview other employ ees from the Brainard Beac h Club and other witnesses “w ho may have seen the victim on the night of themurder with someone other than the defendant.” 3. Counsel was deficient in failing to developmitigation evidence from lay witnesses f or use at the sen tencing hearing. 4. Although st anding alone, the failure to use psychologicalevidence to explain the defendant’s pro p ensity to lie in the guilt phase wo uld have been innocuous, the postcon victio n court found that “in combination w ith all the other deficiencie s in this case such an err or has much greater weight” and that “the absence

of apsychological ex

pert at the sentenci ng ph ase is a more obvious defici ency because a p sychologicalexpert cou ld have he lped to m ore full y explai n the defendant’s tendencies to lie and hi s propensity to be influenced by alcohol and/or drugs.” 5. Counsel was deficient i n failing to i mp each the testimony

of Donna Lawson, the only trial witness to place the petitioner in the victim’s company at any time. 6. Counsel failed to “focus the jury ’s attention on several inconsistencies between the defendant’s s t atements and the facts of the state’s case.” Particularly glaring was the failure to emphasi ze the amount of time that passed between the victim’s discov

ery of the petitioner’s ac t of burglary and her murder, because this factor served as t he sole basis for imposin g the deat h penalt y. 7. Counsel was

deficient in failing to objec t to improper2 In this appeal by the state,our review is l imited to the propriety o f the post-conviction court

’s findings sustaining

some of the petitioner’s clai ms. Prior to the evidentiary hear

ing, the court dismissed other claims as being w aived or previously determin ed, and after the hearing, the cour t denied the following ineffective assistance clai ms in its “Findings of Fact and Conclusions of Law” : (1) choice of defense strategy; (2) failure to request adequate indep endent analysis of the hair samples, the fingernai l scrapings, a finger print found on a check in the victim’s pocket, bloody tire tracks at the crime scene, and the defendant ’s clothes; (3) failure to use a jury selection ex

pert; (4) the lack of pretr ial accessibility of counsel to the petitioner; (5) failure to file more pretrial mo tions; (6) failure to seek redacti on of the petitioner’s pretri al statements; (7) inadequat e advice of counsel concernin g the petitioner’s ri ght to testify at trial ; (8) improper or inadequate voir dire

of prospective jurors;(9) failure to object to i mproper prosecutorial commentary;(10) failure to object to i mproper jury instruc tions; (11) general inadequacy in objecting to trial court errors or evidence presented at trial; (12) failure to make an opening statement; and (13) inadequate appellate preparation and briefing. The pos t-conviction court al so denied, after the hearing, a claim of prosecutorial misconduct that the state h ad failed to disclose exculpatory evi dence and had “failed to reveal all promises, deals, ag reements. . . made by the state with any witness or potential witness.” 15 comments by the prosecu tion du ring the trial and duri ng argument, which failures “contr ibute to the overall finding that the defendant di d not receive the effective as sistance of counsel and that this case was prejud iced by counsel ’s performance.” 2

IV. Standards for Establishing and Reviewing Ineffective Assistance of Counsel . Al l of the po st-convic tion cour t’s bases for grant ing post-c onvi ctio n relief were instances of i neffective assistance of counsel.

When a defendant seeks relief on the basis of ine ffective assistance of counsel, he must firs t establish that the serv ices rendered or the advi ce given
was below “the range of competenc e demande d of attorneys in criminal cases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies“actually had an adver se e ffe ct on the defense.” Stricklan d v. Washington , 466 U.S. 668, 693, 104 S. Ct. 2052, 2 067 (1984). T here must be a reasonable probabilit y that, but for counsel’s erro r, the result of the proceeding would have been different. Id . at 694, 104 S. Ct. at 2068; see Best v. State , 70816

S.W.2d 421, 422 (Tenn. Crim. App. 1985). Should the defendant fail to establish either factor, he is no

t entitl ed to rel ief.

The s crut iny of counsel’s performance mus t be “highly deferential ,” and the reviewing

court mu st refrain from concluding “ that a particular act or omission of counsel was unreasonable” merely because the strategy employ ed was unsuccessful. Strickland , 466 U.S. at 689, 104 S. Ct. at 2065. “A fair assessment,” the United States Supreme Court ha s said, entails making ev ery effort to “eliminate the distorting effects of hindsig ht” and eva luating the “conduct from counsel’s perspect ive at the time.” Id ., 104 S. Ct. at 2065. The court promulgated a “strong presumption that co unsel’s conduct falls within the wide range of reasonable professional assistance. . . .” Id ., 104 S. Ct. at 2065. The court add ed:

[S]trategic choices made after thorough investiga

tion of law and facts relevant to plausibl e options are virtuall y unchallengeable; and strategic choices made after less than complete inves tigation are reasonable precisely to the extent that reasonable professiona l judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investi gation unneces sary. In any ineffectiveness case,a particular decision n ot to investigate must be directly assessed for reasonablenes s in all the circumstances , applying a heavy measure of deference to counsel’s judgments. Id

. at 690-6 91, 104 S. Ct. at 2066. The court acknowledged that “inquiry in t o counsel’s conversations with the defendant may becritical to a proper a ssessment of counsel’s investigation decisions . . . .” Id . at 691, 104 S. Ct. at 2066.

With respect to the prejudice pr ong of ineffecti ve as sistance of counsel, a showing that “errors had some conceivable effect on the outc ome of the proc eeding” is insufficient. Id . at 693, 104 S. Ct. at 2067. Rath er, the defendant must show there is a “rea sonable probability

that, but for counsel’s unprofessi onal errors, the result of the proceeding would have been different. A reas onable probability

is a probability sufficient t o undermine confidence in the outcome.” Id

. at 694, 104 S. Ct. at 2068. In assessing the claim of prejudice, the “court should presume, absent challen ge to the judgment on grounds of evidentia ry insuff iciency,17

that the judge or jury acted acco r ding to law.” Id ., 104 S. Ct. at 2068. The reviewing

court must consider

the “totality of the evidence before the judge or jury” and should take into acco unt the relative strength or weakness of the evidence supporting the verdic

t or conclusion. Id . at 695, 104 S. Ct. at 2069.

In death penalty cases, the sent en cer ma y not be precluded from consideri ng any asp ect of a defendant’s character or record as a basis fo r a sentence less than death. Lockett v. Ohio , 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-65 (1978) (plurality opinion) ; see also Johnson v. Texas , 509 U.S. 350, 361, 113 S. Ct. 2658 , 2 666 (1993). The United States Supr eme Court has held that mitigating evidence is relev ant to sentencing hearings and should be heard. See California v. Brown , 479 U.S. 538, 541, 107 S. Ct. 837, 839 (1987); Ed dings v. Oklahoma , 455 U.S. 104, 113-15, 102 S. Ct. 869, 876-77 (1982 ).

There is no legal requir ement and no established practic e that the accused must offer evidence at the penalty phase of a capital trial. State v. Melson , 772 S.W.2d 417, 421 (Te nn. 1989). In fact, in many death penalty cases, counsel has properlyseen fit not to offer any evidenc e at the penalty phase. Melson , 772 S.W.2d at 421.

“A strategy of silence may be ad opted only after a reasonable investigationfor mitigation evidence or a reasonable decision that an investigation would be fr uitless. ” Tafero v. Wainwright , 796 F.2d 1314, 1320 (11th Cir. 1986). C ourts have held counsel’s repr esentation beneath professionally competent standards when counsel did not conduc t enough investigati on to f ormulate an “accurate life profile” of a defendant. Jackson v. Herring , 42 F.3d 1350, 1367 (11th Cir.), cert
. dismissed sub nom Jackson v. Jones ,---U.S.---, 116 S. Ct. 38 (1995). It is impossible that “a ‘strategic’ decisi on can be reasonable when the attor ney has failed to investigate his options and make a reasonable choice between them. ” Id

. (quoting Horton v. Zant , 941 F.2d 1449, 1462 (11th Cir. 1991)).18 The extent of investigati on required depends criti cally upon information supplied by the defendant. Burger v . Kemp , 483 U.S. 776, 795, 107 S. Ct. 3114, 3126 (1987); see also Whitmore v. Lockhart , 8 F.3d 614, 621 (8th Cir

. 1993). “[W]hen the f acts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminis hed or eliminated altogether. And when a defend ant has gi ven counsel reason to believe that pursuing certain investigations

would be fruitless or even harmful, counsel’s failure to pursue those investigations

may not later be challenged as unreasonable.” Strickland , 466 U.S. at 691, 104 S. Ct. at 2066.

The petitioner’s burden of proof in all po st-conviction cases filed before May 10, 1995, is by a preponderance of the ev idence. Clenny v. State , 576 S.W.2d 12 (Tenn. Crim. App. 1978). A trial court’s findings of fact following a postconviction hearing ha ve the weight of a jury verdict. Bratton v. State , 477 S.W.2d 754, 756 (Tenn. Cr

im. App. 197 1). On app eal, tho se findi ngs are con clusive unless the evidence preponderates against the judgment. Butler v. State , 789 S.W.2d 898, 900 (Tenn. 1990).

V. Appellant’s Issues .

Now, we apply th e above legal princi ples to the issues the state has presented.

a. Ineffective A ssistance - Guilt Phase The state asserts that the lower court erred in finding in effec tive assistance of counsel through inadequate investigation and prepa ration at trial. Within this rubric, the state argues that the post-conviction court erroneously concluded that (1) trial counsel had failed to interview

Jeff Bowen, (2) the petitioner had shown prejudice from counsel’s fail ure to interview other c ustomers or staff of3 In its oral findings of fact, the post-conviction cour

t emphasized its reliance upon the live t estimony of Bowen.

19 the Brainerd Beach Club, and ( 3) trial counsel failed to fully develop its theor y of defense. The state asserts t h at counsel interview ed Bowen and made a tactical decision not to call him as a witness and that the rec ord reflects no prejudice to the petitioner

because of the failure to discover J ane McDonald’s knowle dge of the evening of February 13, 1985. The state po sits that counsel effectivel y presented its theory by using a number of lay witnesses to establish an alibi and to attack the validity of the underc over statement s by showing t he pet itioner’s dependence on alcohol and his propensity to lie and tell grandios e tales. It argues that th e petitioner’s post-con viction exp ert, Dr. Bl air, fail ed to est ablish an y p athol ogy or personality

problems beyond t hose established by lay w itnesses who testified at trial.
Although Strong assumed that Bergmann int ervie wed Bowen, B ergm ann did not recall speaking with Bowen. Clear

ly, Strong did not i nterview Bowen, and Bowen hi mself did not r ecall eithe r defense atto rney conta cting him. We find that a factual basis existed to support a conclusion that neither lawyer talked to Bowen. Regardless, the cru xof the court’s concern about counsel’s treatmentof Bowen was not so m uch whether they had inter viewed him, but whether they had properly r

eacted to Bowen’s description , via the composite drawing, of the m an Bowen s aw leavi ng the club w ith the victim. Strong , who viewed the composite drawing for the first time while testifying at the post-conviction hearing, thought the likeness resembled the petitioner, but Bowen testified that the
man he saw did not resem ble the Februar y 1985 photogr aph of the petitioner. Bergmann admitted that, at the time of the murde r, the petitioner had a full beard. Both Strong and Bergmann testified that they had not seen the drawing prior tothe post-convictionhearing, but the post-conv iction court found that the state h ad furnished both Bowen’s statement and a c opy of the composite drawing to counsel. Based upon the testimo ny i t heard, 3 the court found counsel was r emiss in not developing “this information [that]would have been highl y beneficial to the

defense20

theory.” Given the “fact” nature of the matter, this court must defer to the finding of the post-conviction cour t, just as we woul d have done had the petitioner no t prevailed in the court below. In other wor ds, the evidence does not preponderate against the court’s findings.

On the issue of whether c ounsel was ineffective in not investigating the February 13, 1985 customer s and staff of the Brainerd Beach Club, the record supports the trial court’s conclusion that counsel’s perfor mance was deficient. However, the record demonstrates no preju dice to the petitioner with the exception of (1) the failure to ferret out the information of Jane McDona ld that the victim came into the club with two men,neither of whom were the petitioner, and (2) the failure to obtain readily available information for use in impeaching the testimony of Donna Lawson. Each of these deficiencies in repres entation had prejudicial impact. Part of the def ense the ory was that at least t wo other men were interested in the victim and at least one of them may have been jealous. Donna Lawson was a key witness in that she provided the only testimony that the pe tition er and the victim had conversations prior to February 13.

We agree with the tri al court’s finding that c ounsel’s decision not to seek expert psychologi cal proof to use during the g uilt phase tobolster petitioner’s claim that his confession was false was deficient representation under the facts of the case. The defendant’s med ical record reflected earlier findings of psychosis, and this fact alone warranted further investigation beyond the conferen ce with Ken Stallings. However, we disagree that the record reflects prejudice as a result of the failure to purs ue such p roof.

Even though Dr. Blair testified that the petitioner’s poor self-image and need for approval made him vulne rable to being mani pulat ed into making false statements, the information would not appear to be a g reat revelation to a jury who had already be en shown that the petitioner was capabl e of fantastic lies in order to21

getattention and to enhance his stature with his audience. Indeed, Dr. Blair acknowledgedthat no psychological expertise was needed in order to recognize or understand the petitioner’s lyi ng phenomenon. Conseque nt ly, the lay proof presented on this issue in the gui lt phase of the trial substanti ally dup licated the profferof Dr. Blair. Moreov er, we note in passing , although it was not addressed at the post-c o nviction hearing, tha t Dr. Blair’s testi mony might not have been admissible at trial. Her failure to affirm that e xpert testi mony was needed to articulatethe petitioner’s lyi ng problem supports a finding that “scientific, technical,
or other specialized know ledge” would not “su bstantially assist the trier of fac t to understand the evidence or to determ ine a fac t in issue ” and that , accordi ngly, expert testimony is no t required. T enn. R. Evid. 702. In anyevent, the postconviction court itself found that the fail ure to pursue expert evidence in the guilt phase was not, ipso facto , prejudicial. We agree, but we di sagree that it contributed anything to the finding of ag gregate prejudice.

To summarize our treatment of the state’s first issue, w

e hold thatthe state has fai led to demonstrate that the evi dence preponderates against th e trial court’s findings that trial counsel deficiently represented the petitioner, to the point of prejudice, in failing to use the Bowen evidence, in failing to discover the potential testimony

of Jane M cDonald , and in f a iling to im peach the testimony of Donna Lawson. Thus, the record support s the conclusion that the petiti oner received ineffective assistance of counsel during the guilt phase of his trial.

In evaluating the prejudi cial impact of couns el’s deficient performance , we have considered the we ight of the case against the petitioner, se e Stri ckland , 466 U.S. at 695, 104 S. Ct. at 2069, and we are aware that, usual ly, prosecutio n evidence which includes a confessi on of the accused amounts to a strong case. However, the confession utilized here was not of the usual vari ety. It was not solemnized by a formal, official interr ogation process. There was no waiver of constitutional rights

and no ov

ert rec ording of t he confessi on. In the casual,22

perhaps manipulative, setting in which the confession w as elicited, the petitioner’s mendacious propensities only shar pen the realizationthat this confession was vulnerable to attack. It did not pose an insurmountabl e barrier to finding prejudice from defi cient per forman ce of cou nsel, esp ecially whe n the def iciency hampered th e effort to impugn theconfession. In this vein, evidence that w ould have bolstered the petitioner’s claim of alibi was found by the post-conviction co urt to be significant to the theory of the defense. Accordingly, there was no error in ordering a new trial.

b. Ineffective A

ssistance - Penalty

Phase In its next issue, the state asserts the post-conviction co urt erred when it found ineffective assistance of coun sel during the sentencing phase of the trial. Within this rubric, the state mai ntains that (1) counsel r easonably relied upon the information supplied by the petitioner ’s one-time mental health couns el or, Ken Stallings, not to

present his testimony nor to seek further psycholog ical evidence, (2) the petitioner failed to establ ish any preju dice in the absence of expert psychologicalproof, and (3) counsel was excused from developing furt her mitigat ion proof because much of its mitigation proof had been introduced du ring t he guilt phase.

Our

suprem e court recently addressed the duty of counsel to investigate

and present mitigating evidence in G oad v. State , 938 S.W.2d 363 (Tenn. 1996). In Goad , the c ou rt found trial counsel ineffectiv e for failing to investigate

and explore mitigatin g evidence relativ e to the Veteran Administration’s evaluation of Goad and his symptoms of post-tr aumatic stress disorder. Id . at 372- 73. In determining whether Goad was prejudiced b y counsel’s deficient representation, the court set forth several factors to conside r: Wher e the alleged prejudice under Strickland involves counsel’s failure to present mitigating evidence in the penalty phase of a capital trial, several factors are significant. Firs t, cou rts have analyzed the nature and extent of the mitigating evidence that

was available but not presented. Deutsch er v. Whitley , 946 F.3d 1443 (9th Cir. 1991); Step he ns v. Kemp , 846 F.2d 642 (11th Cir. 1988) ; Cooper v. State , 847 S.W.2d 521, 532 (Tenn. Crim. App. 1992); Atkins v. State , 911 S. W. 2d 33 4 (Tenn. Crim. App . 1995). Second, courts ha ve23 considered whether su bstantially simi l ar mitigating evi dence was presented to the jury in either the guilt or penalty phase of th e proceeding. Atkins v. Singletary , 965 F.2d 952 (11 th Cir. 1992); Clozza v. Murray , 913 F.2d 1092 (4th Cir. 1990); State v. Melson , 772 S.W.2d 417, 421 (Tenn. 1989). Finally, the c ourts have considered whether there was such str

o ng evidence of aggrav ating factors that the mitigating evidenc e would n o t have affected the jury’s determination. Fitzgerald v. Thompson , 943 F.2d 463, 470 (4th Cir. 1991); Elledge v. Dugg er , 823 F.2d 1439 (11th Cir. 1987). Id . at 371.
“[E]vidence about the defendant ’s ba ckground and character is relevant because of the belief . . . that defendants w ho commit criminal acts that are attributable to a disadvantaged background, or to

emotional and

mental probl ems maybe less culpable than defendants w ho ha ve no s uch excuse.” Californ ia v. Brown , 479 U.S. 538, 544, 107 S. Ct. 837, 841 (1987).

However, attorneys representing defendants in capital cases are not obligated to parade a multitude of experts and witnesses before the jury at every sentencing hearing in order to provide effective assi stance of counsel. See Harris
v. State , 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996) (defendant not entitled to perfect representation, only co nstitutionally adequat e represen ta tion). Indeed, defense counsel c ould reas onably deter mine after adequate investigation and preparation that

some types of traditional “mitigating” proof might be looked upon unfavorably by a jur

y. See Id . at 168.

This co urt has pr eviously re cognized t hat such proof ma y have dou btful effect in “lessening [a defendant’s ] culpability in the e

yes of the jury. ” Harriesv. State , 958 S.W.2d 799, 807 (Tenn. Crim. App. 1997), perm . app . denied (Tenn. 1997); see also Rickman v. Bell , 131 F.3d 1150, 1157 (6th Cir. 1997) (finding
counse l’s performance deficient where he “succeeded in creating a loathso m e image for Rickman -- one that would make a juror feel compelled to rid the world of him”).24 Any deficiencies of counsel in pr esen ting mitigation proof cent er around the absence of (1) expert ps ychological proof that w ould have amplified the petitioner’s alcohol prob l ems and ( 2) lay witnes ses’ test imony tha t would have highlighted relevant ba ckground or personality information including redeemi ng traits and good deeds.

In this appeal, the state has failed to demonstrate that the evidence preponderatesagainst the lower court’s findi ng of deficient representation because expert psychological proo f was not sought for the sente ncing phase. The petitioner’s medical history reflected a previous finding of psychosis, and Dr. Blair opined that the earlier diagnos is was likely related to the petitioner’s alcohol depend ency. The prior hospitalizations

and diagnosis should hav e alerted counsel to fully explore the potential for expert assistanc e. Strong’s single conference with Ken Stallings was

not adequate investigation of the issue. Stallings’ credentials as a psychologist were in doubt, he expressed antipathy toward the petitioner, and the petitioner

only met withhim one time. Under the circumstances of this case, where the petitioner’s record r eflected, accurately or not , that he had been psychotic, it
was incumbent upon counsel to fully explore and develop the pot enti al for expert evidence.

In consideringthe prejudicial effect of this defici ency ofperformance,
we use the Goad analysis. In the first two factors, we look

at the nature and extent of the miti gating ev idence that was avail able and not presented and the ext ent to which similar mitigating evidence was never

theless presented to the jury in e ith er phase of the trial. See Goad , 938 S.W.2d at 371. Clearly, the ex tent of the petitioner’s alcohol problem was pr esented to the jury. The natur e of the problem mighthave been amplified by testi mony such as Dr. Blair ’s, but she did not app reciab ly

add to the evidence of the defendant’s al cohol problem that was presented at trial. At trial, proof of the petitioner’s dependence on alcohol w as ample and cogent. On the other hand, the third Goad factor -- whether there was4 The post-conviction court found as ineffective assistance of coun sel the failure to develop inconsi stencies between the facts of the mur der and the petitioner’s pretrial

statements. The court was es pecially concerned w ith counsel’s failure to stres s the lapse of time between the v ictim’s discovery

of the petitioner’s involv

ement in burglary and the murder. The court opined that the failure to develop this line of proof prejudiced the pe titioner in countering the sole aggravating ci rcumstance in the penalty ph ase that he killed the vi ctim in order to avoid detection and prosecution for the burglary. The record does not preponderate against these findi ngs. Accordingly , these findings contribute t o the cumulative ineffective as sistance of counsel during the penalty phase.
5 Some of the proffered evidence came wi th barbs. Debra Boggs admitted that, when the petitioner w as drinking, he had threat ened her life and had physically abused her. 25 such strong evidence of aggravating factors that the mitigating evidence would not have affected the jury’s verdict -- weighs heavily in the petitioner’s favor. See id

. The proof that the petitioner kil led the victim in order to avert arrest or

conviction -- the solitarybasis for impos ing the death pe nalty -- was not strong. 4 As an asid e, we note that Dr. Blair’s pr

offer does not contain t he sort of invidious information that has condemned proposed mitigating proof in other cases. See Grosclose v. State , 130 F.3d 1161 (6th Cir. 1997), cert. denied , ---U.S.---, 118 S.Ct. 1826 (1998); State
v. Pat Bondurant , No. 01C01-9606-CC-00236, slip op. at 99-101 (Te nn. Crim. App., Nashville, Mar. 18, 1998 ), Tenn

. Code Ann

. § 39-13-206(a) (1 ) app . docketed (Tenn. 1998). We believe that the fa ilure to seek expert psych ological ev idence
was not prejudicial, in and of itself, on theissue of sentencing. We must, however, examine the other mitigati on claim before drawing a conclusion.

Counsel failed to utilize biograph ical fact s which would have personalized the non-test i fying pet itioner b efore th e senten cer and m ay have revealed redeeming trai ts and deeds. To be sure, the petitioner’s post-conviction proffer, in showing that the petitioner had been a

helpful, caring father, spouse,and neighbor, duplicated proof that was introduced at trial. 5 However, the trial jury did not hear that the petitioner was credi ted with saving the lives of two people. Such evidence should have had some impact upon a jury that was considering a death penalty. We ha ve considered thefact that the petitioner’s deci sion not to testify at the sentencing hearing surprised counsel and pre clu ded them from us ing some facts to whic h the petitioner could have testified. The petitioner’s unex pected6 See n. 2, supra . 26

refusal to testify would hav e hampered counsel in tryi ng to personalize him before the jury; yet, no motion for continuance was made. Acco rdingly, the post-c onviction evidence showed that mitigation should have included available proof that was not otherwise imparted tothe sentenc er, and as we have alr eady seen, proof of the single aggravating sent encing factor was

not great. We conclude that the failure to presentbiographical evidence in mitigation of the sentence w as more prejudicial than the absence of expert proof. Mor eover, th ese c ombined deficiencies were prejudicial to the point of supporting the pos t-conviction court’ s findings of ineffective assistance of counsel in the sentencing phase. 6

c. Waiver In the state’s final issue, it argues that the issues of prosecutoria l misconduct and certain trial court errors were w

aived when they w

ere not objected to nor raised on direct appeal and that waiver

may not be avoided through the mechanism of ineffective assistance of counsel. Presumab ly, the state refers to the issues generally treated by the trial court in its findings and conclusions as follows: Petitioner also claims that counsel failed to object to improp er comments, etc., by the prosecution and to other improper acti ons b ythe prosecution and counsel fail ed to file a motion for a mistria l due to improper arguments by the prosecution. . . . Couns el did not object to any of these comments. Admittedly, some of the prosecutor’s comments wer e speculative. Some may ha ve even been improper. Standing alone many of these comments may not have amounted to sufficient prejudic ial error; when v

iewed in light of the other errors made by counsel, howev er, they do contribu te to the overall fi nding tha t the def endant d id not rec eive the effective assistance of counsel a nd that his case was prejudiced by counsel’s performance.

The state relies upon State v. Overton , 874 S.W.2d 6 (Tenn. 1994),
a post-conviction case,i n wh ich our su preme co urt reviewe d claims o f ineff ective assistance of counsel. In one of those claims, trial counsel had f ailed to object when the trial court had used inappropriate jury i nstructionson the issue of force in the commission of aggrava ted rape. Id . at 11. The supreme court found that the27

error “could have” been prejud icial to the petitioner and “may well have been
re versible error” had it been object ed to and raised on appeal. Id . Neverthele ss , the supreme court held that the claim “is not a cogni zable groundfor relief in a postcon viction petition” because it does not implicate a constitutional iss ue as i s necessary in a post-conviction case. Id . at 12. “Moreover,” the hi gh court said, “to allow every error committed in the trial court to be recast in a post-conv iction petition
as an ineffective assistance of couns el allegation would be to subv ert the limited purposes of the post-conviction procedure.” Id

.

We decline toapply Overton to hold that the petitioner has waived the ineffe ctive assistance of counsel claim based upon the failur e to object to the alleged prosecutorial miscond uct. The underlying tri al court error in Overton was deemed not cognizable in a post-conviction proceeding, presumably, because it did not present a constitutiona l issue. See Tenn. Code Ann. § 40-30-105 (1991)(repealed 1995). However, this court has said, “Prosecutorial misc ondu ct qualifiesas a constitutional basis for relief.” Coker v. State , 911 S.W.2d 357, 366 (Tenn. Crim. App. 1995). Further more, Overton does not acc ount for ineffe ctive assistance of counsel itself as a constitutional i ssue. See Strickland , 466 U.S. at 686, 104 S. Ct. at 2061-62. The constitutional quality of eff ective assist ance o f counsel is not always dependent upon the underlyin g act or omission being constitutionally flavored. For instan ce , the Supreme Court made it clear that, in certain circum stances , the fa ilu re to inves tigate a ca se may resu lt in inef fective assistance of counsel, Strickland , 466 U.S. at 691, 104 S. Ct. at 2066; yet, the state and f ederal constitutions contai n no right to investi gation apart from the right
- to counsel provisions. See generallyU.S. Const. Amend. V; Tenn. Const.Art. I, § 9. It may be true that, in the pr esent case had counsel raised the misconduct issues
on direct ap peal, th e appella te courts may have re viewe d the merits of the claim
even in the ab

sence of c

ontempor

aneous o bjecti ons or mo tions fo r mistrial. See, e.g. , State v. Sparks , 563 S.W.2d 564, 567 (Ten n. 1978) (when prosecutor’s remarks unnecessarily raised racial issues, the defense made no objection, and the28

trial court should ha ve intervened sua sponte, appellate court review ed the prosecutorial misconduct issue on the merit s). Nevertheless, we are reluctant to apply the Overton language t o preclud e review via waiver.

Even though the state makes no clai m on the prosecutorial miscond uct-inef fective assistance of counsel issue o ther than waiver, we feel constrained to review the iss ue in light of the entanglement of this issuein the postconviction court’s ove rall find ings of in effect ive assistance of counsel. The review f irst entails a determination of w hether prosecutorial misc onduct occurred. Stat e
v. Pulliam , 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996), perm . app . denied (Tenn. 1997). That determination initiall y requires a decis ion about whether the chall enged conduct is improper. Id . Althou gh trial co urts have discretionary author ity to control the argument of counsel andcouns el has wide latitude to argue the facts and reasonable inferences therefrom, “[c]losing arguments must be temperate, must be based upon evidence introduced at trial, and must be relevant to the is sues at trial.” Coker , 911 S.W.2d at 368. Most of the r estrictions fall upon the pr osecutor, who is the repre sentati ve of the state and whose duty i t is not only to seek

convictions but also to ach i eve justice through pr oceeding fairly. Id .; Manning v. State , 195 Tenn. 94, 257 S.W.2d 6 (Tenn. 1953). The prosecutor’s argument s hould not be calculated to inflame the jury

. Coker , 911 S.W.2d at 368.

Once prosecutorial conduct is deemed improper, the appellate court’s taskis to determ i ne “whether the impropriety affected the verdict.” Pulliam , 950 S.W.2d at 367. Prejudic e is assessed thro ugh analyzing the misc onduct in light

of the factors set forth in Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976): (1) the misconduct vie wed in context and the facts and ci rcumstancesof the case; (2) any curative

measures taken by the court or the prosecutor; (3) the intent of the prosecutor; (4) the cumulative effect of the misconduct in v iew of the consequence of any other errors in the trial; and (5) the “r elative strength or weakness of the case.” Judge , 539 S.W.2d at 344.29 If misconduct is found but no objection was made, the next layer of review in the post-convicti on context is to determine w hether the failure to raise or preserve the substantive issue amount s to ineffective assistance of counsel. Coker , 911 S.W.2d at 371. As we have shown above, ineffective assistance requires the presence of both the elements of deficient performance and prejudice. Strickland , 466 U.S. at 693, 104 S. Ct. at 2067.

At the outset, we cannot re view th e post-conviction cour t’s actions
on these issues with

the deference customary in post-conviction appeals because the lower court has not specified which of the prosecutor’s act ion s were “speculative”

or which, if any, were “improper.” Moreover, the post-co nviction judge did not presideover the trial, and his review of alleged misconduct was under taken in the same way as is ours--through review of the trial transcript. Nevertheless, the lower court apparently found that some of the objectionless misconduct resulted in prejudicial ineffe ctive assistan ce of cou nsel, and we review the cited a ctions in order to determine if any of them provide a basis in the record to support the lower court’s general finding of ineffective assistance.

The trial court referenced v arious paragraphs of the amen ded postconvicti on petition which contained allegations of such mis conduct; however, amon g these allegations only the ones following actually specified prosecutorial actions: 1. In closing argument during t he guilt phase, the prosecut or made references to: a. the victim’s good character; b. the pe titioner ’s decisio n not to te stify;
c. the petitione r’s alleg ed possession of a firearm or “dope ” when confronted by investigating officers after the murder; d. the petitioner

having stolen the w

eapon thatwas used to kill the victi m; e. the dedication of the investigating police officers as a factor30 justifying a guilt

y verdict; and f. the duty of

the jury to convict the defendant, in keeping with the duties carried out by the police. 2. In closing argument during the penalty phase,the prosecuto r made references to:
a. the responsibility

for the penalty decision rested elsewhere than with t he jury; b. the trial being necess itated by the breakdown of plea negotiations;
c. a life sentence requiring that mitigating factors outw eighed aggravating factor

s; and d. the jury placing

weight on the

good character

of the victim and the gr ief and l oss experi enced by h er famil y. Defense counsel objected to none of th ese comments by the prosecutor.

Lookin g f irst to the prosecutor’s guilt-phase final arg ument, we find that, with two exceptions , all of the cited comments were sufficiently grounded in relevance to some material issue or were within the prosecutor’s prerogative of fair comment and were not improper. Th e exceptions are (1) th e comment that the petitioner

“steals his guns” and

(2) the spate of comments that affirmed the merits and lifestyle of the victi m. We judge the first comment, although improper, to be so banal under the first Judge factor as to be utterly l acking in impact.

The guilt-phase comments concerningthe worth of the victim’s life are
more troublesome. See State v. Zirkl e , 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995) (pros ecu torial commentary “regarding the personal chara cteristics of the victim in a murder case is gener ally irrelevant

and designed to evoke jur o r sympathy”). The comm ents were i llustrat ive of information the jury had received and
were generally based in the evidence. Moreover, the comments pr aising the victim
were logical responses to the petitioner’s finalargument which stressed the victim’s31

“darker side.” There were no curative measures speci ficall y addressed to the prosecutor’s comments aboutthe victim, but the trial court instructed the jur y as to the nature of argument, the difference betw een argument and evidence, and that the jury must decide the case based “solel y and alone upon the

evidence . . . and not from any other source nor upo n speculati on or conjecture . . .and the l aw as given you by the court.” The trial court instruct ed th e j ury on the burden of proof carried by the state and cautioned them t o undertake thei r deliberations with “no sympa thya nd no prejudice.” The prosecutor was blameworthy in that his likely intentwas to portray a “ good and evil” contras t between t he vi ctim and the petition er. In light of the other errors and the relative streng th or weakness of the state’s case, the miscon duct may have had some effect; how ever, upon assessmentof all the factors, we fail to see thatany prejudice rose to the level of denying the petitioner a fair trial. See Zirkle , 910 S.W.2d at 888.

Having reached that determination, we conclude that trial co uns el deficiently represented the petitioner w hen they failed to object to these comments that we have deemed imp roper. Ho wever, beca use there was no subs tantive prejudice resulting from the pr osec utor’s comments, the prejudic e element of ineffective assistance of counsel is not shown.

Next, we look at the comments t h e prosecutor made during his penalty-phase final argumen t. We fi nd that, in context, none of these c omments were improper.

We elaborate only on one of the issues. The prosecutor argued that the jury shou ld not “let anybody co me up here and tell you you are an executioner” and that, based upon the status of our capital crime law, “[i]f the jury unanimously determines that at least one. . . or several s tatutor y aggravatin g circumst ances ha ve been proved by the State bey ond a reasonable doubt, a nd [they] are not outweighed by any mitigating circumstances, the sentence s hall be death. Ta ke32

nothing upon you other than that.” The peti tioner claimed below

that this argument violated the principles established by the Supreme Court in Caldwell v. Mi ssissippi , 472 U.S. 320, 105 S. Ct. 2633 (1985). In Caldwell , the prosecutor argued that the jury’s decision to impose the death penalty “ is not the final decision. . .

. Your job is reviewable. . . . The decision you render is automatically re viewable by the SupremeCourt .” Cald well , 472 U.S. at 325 -26, 105 S. Ct. at 2637-38. The High Court held that “it is constitutionally impermissi ble to rest a deat h senten ce on a determination made by a sentencer who has been led to beli eve that the responsibility

for determini ng the appr opriateness of the defendant’s death res ts elsewhere.” Id . at 328-29, 105 S. Ct. at 2639. W e do not beli eve th at Caldwell applies to the comments in the present cas e. Here, the prosecutor communicated to the jury that they functi oned under the law o f the state in discharging their prescribed duties and that a r esponsible decision to impose the death penalty

did not cast them in the role of executioner. These remarks do not sugge st to the jury that their decision to impose th e de ath penalty would be tempor ary, tentative, or
con diti onal, depending upon the review of higher courts. See State v. Smith , 893 S.W.2d 908, 923 (Tenn. 1994). But see State v. Sparks , 563 S.W.2d 564, 568-89 (Tenn. 1978).

To summarize, we conclude that trial counsel’s failure to object to the listed allegations of prosecutori al misconduct did not result in ineffective assistance of counsel which prejudic ed the petitioner in either phase of his trial.

Conclusion. The evidence does not preponderate against the post -c onviction court’s findings that prejudicial ineffective assistance of counsel occurred (1) when counsel failed to explor e or uti lize t he infor

mation h eld by J ane McD onald an d Jeff Bowen and (2) when they did not use readily available sources of impeachment to impeach the testimony of Donna Lawso n. Accordingly, bas ed upon these grounds, the record supports the gran t of a new trial. Also, the evidence does not33

preponderate against the post-conviction court’s f indings th at prejud icial inef fective assistance of counsel occurred in the sent encing phase of the t rial when counsel failed to investigate or pr esent both expert and additional lay mitigation evidence. Thus, apart from the new trial whic h has now been granted, the r ecord supports the lower court’s grant

of what otherwise would have been a n ew sentencing hea ring.
The judgment of the trial court i s affirmed.

________________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

______________________________ GARY R. WADE, PRESIDING JUDGE

______________________________ NORMA McGEE OGLE, JUD GE