# FILED

December 8, 1999 Cecil Crowson, Jr. Appellate Court Cle rk IN THE TENNESSEE COUR T OF CRIMINAL APPEALS AT JACKSON MARCH 1999 SESSION

VICTOR JAMES CAZES, ) ) No. W1998- 00386-CCA-R3-PC

Petitioner, ) ) Shelby County VS. ) ) Honorable Chris Craft STATE OF TENNESSEE, ) ) (Post-conviction: underlying offenses- first Respondent. ) degree felony murder, aggravated rape, ) first degree burglary)

For the Petitioner : For the Respondent : Brock Mehler John Knox Walkup 751 Roycroft Place Attorney General and Reporter Nashville, TN 37203 Michael E. Moore Solicitor General William D. Massey and 3074 East Street Jennifer L. Smith Memphis, TN 38128 Assistant Attorney General 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 William L. Gibbons District Attorney Gener al and John Campbell Assistant District A

ttorney General 201 Poplar Avenue - Third F loor Memphis, TN 38103-1947

OPINION FILED:__________________________

AFFIRMED
Joseph M. Tipton Judge OPINION

The petitioner, Victor J ames Cazes, appeals as of r ight from the order of the Shelby County Crimi nal Court denying him post -conviction relief fr

om his 19902

convictions for felony m urder, aggravated rape and fir st degree burglary. The pet itioner was sentenced to death for the m urder conviction and recei ved twenty-five-year and six-year sentences, res pectively, for the aggravat ed rape and burglary convic tions. The judgments of conviction w ere affirmed on direct appeal. State v. Cazes , 875 S.W.2d 253 (Tenn. 1994). In this post -conviction appeal, the petitioner raises the follow ing issues: (1) whether the trial jud g e at the evidentiary hearing should

hav e recused himself and reas signed the petition to anothe r division of the trial c

ourt; (2) whether the petitioner was denied the effective assistance of counsel; (3) whether the petitioner was denied his right to an im pa r tial jury; (4) whether the use of the petitioner’s felony

convictions as an aggravating circumstance violated the princip les of due process and ex post facto ; (5) whether the state withheld exculpatory informa tion; (6) wh ether the reasonable doubt jury instructions were constitutional; (7) whether the cumu lative effect of the foregoing errors deprived the petitioner of a fair trial and due process; (8) whether a harmless err or an alysis relative to invalid aggravating circumstances is constitutional; and (9) whether the trial court erred by not conducting an in camera review of the prosecutor’s files.

We affirm the trial c

ourt’s denial of the post-c onviction petition.

The facts surrounding the cr imes in this case are de scribed by the Tennessee Supreme Court in its opinion on direct appeal as follows:

The St ate’s proof introduced at the guilt phase of tria l demonstrated that on Sunday mornin g, April 24, 1988, the bodyof Gladys Skinner, an older woman wholived alone, was found in her home i n t he Frayser area of Memphi s. She had last been seen alive late Saturday night by Ben Harris, a friend who brought her home from a card game. After checki ng Ms. Skinner’s house to make s ur e everything was “safe and secure,” Harris left around 12:10 a.m. The next morning, because her te lephone was bu sy eac h time they called, Gladys Skin ner’s daughter and grandson went to her house to check on he r. When t he y arrived, they noticed that a front window screen had been removed, that the window w as broken, that blood wason the window blinds, and that the doors to the ho use we re locked. The grandson and a neighbor entered the house through the3 front window and found Gladys Skinner’s body lying beneath som e bedcovers on the bedroom floor, between the bed an d the wall. Thewall next to the bed was sp attered with blood as were several pictures from the wall that lay broken on the floor. Blood al so sta ined the floor and the fitted s heet on the bed. While the bedroom had been ransacked, nothing of value was missing from the house. Gladys Skinner’s nude b ody was lying face down, her knees undern eath he r with her buttocks “j acked up off the floor” and her legs spread apart. Scr ape marks were found

on her inner legs and vagina. Her rig ht breast had been bitten and her left breast was scraped. Dilation of the vagina and rectum demonstrated penetration at or after the time of death; however, no sperm were found. Numerous marks and bru ises were found on her body, including defensiv e w ounds to her arms and hands, and a large bruise on her back that the proof indicated could have been caused b y a fist. The Shelby County

medical examiner testi fied that the vi c tim’s death was caused by skull i njuries that were infli cted by mul tiple blows to the head with a blunt instrument, lik e a welder’s chipping hammer. According to the medical examiner and a forensic anthropologist who examined t he skul l, the number of blows had ranged from eight to fifteen and the skull had been “virtually shatter ed” by the force of the blows. Their proofshowed that one or more of t hese injuries would have caused death wi thin minutes to an hour, but the victim would no t necessarily have lost c onsciousness immediatel y. A forensic serologist’s testim ony indicated that the assault may have continued for some time. The serologist testifi ed that some blows may have been struck after the blood from some of the wounds had begun clotting, a n d that it takes three to fifteen minutes for blood to clot outside the body.
At the time of the murder, the defendant, Victor Cazes, a welder, workedsporadically as a handyman at an automotive repairgarage owned by Michael Lucas, Gladys Skinner’s stepgra ndchi ld. Before the murder, Cazes had been to Gladys Skinn er’s house two to three times to work on her car . O n Saturday night, April 23, 1988, Ca zes attended a birthday cookout at Lucas’s home , which was a few blocks from Skinner’s house. He left the gathering alone ar ound 10 or 11 p.m. Circumstantialevidence tied the defendant, Vic tor Cazes, to theoffense. His finger and palm prints were found on the front window

screen and frame. Two of his fi ngerprints were lifted from a light bulb beside the back door and fresh pry marks were found on the [back door]. Gladys Skinner routinely left this back light on at night , and it wa s on when Ben Harris left her house shortly after m idnight Sunday morning. Wh en her body was found, the light was off and the bulb was l oose in its socket, as if it had been unscrewed. Michael Lucas testified that Victor Cazes owned two or three chipping hammers, which Luca s described as blunt i nstrument s made entirely of steel w ith a point on one end, a chisel flat on the other end, and a coil-wiredhandle. A forensic anthropologist testified that a pattern of depr essions located in the involved portion of the vi cti m’s skul l were consistent with ridges on the striking surface o f a particular

welder’s chipping hammer owned by Cazes. The

hammer had been crafted into a metal knick-knack by Cazes after the crim e and given to a friend’s mother. The forensic serologist also testifie d that a4 tr ansfer blood stain on the victim ’s bedsheet was causedb y contact with a wet, bloody object which was consistent wi th the size and shape of this same chipping hammer and another like it that Cazes had left at the home of his friend’s mother.
Dr. Richard Souviron, a forensic odontologist, test ified that, based upon his comparis on of the bite marks on Gladys Skinner’s breasts with molds and m odels of Cazes ’ teeth, he had concluded to a reasonable degree of dental certainty

that Cazes’ teeth had made the bite marks on the victim’s bodyat or about the time of her

death. Another forensic odontologis t, Dr. Harry Mincer, testified that the defendant Cazes could have made the bite mark s o n the victim. Two wom en who had engaged in sexual intercourse w ith Cazes testified that he had also bitten them, and that the v ictim’ s body position was one he preferred during sex. The defendant presented no proof. Based on this evidence in the guilt phase, the jury found the defen dan t, Victor Cazes, guilty of first-degree felony murder in the perpetration of rape, and also g uilty of aggravated rape and first-degree burglary.
In the se ntenc ing phase of the trial, the St ate relied upon the evidence presented during the guilt phase and also introduced records of the defendant’s previous convictions in Shelby County, Tennessee, in Februa ry 1990 for “assault [with intent to commit murder in the first degree] with bodily injury” and for aggravated rape.

In mitigation, the

defendant introduced medical records from the pe riod of his incarceration in the Shelby County Jail to s ho w that he had required medic al treatment on several occasions as a result of fights, and that he had been placed on suicide watch twice while i ncarc erated. An acquaintance testified that the def endant was a heavy user of alcohol, marijuana

a nd coc aine, and that he sometimes c ould not remember what he had done whi le he was intoxicated. The defendant and two of his brothers testifi ed about his background. One of twelve children, the defendant had been unable to control his urinatio n until he was twenty. He testified that his father h ad b eaten him when he was young. O ne brother described the defendant as “hot-tempered” and “always fighting.”The defendant said that he fought because other people would tease him when he wet on himself. Inthe seventh grade, after being arrested for truancy, the defendant set fire to his jail cell. He underwent a psychiatric examination and was sent to reform schoo l, where the fights con tinue d. After his release from r eform school, the defendant mar ried twice. He has one child from his second marriage. The def end ant had worked for a substantial wage as a welder in Louisiana , and a brother described him as a “hard-working man.” The defendant testified he began drinking after his first divorce and admitted using various drugs and flying into rages. As to the crime itself, the de fendant testified that on S aturday night, April 23, 1988, he was “full of it” and

“well o n [his] way” to being drunk when he left the cookout at Michael Lucas’s home. After leaving the coo kout, he drank a bottle of Jim Beam on his way to a bar w here he “got totally drunk.” He stated that he remembered nothi ng more about the night.1 The felon y murd er aggra vating circ umsta nce w as reve rsed on appea l, and the su preme court found that

its appl icati on was harmless. 5

Dr. Wyatt Nichols, a clinical psychologist , testified that while the defendant was competent to st and trial and no t legally i nsane, there were signs to i ndicate psychological problems. Dr. Nichols specifically mentioned the defendant’s long history of chemical dependency and multiple drug abuse. He also suggested that the defendant might have an impulse control problem which, along wi th the history of bedwetting, was possibly indicativ

e of minimal neurologic al damage. Based on the proof, the jury found the existence of three aggravating circumstances beyond a reasonable doubt, which were: (1) that the defendant had been previously convicted of violentfelony off enses; (2) that the murder was especially hein ous, atrocious, or cruel i n that it involved torture o r depravity

of mind; and (3) that the murder was committed while t he defendant was engaged in committing a felony. Tenn

. Code Ann. § 39-2-203(i)(2), (5), and (7) (1 98 2). 1 In addition, the jury found that the miti gating circumstances wer e not
sufficiently substantial to outweigh the aggravating circumstance and as a result, sentenced th e defendant to death. Cazes , 875 S.W.2d at 257-59.

At the post-conviction evi dentiary hearing, Gloria Shettles, a private investigator hired on behalf of the petitioner, testifi ed that she obtained the names of twenty-eight witnesses f rom the prosecutor’s or iginal trial files. She said she located fifteen of these witnesses and interviewed nine of them, including former empl oyers. Ms. Shettles testified that those interviewed were very cooperative but tha t they could not recall some information. She said that three of the petitioner’s former employers indicated that the petitioner was an excellent worker but that the petitioner had difficulty getting along with coworker s and following directi ons. Ms. Shettles said that the employers also reported that the petitioner did not tak e criticism well

and was impatient, emotional and impulsive.Ms. Shettles said that oth ers told her that the petiti oner was quiet and a loner. Ms. Shettles testified as follows:

A lot of these people had been, or had observed [the petitioner] when he was drinking. And so a lot of their remarks had to do with a definite change in his beha vior under the influence of alcohol. And they spoke to that .

. . . They talked about [the petitioner] literall y bei ng in control one minute and not being in control the next. They couldn’t give -- they were consistent

in their remarks, but

theycouldn’t give me any basis for it, even in their opinion. That he was sitting there and was fine, and then the next minute [h e] mi ght become very angry at somebody and would act out on th at a nger. . . . Well, people made -- almost every one made a re mark such as, it seemed as though he had a mental problem. He might have6 had a split personality. Obviously, these people aren’t experts. But, in their opinion he would ha ve a wild look, for instance, after h e was dr inking. There was a notic eable change that they could describe. Ms. Shettles testified tha t the information she gathere d from her interviews

was consistent with the information found in the police reports.

Dr. Pamela Auble, a cli nical neuropsychologist, testified that she conducted a psychological and neuropsychological eva luation of the petitioner. Dr. Auble stated that before testify ing at the evidentiary heari ng, she reviewed a social history prepared by Sarah O ttinger; reports prepared by Drs. Rossby, Nurc ombe and Smith; and the results of t ests she administered on the petitioner, including an intelligence test, an achiev ement test in reading and wr iting, a memory test, t

wo tests of mental flexibility, two language tests, two tests of motor speed and dexte rity, and five personality tests. Dr . Auble said she also inter viewed the petitioner.

Dr. Auble testified that the petitioner was cooperati ve during the tests and the interview. She also s tated: [T]here was no evidence, or n o strong and conclusive evidence that the memory and think in g that [the petitioner] does is a lot different from what other people do. A prob l em that would indicate or

suggest that parts of his br ain, you know there might be holes in parts of his brain, or damage in certain areas of his brain. . . . It’s known that, things like head injuries, oft e n cause emotional lack of c ontrol, impulsiveness and an inability to control emotions. But, they’re also associated w ith difficulti es with memory and thinki ng. I didn’t really find that with [the petitioner], which i ndicates to me that the troubles that he has controlling his emotions are more likely to be the result of a chemical imbalance, o r something along that l ine, rather than the results of a head inju ry, per se. With regard to the personality tests, Dr. Auble testified as follows:

[The petitioner] is someone w ho tends to brood and ruminate about wrongs that have been done to him. He thinks a great deal. He has probably a rich i nternal life, that is how he kind of copes with his world. He kind of retreats into fantasy or thinking. The personality testing indicated t ha t he can be impulsive and he can act out und er stress. He doesn’t have very good emotional controls. From the personality t esting [the petitioner] is som ebody who has a lot of difficulty relating to other people. Some parts of him wants[sic] closeness, other parts feel angr

y and re jected. He is ambivale nt about both women and men, and in general, I think, tries to keep people at a distance. He tends to be suspicious of people. You know, to believe that others would hu rt him if they were gi ven the chance. There was also evidence on the personality testing o f confusion about sexuality, and [mother-son] relationships.7 Regarding the petitioner’s social history, Dr.Auble testified that the petitioner is the ninth of el even children and that until he was in his twenties, the petitioner suffered from enuresis, which caused the petitioner to urinate on him self both while asleep and awake. Dr. Auble stated that because of thi s condition, the petitioner was “picked on” by his family and other childr en. Dr. Auble testified abo ut physical abuse the petitioner suffered from both parents at an ea rly age, fights he had with his siblings, and discipli ne problems he had in school,including an attack on a teache r and a principal and his inability to relate to other students, which led to expulsion from two elementary schools.

Dr. Auble testified that s he diagnosed the petitioner with intermittent explosive disorder, whi ch she said is consistent with Dr. Rossby’s finding of low serotonin levels. With respect to serotonin, Dr. Auble stated that:

Serotonin is a neuro-transmitter. It’s one of several in the brain. Neuro-transmitters have various functions. S erotonin has been associated, primarily, with inhibitory functio ns

. Spe cifically, and probably the most relev ant for this inhibitor , are functions of the amygdala which is a brain structure, kind of in the mid-brain limbic system. The amygdala is responsible fo r emotiona l memory. Disrupti on of amygdala function causes rage reactions. A low serotonin level would be something that woul d d ecrease inhibition in the amygdala, making it more likely that a rage reaction might occur.

Dr. Auble testified that the petitioner’s intermi ttent explosive disorder is “characterized by periods of rage, which are often triggered by fair ly minor events, during which the person has no control . . . [ a]nd then, they eventually subsi de.” According to Dr. Au ble, the petitioner has suffered fr om this disorder sinc

e childhood. Dr. Auble testified that this disorder could be att ributed to traumatic exper iences the petitioner had as a child, as well as the petitioner’s low serotonin level. Dr. Auble stated that the petitioner would sometimes enter a dissociative state, triggered by a minor event related to past traumatic experiences, an d afterward, the petitioner would have no memory of w hat occurred while he was i n that state. Dr. Auble als o concluded that the petitioner exhibited schizotypal personality disorder with antisocial and compulsive traits.

Dr. Auble testified that the petitioner’s history of alcohol and drug abu se would contribute to lower ing his serotonin levels and inhibitions. Dr. Aub le testified that:8 [the petitioner’s] violence towards women increased, from the time he was married and co incided with the greater al cohol use

. . . . Yes. Certainly, a correl ation, yes. An association between the disinhibition of al co hol and, you know, [the petitioner] has just imm ense amounts of underlying anger. A lot of thattowa rds women. In the context of alcohol and substan ce abuse, in the context of relating to a woman, you know, those would come together and make it more likely

for him to experience anger, rage, intermittent explosive disorder and dissociative episodes.

Dr. Auble testified that had she been contacted befo re trial, she would have recommended further analysis and investigation of the pet itioner’s brain chemistry, specifica lly testing of the cerebr um spinal fluid, which would have shown the low serotonin levels. Dr. Auble explained that “g iven the organic and psycholo gical problems, the history of physical and emotion [sic ] abuse and neglect, the intoxic ation at the time, that it is . . . likelier than not that [the petitioner] was in a di ssociative state and was unable to conform his conduct to the requirements of the law, unable to control his behavior.”

Dr. Auble testified that s he did not personally perfor m all the tests administered on the petition er during the evaluation; onl y reviewed a summary of the transcript prepared by post-conviction counsel; and did not discuss the matter with Dr. Nichols, the defense expert at trial, except for reviewing his notes and data . Dr. Auble testified that she did not re member whether she asked the petitioner about the events surrounding the murder or whether he was using alcohol or drugs at the time. She testified, however, that sh e believed that another expert w as supposed to focus on that aspect.

Dr. Murray Smith, a specialist in internal and addiction medicine and the Medical Director of B

aptist Hospital’s drug and alcohol treatment center,testified that he evaluated the petitioner both m edically and in terms of addiction medicine. Dr. Smith testified that he reviewed summaries of the trial transcript and previous medical records prepared by post-convicti on counsel; the reports of D rs. Rossby, Auble and Nur combe; the social history prepar ed by Sarah Ottinger, and he int erviewed the petitioner for about four hours. Dr. Smi th stated that he also perform ed blood and glucose tests on the petitioner. Dr. Smi

th testified that the petition er exhibited signs of hypogl ycemia,9

which is a significant ly low blood sugar level that results in stress

ful, hyper-irritable

and excitable feelings. He s aid that adrenaline levels would increase to raise the blood sugar level. Dr. Smi

th further testified that al cohol, though initially r aising the blood sugar level, would eventual ly lower the level. H e stated that persons sufferi ng from hypoglycemia would crav e alcohol to get a “quick fue l supply.” Dr. Smith stated as follows: There’s [sic] two symptom s a pe rson feels. One is the affect

of the low sugar itself. And the second is the affect of th e adrenaline. The affect of the low sugar itself may b e the feeling of confusion. A feeling like spaciness, like things aren’t worki ng wel l, like poor focus, poor concentration, poor memory. Then the affect of the adrenaline includes

increased heart rate, increased breathing rate, i ncreased blood pressure, increase [sic] muscular acti vity with shakiness. A sense of impending doom. A sense of anxiety. A sense of irritability. Even some paranoia.

Dr. Smith testified tha

t stress, the petitioner’ s alcohol and chemical dependency, and the petitioner’s diet of “fast food typ e foods with a very heavy intake of Coca-Cola, regular Coca-Cola” caused the petitioner’s hypoglycemic condition. Dr. Smith believed that the petitioner inherited the brain chemistry which fostered his alcohol and chemical addic tion. Dr. Smith stated that the petitioner informed him that he experienced alcohol induced blackouts. Dr. Smith a lso stated that the summary of the trial transcript indicated that other witnesses testified about the p etitioner’s blackouts. Dr. Smith t

estified that the general opini on in his profession is that alcohol releases the inhibition agai nst violent rageful behavior rather than producing that ty pe of behavior. Dr. Smith testified that for people who suffer from intermittent explosive disorder, the addition of al cohol and drug addiction “wo uld be like pouring gasoli ne on a fire.” In addition, Dr. Smith testified that alc ohol and cocaine use increases the likelihood of the severit y of hypoglycemic reacti ons.

Dr. Smith testified tha

t alcohol contributes to l owering the serotonin level over time, which causes irritable and suspicious feelings, and an inability to inhibit behavior. Dr. Smith tes tified that a combination of alcohol abuse, low serotoni n, hypoglycemia and intermittent explosive disorder, such as he believed was presen t in the petitioner, would prevent a person under severe emoti onal stress from contr olling his behavior. Dr. Smi

th stated that all these conditions are treatable and that tr eating them would reduce the risk of uncontrollable behavior. Dr. Smith agreed with Dr.10

Auble’s diagnosis of inter mittent explosive disor

der and stated that he believed the petitioner has antisocial personality disorder as well.

In response to a question about what might have triggered th e petitioner’s violent behavior on the night of the crime, Dr. Smi th stated:
I can tell you what I b elieve. I believe that as a child [th e petitioner] had something very, very horrible happen to him in regards to an older

woman. His mother say s that she will take whatever

it was to her grave and will not talk about i t. An d because of dissociation, [the petitioner] cannot ever know what it was. And that whatever tr iggered his violent, uncontrollable activity that night, was triggered b y somet hing tha t related to an older woman and that particular situati on. And I may never knowand you may never know. And [the petitioner] certainly wouldn’t know. But, I believe it happened. And I believe it based on a lot of literature and ba sed on a training program that I went to in New Orleans at River Oaks Hospital. That

this type of thing happe ns . . . . It’s more than a guess. It’s an educated summary of all the ma terials. If I took

just one part of it, no I couldn’t, but taki ng the big picture of what his m other said, of his history, of

his reactivity to

women. The big picture would suggest that this is what happened to hi m. And that he was triggered into a dissociative state where he had absolute loss of control that his functional self wasn’t there. All he was was a reactive self. Dr. Smith further testified that a person in a dis sociative state could prem editate, i.e., act “very clever . . . because it is surviva l.”

Dr. Smith stated that although he reviewed the summar y of the transcript prepared by post-convicti on counsel, he did not ask the pet itioner any questions about the facts and circumstance s surrounding the crime.Dr. Smith testified that it was not necessary to question the petitioner on this because the sum mary of the transcript noted that the petitioner had no r ecollection of the events. H e testified that in addition, the only report of the petiti oner’s intoxication on the night of the murder came fr om the petitioner himself. H e said that the petitioner tol d him that he started drink ing between 3:00 and 5:00 p.m. and consumed tw o pints of whiskey. Dr. Smith testified that although the petitioner could not recall the specific ev

ents of that night, the petitioner told him that he would norm ally ingest two Valium pills and several li nes of cocaine and smoke two to three marijuana cigarettes.

Dr. Barry Nurcombe, a psychiatry professor and the director of child an d adolescent psychiatry at Van derbilt University, testified that he interview ed the11

petitioner four or five times for a total of eleven hours. Dr. Nurcombe said he also reviewed the petitioner’s social history; a sum mary of the trial trans cript; and reports from Drs. Rossby, Smith and Auble during his evaluation. Dr. Nurcombe said he did not test the petitioner. Dr. Nurcombe testified that the petitioner suffered from intermittent explosive disorder, polysubstance abuse, parano id personality disorder, hypoglycemia and a low ser otonin level. He testifi ed that ninety-nine percent of the same sex, race and age populati on as the petitioner have higher serotonin levels than the petitioner. Dr. Nurcombe stated that the combination of these fa ctors would cause the petitioner to have diffic ulty controlling viol ent impulses. According to Dr. Nurcombe, the petitioner’s capacity to conform his conduct to the requirements of the law was impaired at the time of the offense in this case.

Dr. Nurcombe testifi ed that research in this fi eld since the early 1980s has demonstrated that low serot onin levels are associate d with violent impulsi

ve behavior. He said the research further demonstrates that reci divist offenders of viol ent crimes tend to have a lower serotoni n level than do nonrecidivi st offenders. He said that a combination of hypoglycemia and low serotonin levels seems to be a possible indicat or of recidivism. Dr. Nurcombe stated that alcohol consumption and intermittent explosive disorder are also factors.

Dr. Nurcombe testified that individuals have certain memories that are reactivated by situations or events that remind the individual of terrifying or emotiona lly arousing experiences from the past. He said the person will not usually rem ember the past event, but when the emotion from the past event is tr iggered by something in the present, not necessarily recognized by the person, an automat ic discharge of behavior, feeling and emotion occurs. He testified that serotoni n helps the individual contr ol these automatic discharges. According to Dr. Nurcombe, lower serotonin levels, like the petitioner has, severel y impair the ability to control the automatic di scharges of emotion or behavior. Dr. Nurcombe stated that after reviewing the petitioner ’s social history prepared by Ms. Ottinger, he found the followi ng factors relevant with regard to the generation of emotional memory in the petitioner:

The social hist ory . . . did indicate a consider able degree of emotional and physical abuse . . . . First of all [the petitioner] was the ninth of eleven children

. He was born . . . into a family12 which was identified, I think, ethnically with the Cajun group in Louisiana. His family was very p oor. Early in their marr iage [the petitioner’s] p arents are said to have had a turbulent marriage. Although by the time he was born, this was le ss apparent. The parents, however, wer e described as disen gaged f rom each other. This was a family in which affection was n ot ex pressed. And, in fact, the onl y emotion that was expressed, and in fact, encouraged to be expressed was fighting between the siblings. By the time [the petitioner] was born, his mother

left much of the child rearing and child care to the older daughters in the family . . . . [The petitioner] suffered from early childhood to the age of 21 with severe problem [sic] of urin a ry incontinence, which i nvolved both daytime and nighttime incontinence .

. . . The mother is said to have been punitive towards him for thi s. The other siblings humiliated him. His nickname at home was “piss-bug.”

. . . In fact, from the very first day of school he remembers being separated from the classroom for havi ng been incontinent and being made to stand in a corner. And this happened frequently when he was at school. And for other children rejecting him

or humiliating him on these grounds . . . . [The petitioner] was subject from middle childhood, onward, to attacks o f rag e, which became extremely severe by the age of 11 to 12 years. As a result of hi s atta cks of rage, of impulsi ve running away fro m sc hool, he was suspended, expelled, in fact, from two schools. And had very significant difficulties in the t hird and f inal school that he attended. Rage, assaults on teache rs, impulsive running away, provocation toward s ot her children, together with the problem of enuresis indicated that by the time he reached grade five he wa s in serious difficulties, emotionally.

Dr. Nurcombe testifi ed that the petitioner’s soci al history suggests that he had low serotonin levels as a child. Dr. Nurc ombe discussed the physical abuse the petitioner suffered from his parents, and he said it i s significant that the petitioner has no memory of his mother ’s physical abuse toward him. Dr. Nurcombe s tated that the evidence of abuse by the petitioner’s mother was gathered from the pe titioner’s siblings. Dr. Nurcombe believed that the petitioner repressed these memories. Dr. Nurcombe also considered significant two school r eports that described the petitioner as being in a “trance” and “out of touch at times.” According to Dr. Nurcombe, these reports are consistent with a dissociative tendency

.

Dr. Nurcombe testifi ed that the petitioner abused alc ohol in an effort to overcome his anger towar d his wives. Dr. Nur

combe explained that the more the petitioner drank, the more irritable and explosive he became because his seroto nin levels would eventually drop even further. Dr. N urcombe stated that low ser otonin, aggravated by alcohol abuse, di sinhibits and enables the rel ease of repressed emotional memories. Dr. Nurcombe testified that the petitioner’s hypoglycemia, in13

connection with the low ser otonin, intermittent explo sive disorder and alcohol abuse, would increase the petitioner’s lack of control.

Dr. Nurcombe testifi ed that he would not necessaril y have described the petitioner’s condition i n the same way as Dr. Ni chols. Dr. Nurcombe stated that the petitioner was in a “fugue state,” wherein the petitioner was in a continuing impulsive violent rage triggered by a momentary experience. When asked whether the pe titioner would have the capacity to conform his conduct to the requirements of the law, Dr. Nurcombe initially responded that the petitioner’s ability to do so would be significan tly impaired. Upon further questioning, he stated that assum ing the petitioner was intoxicated, hypoglycemic , and experiencing a low ser otonin level and intermit tent explosive disorder triggered by some event, the petitioner’s ability would be so significantly impair

ed as to prevent the petitioner from conforming his c

onduct to the requirements of the law.

Dr. Nurcombe testifi ed that although the petitioner di d not remember committing the murder,the petitioner did remem ber that he drank and took drugs earlier that evening. Dr. Nurcom be also stated that the petitioner was convicted in Louisi ana of a sexual offense about which he was able to remember th e circumstances surrounding the offense. Dr. Nurcombe testified that the ingestion of drugs and alco hol were the main factors that triggered the event in the pr esent case. Dr. Nurcom be admitted that he could not identi fy any emotional trigger,but he added that the trigger could be something minor that would not necessarily be identified by anyone else.

When asked by the court how an explosive disorder can be justified when there was evidence of plannin g in this case, Dr. Nur combe explained that because the petitioner drank so heavily and blacked out, something likely occurred during th is intoxicated state to trigger the petitioner’s emotional memories. According to Dr. Nurcombe, this in turn led the petitioner to act out his revenge fantasies ag ainst women. Dr. Nurcombe s tated that although the petitioner did not inform him of any revenge fantasies toward wom en because he is not consciousl y aware of them, the petitioner did describe r evenge fantasies and violent r eactions against people in pr ison who had slighted or humiliated him. Dr. Nurcombe explained that there is some sense14

of primitive self-pr

otective behavior when a per son is in a “fugue state” an d that the person’s behavior in a “fugue state” is more automatic and outside conscious awareness. Finally, Dr. Nurcombe testified that the petitioner’s “plain meanness” would be attributable to his mental disorders.

James Ball testified that he and Dwight Duncan were ap pointed to represent the petitioner afte r the trial court rel ieved the Office of the Publi c Defender. Mr. Ball testified that

he had been practicing law s ince 1961 and estimated that he had been involved in thousands of criminal cases, including several capital cases. Mr. Ball testified that he assumed the c ase was “pretty much wo rked up” when he took it over because the capital defense team at the Public Defender’s Of fice had the case for about thirteen months. Mr. Ball testified that the cour t appointed him to the case ar ound July 9, 1990. He said that th e trial was originall y scheduled to start on Septem ber 10, 1990, but they obtained a continuance until September 24, 1990. Mr. Ball further testified that Mr. Duncan was not available to assis t him until late August.

Mr. Ball testified that

he did not recall whether he was familiar with the filing of ex parte motions for expert services in capital cases. He said that Dr. Nichols evaluated the petitioner whil e the public defender represent ed him. Mr. Ball test ified that his first contact with Dr. Nichols was sometime in September and that Dr. Nichols suggested the possibility that the petitioner suffered fr om an organic brain impai rment, which severely limi

ted his ability to contro l his impulses when angr y. Mr. Ball testifi ed that Mr. Duncan filed a m otion for additional support services on September 29, 1990, upon receiving a letter fr om Dr. Nichols on Septem ber 28, 1990, explaining that the petitioner might be suffer ing from an organic brai n disorder. Mr. Ball testified that they wanted an M.R.I. and a Q-beam performed on the petitioner . He said that they filed the motion during the guilt phas e of trial, and the trial court denied it.

Mr. Ball testified that he received discovery from the state but that he did not receive the police repor ts from the case. Mr. Ball also testified that bo th Mr. Duncan and the public defender requested the petitioner’s school r ecords from Louisiana but never received them. Mr. Ball testified that he per sonally traveled to Louisi ana and met with the petitioner’s family for several hours but that they were not very cooperative. He15

said he asked to talk to the petitioner’s mother, but the family refused beca use they did not want her to be involved. Mr. Ball testified that although he attempted to have the entire family testify during the sentencing phase, only two of the petitio ner’s brothers appeared. Mr. Ball said h e did not meet with any of the petitioner’s former te achers or principals. However,he said he knew that the petiti oner had a troubled childhood, including problems in s chool. Mr. Ball said that from conversations with the petitioner and some of his acquaintances, he discovered that the petiti oner abused drugs and alcohol. He said he revi ewed the petitioner’s soci al history prepared for the postconviction hearing and testi fied that the information w ould have been helpful to the defense at trial. However, he stated that during sentenci ng, testimony revealed fact s about the petitioner’s childhood and alcohol and drug abuse, as well as his possible neurological problems.

Mr. Ball testified that

he met with the petitioner often before trial and was able to carry on intelligent conversations about the proof and a vailable defenses. He said he believed that the petitioner was competent to assist in his defe nse. Mr. Ball said he never considered the petitioner to be out of touch wi th reality during the tri al. He said he knew that the petitioner was taking antipsychotic drugs while in jail. He stated that the most damaging ev idence against the petitioner at trial was circumstantial: the fingerprints at the scene and the bite marks on the victim. Mr. Ball said that the state apparently lost one of the fingerprints taken from the screen in f ront of the victim’s house. M r. Ball testified that he and Mr. Duncan defended on the mer its of the case, meaning they made the state prove its case beyond a reasonable doubt because “that’s what [he] thought needed to be done.” Mr. Ball stated that the petitioner had been to the vict im’s residence before bec ause he was a friend of her grandson. He said that he and M r. Duncan filed a motion o n August 29, 1990, for expert services to assi st in rebutting the state’s experts on the fingerprint s, the bite marks, and the chipping ham mer, but the motion was deni ed. Mr. Ball testified that they fully discussed the c ase with the petitioner and that the petitioner did not objec t to the trial strategy. Mr. Ball testified that the pet itioner was not in favor of an insanity defense. He said the decision to forgo an insanity defense was made before Dr. Nichols sent him the letter suggesting that more testing might be helpful. Mr. Ball testified that Dr. Nic

hols examined the petitioner before trial and that Dr.Nichols stated16

that he believed the petitioner was competent and legally sane at the time of the offense.

Judge James C. Beasley, Jr., former Assistant District Attorney General, testified that he helped prosecute the petitioner’s case. Judge Beasley testified that he gave defense counsel a copy of hi s entire file when they w ere appointed to represent the petitioner. Judge Beasley testified that this was n ot his normal procedure but because petitioner’s counsel were appointed after the publi c defender was relieved prior to trial, he gave n ew counsel everything he had, except possibly the police reports. Judge Beasley recounted the mitigation proof presented by the defense, including the petitioner’s own testimony, as follows:

It was -- I mean, I think

you would have to be very cold not to have been moved by it. Even though I was the prosecutor

and even though I was seeking the death penalty, I felt it was moving tes timony. And I think I was concerned, especially when the jury stayed out in the sentencing phase for five or six hours, two or three times longer than they had in the guilt phase. It concerned me greatl y that they may be bei ng swayed by this proof that he had put on.

Judge Beasley testified that the state questioned the petitioner on crossexamination about the events on the night of the murder but that the petitioner testified that he did not recall anything about the offense. Jud ge Beasley testified that the jury appeared to be very emotional when they returned with thei r verdict. Judge Beasley testified that even if the defense had offered expe rt testimony during the guilt phase suggesting that the crime w as impulsive, he stil l would have argued to the jur y that the petitioner planned his acti ons and acted with premeditation.

Dr. Daniel A. Martell, a forensic neuropsychologist, testified that forensic neuropsychology encompasses the study of brain damage and it s effects on human behavior as it relates to the law. Dr. Martell stated that before his two-day evaluation of the petitioner, he reviewed the post-conviction testi mony of the petitioner’s ex perts, the petitioner’s prison rec

ords, the police reports, and selected portions of the t rial transcript and the medical records of the petitioner’s mother. Dr. Martell said he interviewed the petitioner and administer ed several tests, includi ng memory tests; a language t est; a psychological disassoci ation test; a battery of tests to detect malingering; tes ts17

measuring psychopathy, antis ocial behaviors and substanc e abuse; and the MMPI psychological personalit y test.

Dr. Martell testifi ed that the petitioner has low serotonin and hypoglycemia. However,he also testified that:

th e research that attempted to link low serotonin to vi olen t behavior I think is -- has been ov er repr esen ted to the Court, the strength of t hat asso ciation. A careful readi ng of the literature indicates that it’s not tied to violent behavior per se, but rather is tied to impulsive be havior, of which violenc e or aggression is sometimes a subset.
A careful examination of the trial record indic at es that Mr. Cazes’s beha vior in conducting the cr ime was not impulsive. And the finding from the r esearch is that low serotonin is related to i mpulsive criminal offending.
In fa ct, when you look at the criteria for the research groups, people were determined not to be impulsive if, number one, they knew th e victim, which Mr. Cazes did in this case; and number two, if there was evidence of premeditation in the conduct of t he violent crime. And I be lieve a reading of the record in dicate s that there was that level of premeditation, of non-impulsive, planned, goal-oriented behavior, and I’m prepared to give the Court myimpression from read ing the trial record of evidence of that lack of impulsivity.

. . . . The first issue is the fact that he selected a victim t ha t was known to him, which, as I mentioned from th e research studies, would be rule-out [sic] for impulsivity.
In addition, upon arriving at her residence, he obtained a chipping hammer, whic h I understand to be a welder’s tool, from his car, which he used both in attempting to gain entry to her residence as well as in the ass au lt on Ms. Skinner. The fact that he had the foresight to plan ahead and obtain this tool to help him indicates that he was notbehaving in an impulsive way, but rather in a goal-ori en ted way. He appreciated the nature and consequences of what he wanted to do, i.e., obtain entry into her locked house and gain access to her, and it also indicates an ability to control hi s behavior. He didn’t go rushing out of his car and banging on the door or s mashing out the window. He was careful in taking a

too l with him to perpetrate the crime.
T he fa ct that he unscrewed the light bulb illuminating the backyard is further in dication that he knew what he was doing or what he wanted to do was wrong and that he wanted to reduce his risk of detection by re duci ng the illumination in that situation. So it’s purpo seful behavior directed at avoiding detection of his behavior. Again, that is not impulsive. He didn’t go cracking at the door and s mas hing out the window until he reduced his risk. There’s evidence at the back door of evidence of trying to -- of pry marks to open that door. Failing . . . for some reason at being a ble to do that, whether it was m aking too much noise or he couldn’t get the d oor open, I don’t know, but18 for some reason he abandoned that effort, he then was able to plan an alternative strategy. He was able to shift from trying t o gain entry through the back of the hou se and go around to the front of the house, where he may have attempted to gain entry through the front door, w hich had an iron gate on it, and ultimately selected an accessible wi ndow as his mode of entry. The ability

to shift your behavior, to start in on one plan of attack, meet an impediment and t hen have the problem solving ability

to av oid that and go around and find another way to get in again is evidence that it’s not impulsive. This is focused, goal-oriented behavior, ai med at obtaining a specific reward; that is, getting access into her secured home and gaining access to her. Even upon selecting the window he still had to deal with the screens that had been installed there and had to remove the screens. Again his dog ged purs uit of his goal of gaining entry into the house at whatever means necessar y, mangling the screen, breaking out the wi ndow, all of these things are not impulsive, but instead are planned, focused,goal-oriented behaviors. Once inside the house, the evidence indic ates t hat he centered his behavior on the victim’s bedroom where she was. He is n o t elsewhere in the house breaking into things. E v erything is focused where the scene of the sexual assault takes place. Upon encountering Ms. Ski nner, he subdued her with blows to her head and b ody with t he chipping hammer. This was to render her compliant to his wishes, to reduce her ability to call the police or to scream or to call for help. This is behavior that’s very characteristic of sexual homicide offenders as they have been pro filed by the FBI’s Behavioral Science Unit and as they’ve published about the behavior of individua ls who do this. This is very typical behavior of sexual homicid e offenders to use this kind of blitz attack on the victim to subdue them and to get them to cooperate with their wishes. Again, this is not impulsive behavior. This is purposeful, goal-directed behavior

in order to permit him to accomplish the sexual act that he has come the re to do.
In addition, after subduing her, he engages in sexual behaviors that are particularly pleasing to him, including biting the victim in certain pl aces and posing her body in sex ua l positions that he found arousing andthat we re his favorite positions to do that. Aga in, this is practiced a nd purposeful behavior for his own sexual grati ficati o n, not impulsive behavior driven by some bi ochemical imbalance. Following the assault, the evidence indi cates that he ransacked her bedroom, pu lling things out of the drawers, staging the crime scene to perhaps appear as if a robbery had occurred. Again, this kind of stagi ng of the crime scene is not impulsive behavior, but rather is purposeful, goal- d irected behavior, intended to misdirect investigators who come on to the scene and make them think that there was some other goal in mind during the course of the assault. This type of forensic behavioral analysis to me indicates that this was not an impulsive crime, but rather was purposeful, focused, goal-directed, planned behavi or, and that would be inc onsistent

with the research literature on glucose me tabolis m19 and low serotonin that suggests that some of these offenders will engage in aggressiv e behavior that is impuls ive.

Dr. Martell testifi ed that the petitioner met the criteria for conduct dis order in childhood and antisocial personality behavior as an adult, but he testified that he disagreed with the diagnosis of intermittent explosive disorder because th is disorder is characterized by sudden, unexpected rage attacks tha t must occur outside the context of other specific mental disorders, including i ntoxication. Dr. Mart ell testified that according to the petitioner’ s history, the petitioner ’s rage occurred only w hen he was intoxicated. Dr. Mart

ell also disagreed that the crime was committed w hile the petitioner was in a diss ociative mental state. H e said that during his eval uation of the petitioner, the petitioner i nformed him that he had about tw enty blackout spells after which he would not remember anything and that they all o ccurred while he was abus ing either drugs or alcohol. According to Dr. Martell, the diagnosis of a dissociative disorder cannot be made if the disorder only occurs during a state of intoxication . Dr. Martell said that in addi tion, the petitioner scored below the cutoff for dissoc iation on the test he administered. Dr. Martell testified that the petitioner never engaged in a violent act during any of the other bl ackouts he experienced and that the petitioner did not claim to have amnesia dur ing previous violent acts . Dr. Martell said that this indicates that the petitioner was not i n a dissociative state at the time of the crime.

Dr. Martell testifi ed that contrary to Dr. Aubl e’s findings, he did not fin d any evidence of neuropsychologi cal impairment. Dr. Martell opined that the peti tioner was not giving his best efforts on the neuropsychological tests administered by Dr. Auble. Dr. Martell te

stified that the petitioner exaggerated his responses on s ome of the personality tests admi nistered by Dr. Auble, w hich could have caused her to misinterpret the results. Dr. Martell tes tified that the petitioner w as “emotionally labil e, that he’s demanding, that he can be hostile and irritable a nd evasive and suspicious and distrustful.”

Dr. Martell testifi ed that he reviewed Dr. Ni chols’ recommendation tha t the petitioner undergo further neu rological evaluation and st ated that even if further evaluation had been performed bef ore trial, the results would not have supported an20

insanity defense. Dr. M artell stated:

I think even if it had led to the full examination that has been done in the last year or two, because of the reasons I’ve outlined for the Court this morning, none of these factors would have been relevant to his ment al state. Serotonin doesn’t matter because the cr ime was not impulsive. He doesn’t meet criteria for intermittent explosiv e disorder or dissociation. He is an antisocial charac ter. And even if this additional testing were done , we’d be at thesame point that we are today, that it wouldn’t support it.
Dr. Nichols was the defense doctor, and he himself felt that he was not insane. He thought it would b e nice to know more about his neuropsychological status, but even if we had purs ued that at that -- if the Cour t had pursued that o r th e defense had pursued that at the time and it yielded the findings that we have today, it still wouldn’t have contributed to his defense or to mitigation evi dence.

Dr. Martell admitted

that he used his own method in stead of an official computer program from National Computer System s in scoring some of the t ests administered to the petiti oner. Dr. Martell al so admitted that more than one published authority exists regardi ng the results of some of the psychological tests admi nistered. The petitioner’s attorney attempted to discredit Dr. Martell’s conclusi ons. For example, after citing to one of the author ities upon which Dr. M artell relied that stated that a disorganized crime scene suggests an impulsive crime, the attorney asked Dr. Martell how he concluded that the petiti oner acted with purpose when the victim’s bedroom was in such disarray. Dr. Martell supported his conclusion with the fact that the petitioner tried to deter d etection by unscrewing the l ight bulb above the back door and by trying to pry the door o pen rather than kicking it open. Dr. Martell expl ained that the petitioner may have left the crime scene in disar ray to mislead the polic e about the purpose of the crime. Rega rding the petitioner’s l ow serotonin level, alcoh ol abuse, and hypoglycemia, the followi ng colloquy occurred:

ATTORNEY: So those three factors in combina tion are good predictors of the likelihood of violent impulsive behavior? DR. MARTELL: Of imp ulsive violent behavior,that’s correct.
AT TORNEY: That’s correct. And Mr. Cazes has all t hree o f those factors in evidence, do es he not?
DR. MARTELL: He has the factors, but in commit t ing this crime he was not impul sive. ATTORNEY: Well, again that goes to your definition of impulsivity.

. . . .21 DR. MARTELL: This i s based on an analysis of his behavior as he conducted the crimes. ATTORNEY: According to your notion of impulsivity? DR. MARTELL: It is m y opinion. That’s corr

ect. Regarding the petitioner’s treatment with Prozac w hile in prison, the foll owing colloquy occurred: ATTORNEY: And you asked him a bout how it had affected him,

correct? DR. MARTELL: I did. ATTORNEY: And he responded tha t it had calmed him down? DR. MARTELL: He did. ATTORNEY: Isn’t that in itself corroborative of the behavi oral effects of low serotonin in Mr. Cazes?
DR. MA RTELL: No, it is not, and let me tell you why. Mr

. Caz es, duri ng the period of time when he w as being treated with Prozac, he h ad historically refuse d any treatment or contact until these proceedings and Dr. Nurcombe’s diagnosis and the serotonin findings, at which time he did agree to take the Prozac. And he reports he felt better, and there is actually a note in t he chart that said there was some improvement in his behavior. However, at the same time that he wa s taking the Prozac he had at least two incidents where he flung feces o n correctional officers during the time when he is being treated. And then he later refused to take the medication and continued to h ave this kind of behavior, not necessarily the throwi n g feces, but acting out to the point where he had to be put in the administrative segregati on. And it’s also a consi stent pattern with his prior disciplinary history in the institution. So that to me show s that t here’s no corre lati on between the Prozac treatment and his impulsive act ing-outkind of behavior. I think it reflects antis ocia l personality, not serotonin depletion. COURT: You’re saying he felt better but he didn’t act any better? DR. MARTELL: That’s correct, sir. Dr. Auble was recalled and testified that she and Dr.Martell disagreed on whether the petitioner had int ermittent explosive dis

order, whether impulsi

ve behavior can be purposeful and whether ev idence of low serotonin, hy poglycemia and the findings in the petitioner’s social history are significant mitigating factors. Dr. Auble testified that the petitioner could have acted “purposefull y in the grip of an emotional impulse,” similar

to the actions of people with impulse control disor

ders like pyromania, kleptomania and pathological gambling. According to Dr. Auble, the crime in this case was the product of an emotional impulse with low ser

otonin, intoxication and22

hypoglycemia contributin g to impair the petitioner ’s inhibition of the emoti onal impulse.

Dr. Auble could not descri be or identify any trigger ing event that caused the petitioner to retreat to this emotional state. She testified tha t she and Dr. Martell also disagreed about what personality disorder the petitioner ha s. She said Dr. Martell believes the petitioner has antisocial personality disorder, whereas she bel ieves he has intermittent explosive disorder. Dr. Auble testified that the petitioner’s aggressive outbursts did not occur only when the petitioner was intoxicated. She also testifi ed that the petitioner could have been in a dissociative state while intoxicated . However, Dr. Auble said she could not identi fy any time during whic h the petitioner claimed t o blackout while not intoxi cated. After reviewing s ome of the physical exhibits from the original trial, Dr.Auble testified that the ver bal description of the cri me scene she received was sufficient for her to form an opinio n about the impulsive nature of the crime without having vi ewed the exhibits. Based upon th e foregoing proof, the trial court denied the post-convic tion petition.

Under the Post-Convicti on Procedure Act in effect at the time the petitioner filed his petition, the petitioner has the burden of proving the allegations in his petition by a preponderance of the evidence. McBee v. State , 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). The trial court’s findings of fact and conclusions of law in post-conviction cases ar e conclusive on appeal unless the appellate court finds that the evidence preponderates against the findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990); Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990)

. Furthermore, this cour

t may not reweigh or reev aluate the evidence or substitute its inferences for those drawn by the trial court. Black , 794 S.W.2d at 755. This inc ludes giving deference to the tria l court concerning witne ss credibility. Id.

I. RECUSAL AND REASSIGNMENT The petitioner contends that the trial judge conducting the p ost-conviction evidentiary hearing erre d by denying the petitioner’s motions to recuse the judge and to have the case reassigned to the division of the trial court to which it was originally assigned. The state contends that the issues are not prope rly before this court because they have been previousl y determined against the petitioner. Alternatively, the23

state contends that the trial court properly denied the pet itioner’s motions.

Initially, we address the state’s contention that the issues were previously determined against the petiti oner. T he state claims that the la w of the case doctrine precludes reconsideration of these issues on direct appeal because the petitioner previously sought and was den ied extraordinary revi ew of these issues pursuant t o T.R.A.P. 10. The grant of a T .R.A.P. 10 application is conditioned upon a showing by the appellant that “the lower court has so far departed fr om the accepted and usual course of judicial proc

eedings as to require imm ediate review” or that i mmediate review is necessary for compl ete determination of the acti on on appeal. If these requirem ents are not met, the application for permission to appeal is denied. However, this court does not necessarily reach the merits of the particular claims raised when it denies a T.R.A.P. 10 application. I nstead, the court decides wheth er the claims raised m ust be addressed in an interlocutor y or extraordinary fashi on rather than subsequently on direct appeal. In the present case, the court concluded tha t immediate, interlocutory review was not necessary . Although the court’s order refers to the particular issues raised, the court did not fully address the merits of the underlying claims. Accordingly, we conclude that these issues were not previously addressed and are no w properly before us. See , e.g. , State v. Ruane , 912 S.W.2d 766, 773-77 (Tenn. C rim. App. 1995) (addressing the merits on direct appeal even though the appel lant’s T.R.A.P. 10 application was denied and the order of denial referred to the un derlying issue raised).

A. Motion to Recu se The petitioner contends that bec ause the trial court judge w as employed by the Office of the Distr ict Attorney General duri ng the prosecution of the petiti oner on an earlier, separate matter, thereby giving the appearance of p artiality, the judge should have recused himself. Th e state contends that the trial court did not err by denyi ng the petitioner’s motion. W

e note that the trial court ha s discretion in determi ning whether to grant a motion to recuse. The court’s decision will not be reversed on appeal unless the face of the record reveal s clear abuse. State v. Hines , 919 S.W.2d 573, 578 (Tenn. 1995).

Canon 3(E)(1), Rule 10, Tenn. Sup. Ct. R., provides as follows:24 A judge shall disq ualify himself . . . in a proceeding in which the judge’s impartiality might reasonably be questio ned, including but not limited to instances where: (a) the judge has a personal bias o r prejudice concerning a party or a party’s lawyer, or perso nal k nowledge of disputed evidentiary facts concer ning the proceeding; (b) the judgeserved as a lawyer in the matter in controversy, or a lawyer wit h wh om the judge previously pr acticed law ser ved during such association as a lawyer concerning t h e matter, or the judge has been a material witness co ncerning it. The commentary to this section provides:

A lawyer in a

government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of

Section E(1)(b); a judge formerly employed by a government agency, however, should disqualify hims elf . . .
in a proceeding if the

judge’s impartiality might reasonably be questioned because of such associ ation.

We hold that the petitioner has not demonstrated that th e trial court abused its discretion in denying the motion to recuse. The record reflects that although the trial judge was present in the courtroom during a hearing in a previous pro ceeding involving the petitioner, the judge stated that he merely received a copy of a moti on filed by defense counsel becaus e the prosecutor handling the m atter was unavailable at the time. While the judge’ s name appears on the cover of the transcript in the earl ier proceeding, no other mention of the judge’s participation in the earlier proceeding exists. Moreover, the j udge stated that he did not remem ber or know anything about the petitioner or his cases.

Nothing in the record befor e us suggests that the trial judge’s impartiality could reasonably be questioned. The judge sufficiently exp lained why his name appeared on the cover of the trans cript from the earlier

proceeding involving the petitioner. Although the petitioner claims that the trial court’s bias against him is evidenced by the denial of the petitioner’s claims, adverse rulings by a court are generally insufficient gr ounds to establish bias. Alley v. State , 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994).The record is devoid of any suggestion that the trial judge demonstrated antagonism towar d the petitioner or express ed any opinion about the merits of the proceeding bef ore the hearing. See Id. at 821-22.25 B. Motion to Reassign The petitioner contends that hi s petition was transferr ed from one division of the trial court to another in violation of local court rules and that the trial court should have granted his motion to reassign the petition to the court in which it was originally filed. The state contends that the trial court properl

y denied the motion.

Initially, we note that so me discrepancy exists as to which court the petition was originally assigned. The petitioner suggests that the pe tition was originally assigned to Division IX of the Shelby County Criminal Court. However, the court records reflect that the pe tition was filed in Di

vision VII but that the tri al judge in Division VII had a conflict with the petitioner and asked Judge Cr aft of Division VIII to hea r the matter. The record shows that Judge Craft agreed, and the petition was he ard in Division VIII, the same division in which the or iginal trial was conduc

ted. However, the trial judge who presided o ver the trial in Div

ision VIII retired befor

e the petitioner filed the present petition.

Rule 4.03 of the Shelby County Criminal Court Rul es requires that a written order of transfe r be filed to transfer a c ase from one division to a nother. The record in the present case contains no written order of transfer. However, Rule 4.05 provides that “[t]he judges may transfer cases among themselves by mutual cons ent” without the consent of the parties or counsel. Our reading of the record sh ows that this is what occurred in the pr esent case. Obviously, the better practice would have been for a written order to hav e been filed. However, the petitioner has failed to dem onstrate that he was prejudiced by the lack of a written order

. See T.R.A.P. 36(b).

II. INEFFECTIVE ASSIST ANCE OF COUNSEL The petitioner contends that hi s trial attorneys wer e ineffective at both the guilt and sentencing phases of the trial. Specifically, the petitione r argues that his attorneys failed to conduct an adequate investiga tion into his background, including his mental and physical conditions. He argues that the attorneys’ deficien t performance precluded the jury from considering possible defens es during the guilt phase and important mitigating ev idence during sentencing. The state contends that the petitione r received the effective assi stance of counsel.26 Under the Sixth Amendment, w hen a claim of ineffectiv e assistance of counsel is made, the burden is upon the petitioner to show (1) that coun sel’s performance was deficient and (2) that the deficiency was prejudicial in ter

ms of rendering a reasonable probabi lity that the result of the trial was unreliable or the proceedings fundamentally unfa ir. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct.838, 842-44 (1993). The Strickland standard has been applied to the r ight to counsel under Article I, Section 9, of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n. 2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that attorneys should be held to the general standard of w hether the services rendered were within the r ange of competence demanded of attor neys in criminal cases. Further, the court stated that the range of competenc e was to be measured by the duties and criteria se t forth in Beasley v. United States , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing counsel’s

conduct, a “fair assessm ent of attorney performance r equires that every effort be made to eliminate the distorting effects of hindsigh t, to reconstruct the circumstances of couns el’s challenged conduct, and t o evaluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982).

We also note that the approach to the issue of the ineffect ive assistance of counsel does not have to start with an analysis of an attorney’s cond uct. If prejudice is not shown, we need not seek to determine the validity of the allegations about deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069.

Initially, we note that the petitioner contends that this court should adopt a de novo standard of review when addressing ineffective assistance of counse l claims in post-conviction appeals. H e argues that the trial cour t’s findings with respect to ineffective assistance ar e not binding on appeal because the i ssue involves a mixed question of law and fact.27 In Henley v. State , 960 S.W.2d 572, 578-79 (Tenn. 1997), our supreme court stated the following relative to review of a trial court’s post-c onviction determinations followi ng an evidentiary hearing:

The f indings of fact of the trial judge on a petitioner for postconviction relief are afforded the weight of a jury verdic t and are conclusive on appeal un less t he evidence in the record preponderatesa g ainst those findings. [ Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996)]; Cooper v. State , 849 S.W.2d 744, 746 (Tenn. 1993); Butler v. St ate , 78 9 S.W.2d 898, 899 (Tenn

. 1990). In evaluating whether the evidence preponderatesagainst the trial court’s findings, we are guided by longstanding rules of appellate procedure. Appellate court s in this State d o not rew eigh or reevaluate the evidence. We can not substitute our inferenc es for those d rawn bythe trial judge. Moreover, questions conc erning the credibility of witnesses, the weight and value to be given their testimony, and the factual issues raise d by the evidence are to be resolved by the trial judge. Fina lly, the party seeking to overturn the fi ndings ofthe trial judge bears the bur den on appeal of demonstrating why the ev idence contained in the record prepondera tes against the findings of the tr ial judge. Bolin v. State , 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966); Cooper , 847 S.W.2d at 527; Blackv. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). It is with these principles in mind that we evaluate thefindings of the trial cour t and the Court of Crim inal Appeals with respect to the petitioner’s claim o f ineffective assistance of counsel at sentencing. The court stated that the issue before it was “whether the evidence in the record preponderates against the tri al court’s finding that the petitioner failed to establ ish that he was denied his constituti onal right to effective ass istance of counsel.” 960 S.W .2d at
580. See also Richard C. Taylor v.State , No. 01C01-9709-CC-00384, Williamson County (Tenn. Crim. App ., July 21, 1999) (citin g Henley and holding that the appropriate standard of review is whether the evidence prepond erates against the trial

court’s findings). In l ight of Henley and Taylor , we reject the petitioner ’s claim that our review should be de novo

.

We are aware, however, that the Tennessee Supreme Court recently used a de novo review standard in a dir ect appeal of a conviction w hen the issue of the effective assistance of coun sel was presented. See State v. Brenda Ann Burns , No. W1996-00004-SC-R11-CD,Henry County, slip op. a t 12 (Tenn. Nov. 8, 1999) (f or publication). Given the s ummary fashion in whic h the court addressed the standar d of review in Burns , we seriously doubt that i t intended to overrule Henley and thirty years of similar post-convi ction jurisprudence. In a ny event, even if we are to us e a de novo28

standard relative to the question of whether the petitione r received the effective assistance of counsel, we do not believe that the petitione r received the ineffective assistance of counsel, giv en the underlying facts as foun d by the trial court.

A. Guilt Phase–Failure to Investigate The petitioner contends that hi s trial attorneys wer e ineffective during the guilt phase of his trial because they failed to investigate the petitio ner’s low serotonin and blood sugar levels and to explore a possible insanity defense . He argues that his attorneys were ineffectiv e by defending the case solely “on the merits.” The s tate contends that the trial court correctly found that the petitione r received the effective assistance of counsel.

The trial court found that the petitioner’s attorneys rendered effect ive assistance, making the fol lowing findings and conclus ions:

Petitioner was examined t wice at the request of his attorneys by a competent forensic psyc hologist, Dr. Wyatt

Nichols, who would not support a defense of insanit y. Alth ough not called by either side at the hearing on this petition, Dr. Nichols testified at petitioner’s trial that at the time of the trial he had been practicing clinical

psychology for elevenor twelve years, with specialized training i n forensic psychology. T he St ate stipulated to his qualifications, an d he was accepted by the trial court as an expert in the field of forensic psychology. The constitutional requirements of Ake v. O kl ahoma , 470 U.S. 68 (1985), were satisfied. Dr. Nichols testified at petitioner’s trial that
A.

. . . . It was my opinion that [petitioner] was not criminally insane and did not appear to me to suffer from a mental illness that was suffi cient for me to be concerned. Sometimespeople who are re a lly severely mentally ill wil l say they didn’t do it, but in fact they may have and there’s a real severe illness there that will interfere with their ability to communicate. But I did not see that. So it was myfinal opin ion that he failed the Graham Vs. State test, and s o b asically he was criminally responsible.

Q. Does that mean that he -- that you didn’t see any psychological problems at all?
A. No. It

doesn’t mean that. It just means that he didn’t meet the Graham Vs. State criteria that I mentioned earlier as far as a mental illness.

There was no indication at the time of petitioner’ s trial that Dr.29 Nichols’ opinion was in any way impe achable, and the attorneys theref ore had no “specialized need” for further evaluation that they could have given the t rial court on the issue of an insanity defense d uring the guilt phase . . . .
Mr. Ball . . . testified that in his e xperie nce, insanity d ef enses aren’t very successful , and that he would have to basically admit to the murder, but say petitioner was not legally responsible for it. On redirect, he testified that even though he had no expert proof to rebut the fingerprint evidence, the proof at the tri al was th at petitioner had been at the victim’s house before, having known the victim and having hung ar ound with her grandson. (The garage petiti oner worked at was owned by Mike Lucas, the employer, fri end and drug partner of petitioner. He was also the step-grandson of Ms. Sk inner.) Mr. Ball felt the case could have been won.

. . . . Eliminating the “ distorting effect of hindsi ght, to reconstruct the circumstances of co u nsel’s challenged conduct, and to evaluate the conduct fro m co unsel’s perspective at the time,” Strickland at 689 and Hellard

at 9, it would have been extremely risky to have attempted a defense of insanity, in light of

the entirely circums

tantial proof offered, even if an expert witness who would support a n insa nity def ense cou ld have been found, knowing that Dr. Nichols in that event would then be called as a state’s witness against the petitioner. This Court finds that

not only were petitioner’s attorneys not deficient in their performance during the guilt phase on the issue of insanity, but that there ha s also bee n no showing of prejudice to petitioner.

. . . . Petitioner

has completely failed to carry his burden of proving that his attorneys 1) sho u ld have known to file a motion for

additional psychological assistance on the issue of insanity, 2) that his attorneys coul d have shown a specialized need for that assistance, if r equested, 3) that the exp ert assistance, had it been granted, would have r evea le d a chemical imbalance in petitioner’ s system, and 4) if it had, that a viable theory of [insanity] cou ld have been made out to the jury that would have been better than the defen se actu ally tried. Petitioner has not shown that th ere is a reasonable probability

(a probability sufficient to undermine confidence in the ou tcome) that but for counsel ’s not asking for additiona l psychological assistance, the result o f t he guilt phase would have been differ ent

. Strickland , at 694. Petitioner has not established either prong of the Strickland test, either

deficiency or prejudice, in the guilt phase, and therefore this allegation is without merit.

We hold that the petitioner has failed to establish that the record preponderates against the tri al court’s findings. M r. Ball testified that the petitioner could carry on intelligent conversations and that the petitioner did n ot act out of touch with reality. Mr. Ball further testified that the petitioner did not want to pursue an insanity defense. The petiti oner was examined twice by Dr. Nichols, and although he30

recommended further testi ng to discover the extent of th e petitioner’s mental cond ition, he stated that his findings w ould not support an insanity de fense. Thus, the petitioner has not shown that his attorney s would have been able to demonst rate a specialized need for further evaluation of the petitioner to pursue an i nsanity defense.

B. Sentencing Phase–Fail ure to Investigate and Request Expert Services The petitioner contends that his attorneys were ine ffective during the sentencing phase of trial. H e argues that the attorneys fai led to investigate fully the petitioner’s background and f ailed to seek expert mental services for mitig ation until the trial had already begun. The petitioner argues that the j ury might have returned a l ife sentence if it was presented with the evidence regarding the petitio ner’s low serotonin level, hypoglycemia and al cohol addiction, as well as more detailed informa tion about the petitioner’s tumultuous relationship with his family, particularl y his mother. The state contends that the attorneys were not deficient and that th e petitioner has failed to demonstrate prejudice. R egarding the presentation of mi tigating evidence during the capital cases, our supreme court has stated as follows:

Where the alleged prejudice under Strick l and involves counsel’s failure to present mitigating evidence in the penalty p ha se of a capital trial, sev eral factors are significant. First, courts have analyzed the nature and extent of the mitigating evidence that was available but not presented. Second, court s have considered whether substanti ally similar mitigating evidence was presented to the jury in either the guilt or pena lty phase of the proceedings. Finally, the courts hav e considered whether there was such strong evidence of aggravating factors that the mitigating evidence would not have affected the jury’s determination. Goad v. State , 938 S.W.2d 363, 371 (Tenn. 1990) (citations omitted).

First, we will address the petitioner’s contention that his attorneys were ineffective for failing to conduct further investi gation into his social background for mitigation evidence at the s entencing phase. We believe that the petitioner has demonstrated neither defici ency nor prejudice. With respect to the attorneys’ failure to secure the petitioner’s school records, Mr. Ball testified that both he and the public defender requested but never rec eived the materials. M r. Ball testified that he went to Louisiana and spoke with the pet itioner’s family but that he was not allowed acces s to the petitioner’s mother. He testified that during hi s interviews with the petitioner’s father and brothers, he learned that the petitioner was severely abuse d as a child. Defense31

counsel presented this eviden ce during the sentencing phase of the trial, along with evidence of the petitioner’s enuresis and the problems associated with it and the petitioner’s abuse of alcohol and drugs. The trial cour t’s order denying post-co nviction relief states the following:

This brief summary of the hi gh points in the mitigation evidence presen ted in petitioner’s trial does not adequately reflect the quality

or extent of the proof offered. Altogether, petitioner

presented 167 pages of tra nsc ript in mitigation during the sentencing phase. Much of it was highly emotional, and even from a cold reading of the transcript seven years later this Court was moved by petitioner ’s acco unt, and his brothers’ accounts, of his tragic childhood. The petitioner has failed to show that his attorneys di d not adequately investigate and present his social hist

ory, nor has he shown a reas onable probability that, had th ey performed further investigation, the outcome of the sente ncing phase would have been different.

With respect to the petitioner’s contention that his attorneys were ineffective for failing to request expert mental ser vices for mitigation u ntil after the trial had started, the trial court found that the attorneys w ere deficient. The trial

court stated that because Dr. Nichols suggested additional neurologic al testing to explore the petitioner’s mental condition, the trial judge “would most likely have given the attorne ys funds for this neurological workup and also a continuance to obtain it.” However, the trial court found that the pet itioner failed to demonstr ate prejudice. The trial court determined that all of the pr oof raised at the evidentiar y hearing was presented at the mitigation hearing, except for the evidence of the petiti oner’s hypoglycemia, low serotonin, and the effects of the two when combined with al cohol and drugs. The trial court determined that even if the petitioner had been further evaluated, it is unlikel

y that his serotonin and glucose l evels would have been tested. T he trial court found that substantially similar mitigating evidence was presented at trial in that Dr. Nichols testified that the petitioner may have had an organic brai n impairment that interf ered with his ability to co ntrol urges. Finally,the trial court determi ned that the strong evidence of other aggravating f actors shows that the mitigating evidence would not have affected the jury’s deter mination. See Goad , 938 S.W.2d at 371.

The record supports the tr ial court’s finding of de

ficient performance. Th e32

petitioner’s attorneys or iginally made an ex parte motion for expert servi ces that was denied for failure to compl y with Rule 13, § 2(B)( 10), Tenn. Sup. Ct. R. Then,in what the trial court characterized as a last ditch effort to secure expert services, the attorneys presented a letter from D r. Nichols to support th eir specialized need for evaluation, and they requested a continuance in o rder to conduct the evaluation . However, they did not present the letter until the fifth day of trial. As the trial court stated in its order denying the post-conviction petiti on, “[w]hen proof of a special ized need is not obtained until the fifth day of trial, howev er, there is not much li kelihood that a continuance wi ll be granted.” The petitioners have provided no reason why th is letter or an affidavit from Dr. Nichols was not pr

esented before trial. Fail ure to investigate, follow up, and present evidence of a history of m ental problems for use at the sentencing phase of a capital case is deficient perfor mance. Cooper v. State , 847 S.W.2d 521, 530-32 (Tenn. Crim. App. 1992).

Despite the attorneys’ defi ciency, the petitioner has failed to demonstrate that the record preponderates ag ainst the trial court’s determination of no prejudi ce. Most significant is the

fact that the petitioner has n ot shown that if the evaluatio n suggested by Dr. Nichols had been performed, evidence of the pe titioner’s hypoglycemia or low ser otonin would have been discover ed. The trial court found as follows: [A]t the time of petitioner ’s trial in 1990, the “l ow serotonin” defense and the “low blood sugar” defense were relatively unknown. There were only three significant articl es produced by petitioner that had been published in this area in scientific journals. . . . It is clear that the relationship between serotonin and impulsive behavior was not widely known in 1990. Dr. Auble had not yet attended any seminars in forensic psychology at the time of petitioner’s trial, and Dr. Martel l had not yet published any of hi s articles on the relationship between ser otonin and violent behavior. Dr. Nichols had suggested to the attorneys that a “Q Beam” or an “MRI” be performed . . . . Both Drs. Auble and Martell agree that those tests would hav e turned up nothing useful in petitioner’s defense had the attorneys requested and obtained funds for them. No one at any time ever suggested to petitioner’s trial attorneys that they test the ch emical balance of his spinal flui d. They could hardly have been ex pected to have been familiar with 5-Hydroxyindoleacetic Acid, or to have read any of those three articles on their

own. In light of the fact that the “ low serotonin” and “low blood sugar” research and theories were not widely known and that Dr. Nichols’ sugges ted evaluation did not contempl ate33

testing for such imbalances, the petitioner has not demonstrated a reasonable probability that but for hi s attorneys’ deficiency in failing to request exper t services in a timely fashion, the outcom e of the sentencing phase would hav e been different.

In making this determination, we are also mindful of the principles set for th
in Goad . The trial court made the following determinations with respect to these principles: The first question to be consi dered unde r Goad . . . is the nature and extent of the miti gating evidence that was available but not presented. Except for proof at the hearing on this petition of

petitioner’s low sero

tonin levels and low

glucose toler ance level, and their effect on petitioner when combined with drug and alcohol use, a l l other proof of mitigati on raised by petition er in the hearing on this petition had already been presented at tr ial by hi s attorneys, in one form or another, through jail records, lay w itne sses, family members of petitioner, and Dr. Nic

hols. . . . The secon d consideration under Goad is “whether substantially similar mitigati ng evidence was presented to the jury in either the guilt phase or penalty pha s e of the proceedings.”The possibility that petitioner had these pro blems due to a medical or psychological condition wa s presented to the jury during mitigation proof by Dr. Nichols. He testified that
Mr. Cazes’s behavior as far as his history of chemical dependency which causes brain dama ge over an extended period of tim e l ik e he’s abused chemicals, plus ev en be fore he started abusing chemicals he had a l ot of difficulties

with impulse control, rages , becoming angry for no apparent reason, a nd be coming – going into a rage and being destructive at times. And people who h ave these problems, a fairly high number of them hav e neurological problems. What I mean by neurological problems, some kind of organic impair ment with their brain that interferes with their ability to control an urge, a momentary urge. Not nece ssarily that

it would interfere with their abil it y to plan out something over a long term, but any

time their affect or their feelings are elevated, beit an xiety, be it anger, be it excitement, they’re happy about something just like alittle child at

Christmas may get into a lot more trouble because they’ re re al excited about things, well, they’re having i mpulse control pro ble ms. Well, that’s what I’ m talking about here, that when his affect is up, his feeling level is up, then he may have m ore difficulty or he does have more difficulty controlling himself. There’s a possibility that that is due to some brain impairment or organic impairment

.

. . .34 Even though we know now, afterpetitioner has been thoroughly tested, that he had no significant brain dam age due to drug use or head trauma, still the jury was told that it was a distinct possibility that many of his problems were ca used by a condition out of his control. The third Goad

consideration is “whether there was such strong evidence of aggravating factor s that the mitigating evidence would not have affect ed th e jury’s determination. ” Assuming therefore, that the attorneys had properl y and timely requested and received funds, and time,to further evaluat e petitioner, and that they had in fact found an expert who was acq ua inted with the relationship betw een serotonin and impulsive behavior, and petitioner deci ded to present that mitigation evidence to the jury (that a combina ti on of low serotonin, low blood sugar, extensive substance abuse, tragic childhood and hatred of women had all combined to make petitioner

not responsible for his a ctions), the state

would have been able to rebut that the ory wit h petitioner’s history of continued violence in a prison setting while awaiting trial, during a time when he had a raised s erotonin level, was not

on junk food, and was no t using alcohol or illegal drugs. This violentbehavior would most likely have alienated the jury. An important

part of this theory of petitioner also concerns his hatred of women and his contin ued violence toward them, a rage which was “triggered” by an “e motio nal memory,” compelling him to rape and murder M s. Skinner in a “fugue state.” This would have also tended to alienate the jury, and in view of the aggravating circumstance offered in this trial that peti tioner

had been convicted of the Aggravat ed Rape an d Attempted Murder of another woman which was committed after the murder of Ms. Skinner, may have practically ensure d a sentence of death.

. . . . Considering the nature of the omitted mitigati on, n ecessarily involving petitioner’s hatred of wome n an d his lack of control even when not on drugs, alcohol, junk food and low serotonin, as c ompared to the strong aggravating factors [1) “heinous, atrocious and cruel,” in that the cr ime involved a driving to the scene, a systematic, preme ditated breaking into the home of a known elderly victim, an extremely bloody, brutal murder and rape

. . . ., plus 2) “prior convictions for crimes of violence” in that petitioner, after raping and killing Ms. Skinner, committed and was convicted of another Ag gravat ed Rape and Assault to Murder] petitioner has f ailed to show prejudice. . . . “Given the overwhelming aggravating factors, there is no reasonable probability

that the omitted evidence would have changed the conclusion of the jury tha t the aggravating circums tances outweighed the mitigati n g circumstances and hence, the sentence imposed.” Strickland , at 697. Considering the petitioner’s inability to demonstrate even a possibility that serot onin and blood sugar testing would h ave been performed and consider ing the principles set forth in Goad and their application to thi s case, we conclude that the petitioner has not demonstrated prejudice.

C. Petitioner’s Right to a Limited Cross-examination35 The petitioner contends that his attorneys were ineffective for failing to protect his right to a limited cross-examination during the sentencing phase of trial. He contends that he wanted to testify at the sentencing phase about his background without being subject to cross-examination regarding details of the crime and th at his attorneys filed a motion t o prevent the state from ask ing questions about the crim e, which the trial court denied. The petitioner argues that his attorneys offe red no support for their motion and inadve rtently waived the issue for appeal by asking the petitioner what he remembered about the day of the murder.

On direct appeal, our suprem e court acknowledged that “i n the limited sphere of a death penalty sentenci ng hearing, a capital defendant’s testimony regarding mitigating factors that ar e wholly collateral to the merits of the charges a gainst him does not operate as a complete waiver of the privilege against self-incrimination.” Cazes , 875 S.W.2d at 266. Nevertheles s, the court determined that the petitioner was not prejudiced by the cross-examination because the petiti oner could not recall anythi ng about the crime. Id. Similarly, in denyi ng post-conviction reli ef, the trial court concl uded that the “state’s cross-examination was therefore effectively limited by petitioner’s testimony that he lacked any knowledge of the circumst ances of the offense.” The petitioner has not demonstrat ed that the record preponderates against this finding.

D. Conceding Premeditation The petitioner contends that counsel were ineffectiv e during closing argument at sentencing because they menti oned that the jury had already f ound premeditation. The petitioner contends that bec ause he was convicted of felon y murder, which does not require premeditation, this erroneous reference by counsel resulted in pre judice. The petitioner offers no supp ort for this argument, and we hold that it is without merit. A review of the closing ar gument shows that counsel focused not on the crime itsel f but on mitigation. The petiti oner has not demonstrated prej udice.

E. Failure to Raise all I ssues on Appeal The petitioner c ontends that his attorneys wer e ineffective on appeal for failing to raise all issues. Specifically, he contends that the attorneys should h ave argued that (1) the jury’s finding of the “prior violent felony” aggravating circumstance36

violated the ex post facto and due process clauses of the Tennessee and United States Constitutions, (2) the reasonable doubt jury instruction violated the d ue process clause of the United States Constitution, and (3) the manner in which appellat e courts conduct harmless error analys is in capital cases vi olates state guarantees of tri al by jury and federal guarantees of due proces s. Our supreme court has previously determined that these issues are without m erit. See King v. State , 992 S.W.2d 946 (Tenn. 1999); State v. Bigbee , 885 S.W.2d 797, 817 (Tenn. 1994) ; State v. Nichols , 877 S.W.2d 722, 734 (Tenn. 1994); State v. Howell , 868 S.W.2d 238 (Tenn. 1993).

III. IMPARTIAL JURY The petitioner contends that he was denied the right to an impartial jury because the trial court r efused to allow individual , sequestered voir dire c oncerning pretrial publicity. In conjunction, he argues that hi s attorneys were ineffecti ve for failing to include examples of pretrial publicity in the record for appeal.

With respect to the petitioner’s claim of ineffective assistance of counsel, the petitioner claims th at his attorneys failed to include examples of the pret rial publicity in the record for appeal. The petitioner argues that this precluded the supreme court from adequately addressing the jury voir dire is sues on appeal. However, thi s particular claim was neither included in the post-convicti on petition below nor address ed by the trial court. Accordi ngly, this issue is not properly before this cour t and is waived. See Tenn. Code Ann. § 40-30-112 (1990) ; Butler v. State , 789 S.W.2d 898, 902 (Tenn. 1990); Brown v. State , 928 S.W.2d 453, 457 (Tenn. Cr im. App. 1996). Regardles s, the petitioner has failed to est ablish prejudice.

“Individual voir dir

e is mandated only when there is a ‘significant possibility’ that a juror has been exposed to potentially prejudicial material.” State v. Harris , 839 S.W.2d 54, 65 (Tenn. 1992) (citing State v. Porterfield , 746 S.W.2d 411, 447 (Tenn. 1988)). The decis ion of the trial court to deny individual voir di re of the venire remains withi n the sound discretion of the c ourt and will not be rever sed on appeal absent a finding of manif est error. Howell , 868 S.W.2d at 247-48. The petitioner must demonstrate that the jurors were biased or prejudiced against him37

because of the pretrial publi city. State v. Melson , 638 S.W.2d 342, 360-61 (Tenn. 1982). Mere exposure to new s accounts of the incident does not, standing alone, establish bias or prejudi ce. Prospective jurors can have knowledge of the facts surrounding the crime and still be qualified to si t on the jury. State v. Bates , 804 S.W.2d 868, 877 (Tenn. 1991). T he test is “whether the ju rors who actually sat an d rendered verdicts were prejudiced by the pretrial publicity.” State v. Kyger , 787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989).

In support of his claim, the petitioner relies upon State v. Claybrook , 736 S.W.2d 95 (Tenn. 1987) and State v. Shepherd , 862 S.W.2d 557 (Tenn. Cri m. App. 1992). In both of these cases, the court determined that the tr ial court’s refusal to

allow individual, sequestered voir dire was prejudicial error because the prospective jurors admitted that they knew the defen dants had been charged with or c onvicted of other crimes. In Claybrook , the court determined that the need to conduct individua l, sequestered voir dire becam e apparent “when it was mad e known to the trial court that 80% of the first group of pr ospective jurors had heard information regarding the defendant’s case, two member s of that initial panel m entioned in the presence of other prospective jurors that they had heard that the defend ant had been in prison before.” 736 S.W.2d at 100.

In the present case, however, the jurors were not questioned abo ut their knowledge of the petitioner’s previous record. Additionally, as the trial court note d in denying post-conviction relief, “[o]f the prospective jurors examined, appro ximately twenty-five percent had been exposed to some pretrial publicity abou t this case . . . .” The record establishes that only two of the jurors w ho heard the petitioner’s cas e had been exposed to pretrial publi city, and unlike Claybrook , no evidence exists that the jurors heard informati on that the petitioner had previ ously been in jail. The em paneled jurors stated that they could render an impartial verdict based solely upon the e vidence presented at trial. Thus, the petitioner has not demonstr ated, as is required, that the jurors who actually hear d his case were biased or prejudiced because of pretri al publicity.38 Finally, we note that in hi s reply brief, the petiti oner asserts in a footnote that Rule 606(b), Tenn. R. Evid., effectively precluded him from demonstrating prejud ice by disallowing the testi mony of jurors at the evi dentiary hearing. He rel ies upon Henley v. State , 960 S.W.2d 572 (Tenn. 1997). In Henley , the petitioner presented affidavits from jurors at the evi dentiary hearing stating that they were swayed against the petitioner because his mothe r did not testify during the sentencing phase of a capital trial. The court concl uded that the affidavits were not admissible because they “related to the precise subject mat ter about which a juror i s strictly forbidden f rom testifying by Rule 606(b)- the effect of the mother’s failure to t estify on the jury verdi ct.” 960 S.W.2d at 581. However, we do not bel ieve that the holding in Henley precludes the use of juror affidavits to pro

ve prejudicial exposure to pretrial publicity. See , e.g. , Claybrook , 736 S.W.2d at 100-01 (holding that jurors’ testimony regarding exposure to pretr ial publicity allowed at mo tion for new trial); State v. Robert Emmet Dunlap, Jr. , No. 02C01-9801-CC-00009, Henry County (Tenn. Crim. A pp. Sept. 21, 1998) (holding that the “extraneous prejudici al information” excepti on to the admissibility of juror testimony includes a juror’s per

sonal knowledge of an accused’ s prior criminal r ecord).

IV. USE OF AGGRAVATING CIRCUMSTANCE The petitioner contends that the use of his previous c onvictions for aggravated rape and assault with intent to murder, based on c onduct that occurred after the present offenses but f or which the petitioner w as convicted before the present offenses, violates the due proc ess and ex post facto clauses of the state and federal constitutions.

The petitioner committed the crimes against Ms. Skinner at issue in this case in April 1988. In June 1989, th e petitioner committed s eparate offenses of attempted murder and aggravated rape, and he was convicted of these cr imes before the trial i n

the present case. The state r elied upon these previous conv ictions as an aggravating circumstance. See Tenn. Code Ann. § 39-2-302(I)(2).

The petitioner contends that using convictions for crimes committed aft er the offense in the present case to en hance his punishment in the pr esent case violates due39

process and ex post facto . Our supreme court rej ected the same argument in State v. Caldwell , 671 S.W.2d 459, 465 (Tenn. 1984) . In Caldwell , the court stated:

The Defendant avers that it was error for the Trial

Cou rt to allow the introduction of his convi ction for first degree murder in the Lipford case as an aggravating circumstance in this case, since the Lipford murder occurred after the [murd erin this case].

. . . . Caldw ell claims that using the subs equent murder as an aggravating circu m stance permits an ex post facto law. The language in the statute, “previousl y convicted” clearly indicates that the date of the conviction, not of the commission of the crime, is the important factor. The order in which the cri mes were actually commit

ted is irrelevant, as l ong as the convictions have beenentered before the sentencing hearing at which they are introduc ed into evidence. Id. at 464-65; see also State v. Hodges , 944 S.W.2d 346, 357 (Tenn. 1997) ( “We have previously held on numerous occasions that so long as a d efendant is convicted of a violent felony prior to the sentencing hearing at which the previous convictio n is introduced, this aggravating circumstance is appli cable.”). In the present case, the aggravating circumstance was in effect at the time the petitioner committed the crimes against Ms. Skinner. In ad dition, Caldwell provided further notice to the petitioner that future convictions could be used to enhance punishment, regar dless of when the criminal acts underly

ing the convictions were committed. This iss ue is without merit.

V. EXCULPATORY EVIDENCE The petitioner contends that the state withheld polic e reports containing exculpatory information in violation of Brady v. Maryland , 370 U.S. 83, 83 S. Ct. 1194 (1963). He argues that the i nformation in the police r eports was exculpatory, c laiming that it provided substantial clues that should have led the trial attorneys to inves tigate petitioner’s mental condi tion. The state contends that th e prosecutor was not requir ed to disclose the complete pol ice investigation and that, i n any event, the information contained in the reports was not exculpatory.

The state has a duty to fur nish exculpatory evidence t o the accused, and any “suppression by the prosecution of evidence favorable to an accu sed upon request violates due process wher e the evidence is material either to guilt or punish ment, irrespective of the good faith or bad faith of the prosecution.” Brady , 373 U.S. at 87, 8340

S. Ct. at 1196-97. This evi dence may pertain to the guilt or innocence of the accused or to the punishment which m ay be imposed if the accused is convicted of the crim e. See State v. Marshall , 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). Moreover, this duty to disclose extends to all favorable information regardless of whether the evidence is admissible. Branch v. State , 469 S.W.2d 533, 534 (Tenn. Cr im. App. 1969). Although Brady

does not require the state to i nvestigate for the defendant, it does burden the prosecution with the responsibility of dis closing statements of witnesses favorable to the defense. State v. Reynolds , 671 S.W.2d 854, 856 (Tenn. Cr im. App. 1984). The duty does not extend to information that the defense al ready possesses or is able to obtain or to infor mation not in the possession or control of the prosecuti on. Banks v. State , 556 S.W.2d 88, 90 (Tenn. Cr im. App. 1977). Simila rly, there is “‘no constitutional requirem ent that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.’” State v. Walker , 910 S.W.2d 381, 389 (Tenn. 1995) ( quoting Moore v. Illinois , 408 U.S. 786, 92 S. Ct. 2562 (1972)).

In order to establish a Brady due process violation , the following elements must be proven:

(1) The defendan t mus t have requested the informati on (unless the evidence is obviously exculpatory, in which c ase the State is bound to releas e the information whether requested or not); (2) The State must have suppr essed the information; (3) The information must have been favorable to the accused; and (4) The information must have been material. State v. Edgin , 902 S.W.2d 387, 389 (Tenn. 1995) . In Edgin , our supreme court adopted the following standard for materiality:

[T]here is constitutional error “if there is a reasonable probability

that, had the evidence been discl os ed to t he defense, the result of the proceeding would have been different.”

. . . . “[The] touchstone of materiality is a ‘reasonable probability’ of a different result, and the adjective is important. The questi on is not whether the defendant would more likely thannot have received a different verdict with the evidence, but whether in it s absence he received a fair tri al, understood as a trial r esulting in a verdict worthy of confidence. A ‘reasonable probability ’ of a different result is accordingly shown when the Government’s41 evidentiary suppress ion ‘undermines confidence in the outcome of the trial.’” 902 S.W.2d at 390 ( quoting Kyles v. Whitley , 514 U.S. 419, 434, 115 S. Ct. 1555,1556 (1995)).

The petitioner’s attorney testified at the evidentiar y hearing that he never received copies of the poli ce reports. Gloria Shettles testified that she inter viewed the persons named in the report and that they stated that the petiti oner was an excellent worker; did not take criticism well; was impatient, emotional and impulsive; and would become angry and out of control when he was drinking. Th e trial court dismis sed the claim, finding that the petitioner did not specific ally define his issue and offered insufficient proof to support his allegations.

We believe that the petitioner ’s claim fails becaus

e he has not established that he was unable to obtain the i nformation himself, that the evidence was favorable, or that the information was material. The information contained in the police reports is general background informati on of the petitioner’s demeanor, provided by the petitioner’s friends, ac

quaintances and former empl oyers. Because the inform ation came from people the petitioner knew, there is no reason why he could not ha ve obtained the information himself. Additionally, the information doe s not contain direct exculpatory information. Despite the petitioner’s argument that the info rmation could have led his attorneys to investigate the petitioner’s mental status fu rther, the police reports do not provide any addi tional information of whi ch the attorneys were not already aware at trial.Furthermore, we beli eve that the petitioner has not demonstrated a reasonable probability that the result of the proceeding would have been different had his attorneys been aware of the repo rts. We have previously determined that the trial court properly found against the petition er regarding his claim of ineffective investigati on into a possible insanity defense. Thus, the petitioner has failed to show that the information is material.

VI. REASONABLE DOU BT JURY INSTRUCTI ON The petitioner c ontends that the reasonable doubt jur y instructions at both phases of his trial wer

e unconstitutional because the t rial court used the term “moral42

certainty” and excluded fr om the definition a “doubt that may arise from possi bility.” The reasonable doubt jury instr uctions contested by the petiti oner were upheld as constitutional. See Carter v. State , 958 S.W.2d 620, 625 (Tenn. 1997) ; Nichols , 877 S.W.2d at 734. This issue is without merit.

VII. CUMULATIVE EFF ECT OF ERROR The petitioner contends that the cumulative effect of all the alleged constitutional errors r

esulted in the petitioner bei ng deprived of a fair tri al. See State v. Cadle , 634 S.W.2d 623, 626 (Tenn. Crim. App. 1982). Considering our rulings in this

case, we conclude that no err ors exist that cumulati

vely would deprive the peti tioner of a fair trial. See Rosenthal v. State , 292 S.W.2d 1, 4-5 (Tenn. 1956)

.

VIII. HARMLESS ERROR ANALYSIS The petitioner contends that the Tennessee Sup reme Court’s harmless error analysis on dir

ect appeal with respect to the jury’s erroneous appli cation of the felony murder aggravating circumstance violated hi s right to a jury determ ination of sentencing and to due process of law. He argues that Tenness ee law creates a due process liberty inter

est in jury resentencing that precludes the court’s application of a harmless error analys is when the sentencing jury has considered an invalid aggravating circumstance. This ar

gument has been rejected by our supreme court. See Boyd v. State , 959 S.W.2d 557, 560 (Tenn. 1998) (holding that a jury’s reliance on an invalid felony murder aggravating factor does not require a r esentencing hearing if the reviewing court concludes beyond a reasonable doubt tha t the sentence would have been the same had the jury given no weight to the invalid aggravat ing factor). This issue is without meri

t.

IX. IN CAMERA REVIEW OF PROSECUTOR ’S FILES The petitioner contends that the trial court erred by failing to conduct an in

camera review of the prosecutor ’s files regarding other

crimes with which the petitioner had been charged. The petitioner sought to re view the files to find i nformation pertaining to his post-conv iction issues, particul arly the issue of his m ental state, but the trial court denied the motion. The files pertain to alleged acts of child sex ual abuse,43

and the trial court denied the request pursuant to Tenn. Cod e Ann. § 37-1-612, which prohibits the disclosur

e of all records concerni ng reports of child sexual abuse. The statute provides limit

ed circumstances under w hich disclosure may be a llowed, but the trial court determined that those circumstances d id not apply in this case.

The petitioner cites Munke v. Munke , 882 S.W.2d 803, 804 (Tenn. Ct. App. 1994), to support his cont ention that the trial court was required to conduct an in

camera inspection. However, i n that case, the court held that an inspection was required under the statutory exception to disclosure “ for the purpose of protecting a child or children from

child abuse or child sex ual abuse . . . .” Tenn. Code Ann. § 37-1- 612(h). This exception does not apply to the petitioner’ s case. This issue is without merit. See , e.g. , State v. Caughron , 855 S.W.2d 526, 541 (Tenn. 1993) (holding that a trial court is not requ ired to review the entir e prosecutor’s file absent a specific showing from the petitioner).

In consideration of the foregoing and the record a s a whole, the judgment of the trial court is af

firmed.

______________________________

Joseph M. Tipton, Judge

CONCUR:

________________________________ Gary R. Wade, Presiding Judge

________________________________ Thomas T. Woodall, Judge