### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE Se pte m be r 24, 200 4 S es sio n

KAR EN REN EE HOWE LL v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for G ree ne County No. 01CR039 Jam es E. Beckner, Judge

No. E2003-01469-CC A-R3- P C - F ebruary 18, 2005

The De fenda nt, Kare n Renee Howell, pled g uilty to three counts of first deg ree felony murder, one

c ou nt o f atte mpt e d f

ir st d e g re e mur de r, tw o c ou nts of e sp e c ia lly a g g ra vate d kid na pp ing , tw o c ou nts of ag g ravated kidnapping , and one c ount of theft over $1,000. After

a sente ncing hearing, the trial court sente nced the Def

endant to three consecutive terms of life without the possibili ty of par ole for the murder s, a co nsecutive te rm of twenty -five y ear s for the attempted murder, and a conc urre nt eff ective te rm of twenty -five y ear s for the r emaining convictions. The De fendant’s convictions and sentenc es were affirme d on direc t appea l. See State v. Howe ll, 34 S.W .3d 484 (Tenn. Crim. App. 2000). The D efe ndant subsequently filed for post-conviction relief
, alleg ing that her g uiltypleas a nd sentenc ing w ere marre d by the ineff ective a ssistance of counsel, and that her guilty pleas we re not

e nte re d v olu nta

ri ly , in te lli g e ntl y

a ndkn ow ing ly . A ft e r a

he ari ng , th e tr ia l c ou rt

de nie d r e lie f. Th is dir e c t app e a l f

oll ow e d. We a ff

ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the court, in which J O H N E VE R E TT W I L L I AMS and N OR MA M C G EE O G LE , J J ., joined.

Gary L

. Ander son, Knoxvi lle, Tenne ssee and J ason E. B. Smit h, Fr anklin, North Carolina, f or the

app e lla nt, Ka

re n Re ne e Ho we ll.

Paul G . Su mme rs , Atto rn e y Ge ne ra l and Re po rt e r; Ma rk A. F ulk s, As sis ta nt A tto rn e y Ge ne ra l; C. Be rkele y Be ll, District Att o rn eyGene ral; and Eric D. Christianson, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

This case arises out of the horrific murders of Vidar, D el fi n a and Tabitha Lillelid, and the

a tte mpt e d mu rd e r o f P e te r Lill e lidin 1 99 7 b y the De fe nd a nt andfi ve coh ort s: Nata sh a Corne tt, J ason B ry ant, Edwa

rd Mullins, J oseph Risner, and Cry stal Sturgill. The Def endant was seve nteen-2-

y e ars old at th e ti me of the of fe ns e s. Ac c or din g to the op ini on fi le d inthe dir e c t app e a l of thi s matter: Th e de fe nd a nts we re en rout e fr om the ir ho me s in Pik e vil le , K e ntu c ky , to New O rlea ns, L ouisiana. B efor e lea ving K entucky , they had ac quired two g uns, a 9mm and a .2 5 c a lib e r p ist ol. Sho rt ly a ft e r the ir

de pa rtur e , th e y

re a lize d th a t th e ir

car , which belong ed to Joseph Risner, would not likely sustain the leng th of the trip. Th e y dis c us se d th e po ssi bil ity of ste a lin g a

c ar f ro m a pa rking lot or a de a le rs hip befor e mee ting the Lillelids, who wer e returning to their re sidence from a r elig ious convention, at a

rest stop on I nterstate 81 ne ar G ree neville.

V id a r Lillelid, who was an a ctive Jehovah’s Witness, approac hed Cornett and Howell at the rest s top in order to discuss his relig ious views. He was ac companied by his son, Peter. Eventually , Risner and B ry ant j o i n ed t he conve rsation. Me a nw hil e , M rs . Lill e lida ndhe r d a ug hte r, Ta bitha , w e re se a te d at a ne arb y pic nic ta ble . A ft e r a

tim e , Ri sn e r, B ry a nt, Ho we ll, a ndCorne tt j oin e d th e e nti re L ill e lid family and continued the ir conver sation. At some point, Risner display ed one of the g un s a ndsa id, “ I

hate to d o y ou thi s w a y , b ut w e are g oin g to h a ve to t ake y ou wi th

us fo r y ou r v a n. ” As he the n d ir e c te d th e L ill e lidfamil y int o th e ir va n, Vi da

r Lill e lid ple a de d w ith the g ro up , o ff e ri ng his ke y s andwa lle t in e xch a ng e fo r p e rm iss ion to

rema in at the re st stop. R isner re fused.

Vidar Lillelid drove the van w hile Risner, still ar med, sat in the passe ng er seat. Risner, B ry ant, Howell, and Cornett we re in the van with the L illelids. Mul lins and Sturgill followed in Risner ’s car

. I n an attempt to c alm the children, Del fina L illelid began to sing

. Bry ant purportedly order ed her to stop. Risner direc ted Mr. L ill e lidfi rs t to the int e rs ta te a ndthe n to a se c lud e d r oa d at th e ne xt exit.

W h at happe ned ther eaf

ter is in dispute. The ac counts g iven by Risner, Corne tt, Ho we ll, Mu lli ns , a ndStu rg ill are c on sis te nt, e xce pt fo r m ino r d isc re pa nc ie s. They claim that B ry ant beg an to ta ke char g e of the situation once Risner orde red the van to a stop. R isner, who was in possession of t he 9mm wea pon, contends that he handed the g un to Cornett at that point
, ex plaining that he could not continue. Corne tt ma int a ins that sh e pla c e d the we apo n on the fl oo r o f the va n w hil e B ry a nt, who had the .25 c aliber g un, order ed the Lillelid s t o stand in front of a ditch. Acc ording to all but Bry ant, the Lillelids plea ded for their lives and e specia lly

for the lives of their children, promi sing that they would not call the authorities. The other de fe nd a nts c on te nd that wh e n B ry a nt re fu se d, Corne tt a nd Ho we ll the n p le a de d w ith B ry a nt t o le t th e L ill e lid s g o. Ac c or ding t o th e oth e r d e fe nd a nts , B ry a nt a g a in ref u s ed
, ex plaining that the L illelids would l ikely call the police . When Bry ant promised that he would not hurt the children, Howell and Corne tt testified that they returne d to the van, wher e Risner had rema ined. They then hea rd a r apid succ ession of g unshots. Som e cla im that Mr. L illelid was the first to be shot, while others say that it was Mrs. Lillelid. All contend that when the shooting stopped, Bry ant re turned-3-

to the van, and said, “The y ’re still f-- king alive.” He then g rabbe d the other g un and fired another round of

shots. Bry ant, they

said, laughed and brag g ed about the sh oo tin g s. Af

te r the sh oo tin g s, Ris ne r w e nt t o h is c ar an d r e mov e d th e lic e ns e plate and re g istration fr o m h i s v ehicle. Risner claims that he a ccide ntally struck one or more of the b o d i es wh en , in response to a n order from B ry ant, he turne d the van around. Th ey ea ch cla im that St urg ill and Mulli ns remaine d in Risner’s ca r throug hout the entire e pisode.

At the sentenc ing he aring
, Bry ant t estified that it was Risner who or dere d the L illelids out of the van and direct ed t h em t o s tand by a ditch. He contende d that Risner first shot Vidar L illelid with the .25 caliber wea pon and then slappe d Mullins

on th e s h o u ld e r , a n d th a t M u ll in s a ls o s h o t a t th e v ic ti ms

. B r y a n t c la imed that he kept his ey es closed during the shootings and that h e never fir ed either wea pon. Bry ant contend ed t h at M ullins and Ris ner or dere d the others into the van a fter the shootings. The defe ndants then drove the L illelids’ van to a gas station where the y p u rc h as ed a r o ad m ap

. T h eys t o p p ed at a W af fl e H o u s e w h i l e t ra v el i n g t h ro u gh Geor g ia but left t he restaura nt when a g roup of police officer s arrived. They decide d t o ab an d o n their plans to trave l to New Or leans a nd instead drove toward Me x ico. Whe n th e y re a c he d the bo rd e r, the y we re ini tia lly de nie d ad mit ta nc e be c a us e the y did not have the pr oper f

orms of identification but eventually found a w ay

into the country

. Whil e in Mexi co, Bry ant was shot in the hand and leg . The sourc e of the wound is disputed by the defendants. Bry ant t estified that Risner asked him t o take the blame f

or the shooting s because Bry ant was a juvenile. He claimed that when he hesitated, Risner shot him in the hand and in the leg . The other defe ndants asserted that Bry ant’s wounds we re se lf-inflicted.

L ater , the def

endants we re stopped by the Mexican authorities. When they claimed they

wer e lost, the offic ers or dere d the def endants out of the van and

co n d u ct ed a searc h. When they found a knife and a photo a lbum belonging to the L illelid family , they

order ed the de fendants to the border to re -ente r the United States. American office rs sea rche d the defendants at the border patrol and took t hem to an Ar i z o n a jail. At the time of their a rre st, severa l of the def

endants [including Ho we ll] h a d in the ir

po sse ssi on pe rs on a l it e ms b e lon g ing to the vic tim s.
State v. Howell, 34 S.W.3d 484, 487-89 (Tenn. Crim. App. 2000).

Th e De fe nd a nt w a s a

pp oin te d c ou ns e l w hil e sh e wa s st ill in A riz on a. U po n h e r r e turn to Te nn e sse e , th e Sta te fi le d f orma l c ha rg e s a g a ins t the De fe nd a nt, a s we ll a s a g a ins t he r c od e fe nd a nts

. Th e Sta t e a l s o f

i l e d n o t i c e t h a ti tw a s s e e k i n g t h e d e a t h p e n a l t y a s t o t h e f

o u r a d u l td e f e n d a nts ; be c a us e sh e wa s a juve nil e a t the tim e of the of fe ns e s, the De fe nd a nt w a s n ot e lig ibl e fo r the de a th penalty . See Tenn. Code Ann. § 37-1-134( a)( 1) (1996) . She and Jason Bry ant, also a juve nile at the time of the crimes, were subsequently transfe rre d from juvenile court to c riminal court to be trie d

a s a du lts . Sh ortly

be fo re tr ia l, the Sta te no tif ied all defe nd a nts that it

wo uldno t se e k th e de a thT he p l ea o f fer als o req ui red t he d efend ant s t o p l ead gui l t y t o t wo co unt s o f especial l y aggravat ed ki d nap p i ng, 1

t wo cou n t s o f

a g g r a v a t e d k i d n a p p i n g , a n d o n e c o u n t o f t h e f t o v e r $ 1
, 0 0 0
, fo r w h i c h t h e d e fe n d a n t s w o u l d e a c h be

sen t en ce d t o a c o nc urre nt ef fec t i ve t erm o f

t w en t y- f i ve years.

D r

. Lar ki n w as a ps y chol ogi s t empl oy ed by t he St at e. 2

B ef or e a j u v en i l e cou r t ma y t r an s fer a c h i l d t o c r i mi n al c ou r t , i t must d et erm i ne t hat t h e ch i l d “ i s n ot 3

co m m i t t ab l e t o an i nst i t ut i o n fo r t he m ent al l y ret arde d or m ent al l y i l l

. ” T enn. C o d e A nn. § 3 7

- 1

- 1 3 4 (a)( 4 )( B ) ( 1 9 9 6 ).

-4- penalty ag ainst the four a dults if each and every defe ndant ag ree d to plead g uiltyto three c ounts of fi rs t de g re e fe lon y

mur de r andon e c ou nt of atte mpt e d f ir st d e g re e mur de r, wi th s e nte nc ing le ft to the trial court’s discretion on those crimes. Eac h of the def endants a cce pted the plea barg ain. The 1 Def endant wa s subsequently sentenc ed to three consec utive terms of li fe i n prison without the possibili ty

of par ole for the murders and to a conse cutive term of twenty -five y ear s for the attempted murder. H er c onvictions and sentenc es we re a ffirme d on direc t appea l. See Howell, 34 S.W.3d at 484.

I n her pe tition for post-conviction relief
, the Def endant a lleg es two basic g rounds for se tting

a sid e he r c on vic tio ns

. F ir st, sh e c la ims that he r a pp oin te d la wy e r ( “ Cou ns e l” ) w a s in e ff e c tiv e in h is

re p re s en tation of her. Sec ond, she alleg es that her g uiltypleas a

re c onstitut ionally

infirm. The Def endant a lso alleg es that the trial c ourt er re d in refusing to admit ex pert testimony conce rning Counsel’s level of pe rformance

.

P ROOF ADDUC ED AT P OST -CONVICTION HEARING Dr . L e on ardMil le r, a

c lin ic a l ps y c ho logis t, test if ie d th a t he is a

fo re ns ic ps y c ho log ist specia liz ing in juvenile case s. He wa s initi ally contac ted by

Counsel about the Def

endant’ s case on J uly 1, 199 7

. On J uly

9, 1997, Dr. Miller re ceive d a letter from Counsel about eva luating the Def endant prior to her juvenile tr ansfe r hea ring , which wa s scheduled f or later that month. The letter ref ere nced a one-ha lf hour intervie w that a Dr . L arkin had conduc ted with the Def endant. Refer

ring 2 to this i nterview , Counsel wrote Dr . Miller, “Rea lly , we ne ed to do eve rything in our pow er to ke ep Kar en in J uvenile Court. I would bet my

last cent that Mr. [sic] L arkin will determine that Kar en is not commit table.” Dr. Miller testified that, in his opinion, a one -half hour interview “ would not 3 ha ve be e n s uf

fi c ie nt t o a sse ss [the De fe nd a nt’ s] f un c tio nin g abil ity , h e r dy na mic s, a ny po ssi ble patho log y , o r any

sig nif ic a nt f a c tor s a bo ut h e r. ” Dr . M ill e r t oldCo un sel th at he w a s a va ila ble to evaluate the De fenda nt prior to the transf er he aring , and that he w as available to testify . Howeve r, Dr

. M i l l erh ea rd n o t h i n g fu rt h erfr o mC o u n s el p ri o r t o t h e t ra n s fe r h ea ri n g.

Dr. Miller ne x t hear d from Counsel in Octo b er 1 9 9 7

. Counsel ag ain soug ht Dr. Miller’s assistance in evaluating the Def endant, whic h Dr. Miller a g ree d t o p ro v i d e. I n late Oc tober, Dr

. Miller returne d to Counsel an aff idavit se tting forth the terms of his involvement. On Dec ember 22, 1997, Dr. Miller rec eived a copy of an order from the trial court appointing him to do a psy cholog ical evaluation of the Def

endant. This orde r had be en sig ned on Nove mber 18, 1997.-5-

Be cause of the late date on whic h Dr. Miller re ceive d the copy of t he court order
, he did not

commence his evaluation of the Def endant until January 6, 1998. The evaluation did not include a de te rm inatio n o f w he the r an in sa nit y de fe ns e wa s su pp orta

ble
, o r w h e th e r th e De fe nd a nt w a s c apa

ble of e nte ri ng a

kn ow ing a ndvo lun tary

g uil ty ple a . A c c or din g to D r. Mil le r, Cou ns e l ma de no re qu e st for a determination of whether the Def endant had a possi ble “defense ” of dimi nished ca pacity . Dr. Miller submitt ed his final re port to Counsel on Febr uary 11, 1998. Dr. Miller ha d no further contac t with Counsel prior to Fe bruary 20, 1998, when the D efe ndant enter ed her g uiltypleas. Dr . Miller h ad a f i n al v i s i twi t h t h e D ef

en d an to n M ar ch 3
, 1 9 9 8
, p ri o r t o t h e s en t en ci n g h ea ri n g.

After conducting his evaluation, Dr. Mi l l er co n cl u d ed that there we re two ba ses upon which the De fenda nt was involuntarily committable to a mental instituti on: suicidal levels of de pr e ssi on , a nda

tho ug ht d iso rd e r. He sa id that the se c on dit ion s wo uld a lso ha ve e xiste d a t th e tim e of the tra nsfer

hearing. D r. Miller’s re port, a c opy of which w as ad m itted at the post-conviction hearing, a lso includes a finding that, at the time Dr. Miller te sted her, the Def endant ha d an I .Q. of 78, indicating that she was “func tioning withi n the borde rline re tarde d rang e of intellig ence .” The report further

provides that the Defenda nt was “not suffe ring from primary mental re tardation and in point of fact ha s the potential to function within the aver ag e rang e of intellig ence .”

Ba sed on his evaluation, Dr. Mil ler opined as follows about t he De fendant’s compre hension

o f t h e gu i l t y

p l eah ea ri n g:

The sit uation in and of itself was stre ssful, and would be stre ssful, I think, for

a ny on e , mo re so fo r h e r b e c a us e of he r p sy c ho log ic a l st a te a s I ha ve ind ic a te d it. So that in and of itself would have diminished her c apac ity to comprehe nd the questions that wer e being asked of

her.

He f urther stated that, unless the De fendant had had a prior “ext ensive conversation” about what he r g uiltypleas involved, she w ould not have bee n able to understand a ll of the conseque nces attendant there upon. I n his opinion, her ability to enter a

g uiltypl ea v o l u n tarily , knowing ly and understanding ly

w a s d e pendent upon suc h an extensive pre- hearing c onversation that was conduc ted “in such a fashion that leg al materials, complicated materials, we re br oken down to the leve l where she could more fully

compre hend them . . . .”

Dr. Miller a

ppear ed at c ourt on Marc h 10, 1998, thinking t hat he would be attending and testify ing at the Def

endant’ s trial. He did not discover until he arrive d at court that the Def endant’ s sentenc ing he aring was be ing c onducted. He still expected to testify , but was not ca lled. Dr. Miller stated that he thoug ht his testim ony would have be en helpf

ul in proving mitig ation.

On cr oss-examination, Dr. Miller acknow ledg ed having told Counsel that it wa s his “fee ling that it was quite difficult to avoid a t ra n s fe r” from juvenile to criminal court. He f urther acknow ledg ed having evaluated the De fendant’s competenc y , even t h o u g hn o t s p e c if

ic a ll y r e quested to do so by

Counsel. His evaluation indicate d that the Def endant wa s competent.-6-

Dr. Pamela

Auble, a spe cialist in clinical neurops y ch o l o gy , als o testified. She met and interviewe d the Def

endant in Jul y

2001. Dr. Auble spent a t o t al of nine a nd three -quarters hours with the Def

en d an t conducting interviews a nd tests. She also review ed Dr . Miller’s re cords a nd

ev al u at i o n as we l l as o t h erm ed i ca l re co rd s an d t h e tra n s cr i p t o f t h e De fe n d an t ’s gu i l t y p l eah ea ri n g. Dr . A ub le c omp ile d a fi na l r e po rt ba se d o n h e r ana ly sis , a

c op y of wh ic h w a s a dmi tte d at th e po stco n v i ct i o n h ea ri n g.

Dr. Auble testified that ce rtain tests she administere d to the Def endant indicated that the De fe nd a nt w a s n ot “ e xag g e ratin g or fa kin g me mory pr ob le ms, ” a nd that she wa s “g ivi ng a n h on e st po rt ray a l of he rs e lf .” Ac c or din g to D r. Au ble , th e Defe nd a nt’ s me mory fo r v e rb a l in fo rm a tio n is bo rd e rl ine re tard e d a nd sh e ha s d if fi c ult ie s w ith c on c e ntr a tio n. Th e se lim itatio ns make it d if fi c ult for he r “to follow long quest i o n s , keep tr ack of what’s g oing on, if

the situation is complex .” Acc ording to Dr. Auble, the acute anxietyand depr ession that Dr. Miller reported in Febr uary 1998 would also disrupt the Def endant’ s “ability

to pay attention and to proc ess what’ s g oing on a round her.” As to the Def

endant’ s capa citi es d u ri n g t h e guilty plea he aring , Dr. Auble opined that the De fe nd a nt “ wo uldha ve tr ou ble ke e pin g tr a c k of the qu e sti on s to unde rs ta nd wh a t the c on te nt w a s. You know, in g ener al s he had a hard time

. . . rea soning and reme mbering information, so she may have a lso had difficulty

reme mbering what her at t o rney had communicated to her a s well.” Dr

. Auble continued:

I t’s my o p i nion that she would have had diffic ulty proce ssing or understanding emotionally painful i nformation because that’s her sty le to withdraw, to shutdown, to go inside her self. I n th e sa me way , he r abil ity to pay a tte nti on a ndg ra sp wh a t sh e is b e ing tol d during the plea he aring would have be en impaire d for the same re asons.
During cross-e x amination, Dr. Auble made her poi nt more c lear ly : “[The Def endant’ s] m ental and emotional state at that time [of the plea hearing] was suff iciently impaired that he r ente ring the plea was not in a knowing and voluntary fashion.”

Wit h respe ct to the Def

endant’ s particula

r susceptibility to the terms of the plea barg ain, Dr. Auble testified:

I t’ s my op ini on that sh e is immatur e . She is e a g e r t o p le a se . Sh e ha s so me trouble being appro p ri at elyassertive with people. And it would have intimi dated

every one, or a ny

body , to have the lives of their c odefe ndants depe nding on w hat they did . It’ s my

op ini on th at wou ld ha ve be e n e ve n h ard e r f or [the De fe nd a nt] tha n it would have be en for

just a run of the mill person be cause of this personality structure and t h i s p er s o nality

makeup that she had. Natasha wa s the closest friend she ha d

ever had; that would have influence d her de cisi o n m ak i n g, as well. Her history of sexual a buse, her history of having a fathe r who had been verba lly abusive in h er childhood when he was drinking, would have c aused he r to have a pattern of g iving in and ac quiescing to authority fig ures.-7-

Wit h respe ct to the Def

endant’ s mental state at the of the crimes, Dr. Auble opine d:

I interviewe d her a

bout her re collection of the crimes. And I have r eviewe d the material that’s listed in my report. I t is my opinion that beca use of her -- that she

was seriouslydepre ssed at the time of the crime, that there w as suicidal ideation, that

s h e r e p o r te d o n g o in g h a ll u c in a ti o n s f r o m th e ti me s h e w a s 1 3
, a n d th a t th e c o n te xt of the c rime, and he r desc ription of what wa s g oing on in he r head at t he ti me of the crime, w ould have supporte d an inability to aid or abet in c arry ing out the crime or
, as we ll as, an inability

to interfer e with what wa s g oing on, to stop the b eh avior of the oth e rs

.

Dr. Aub le re ite rate d th is d uring c ro ss- e xami natio n: “ I t’ s my op ini on ba se d o n my

int e rv ie w w ith her a nd what I know about her that at the time of the crime she was knowing
, in that she was a war e of what was happening
, but she was not -- did not have a capacity to participate in it or to stop t he proce eding s.”

The De fenda nt, Kare n Howell, also testified. She stated that her first conver sation with her lawy er occurr ed the night she arrived i n J ohnson City
, Tenne ssee, after he r transf er f rom Arizona. S h e a l s o s t a t e d t h a ts h e h a d n e v e r b e e n i n c o u r tb e f

o r e a n d h a d n e v e r

b e f o r e b e e n r e p r e s e n t e d b y a lawy er. She r emember ed little about her transfer hearing in July1997. She main t ai n ed that her lawy er t o l d h er n o thing a bout an eva luation with a psy cholog ist, and that he neve r mentioned Dr

. Miller to her prior

to that hearing. She f

irst met Dr. Miller ea

rly in 1998.

After she wa s bound over to criminal court, her la wy er r aised the ide a of an insanity defe nse, but indicated that he did not think it would be succe ssful. He did not discuss with her a diminis hed capa city defe nse. Prior to any

plea ba rg ain offe r by the State, he a sked her if she would be w illing to t e sti fy fo r the Sta te . Sh e tol d h im “ pr ob ably no t.” He didno t c ommun ic a te a ple a off e r i n conjunction with her possible testimony

.
Asked a bout why she pled g uilty , the Def

endant testified:

Well, Ididn’t want the fo u r ad u l t s t o . . . g et the death penalty . And when [C o u n s e l] c a me to th e c o u n ty jail a n d ap p r o a c h e d me a n d b r o u g h t t o my a tt e n ti on about the plea

ag ree ment, I

asked him what he thoug ht I should do. And he sa id that I may have a better c hance in front of the judge t h an a jury , beca use once the jury

se e s t h e p i c t u r e s , y o u k n o w , t h e d e a d b o d i e s a n d s o o n , t h a tI w o u l d n ’ th a v e a

f a ir shot at g oing to tria l.

S h e c o n t i n u ed
, s t at i n g t h at C o u n s el t o l d h er t h at s h e “ wo u l d h av e ab et t erch an ce l et t i n g t h e j u d ge sentenc e” he r, beca

use “[s] ince they didn’t try us separ ately
, me and my codef endants, then the jury would probably

see us all as a g roup instead of as individuals, and that when the y seen the pictures that they , y ou know -- w ouldn’t have a fair c hance .” S he testi fied that, in making he r dec ision , she “wa s trusting [ Counsel] [because she] . . . had never been thr oug h the court sy stem befor e or to de al-8-

with attorney s so .

. . [she] believed him.” She explained that, by pleading g uilty , she hoped to g et “any thing but life w ithout parole.”

The De fenda nt testified that Counsel told her that a sente nce of lif e wi t h the possibilit y

of parole meant that she would have to serve 52 y ear s. Howeve r, she stated t hat he also told her that the de fi nit ion of

lif e se nte nc e s so me tim e s c ha ng e d, a ndsh e “ a uto ma tic a lly a ssu me d” that she wo uld g et the bene fit of any

lowering of the number

of y ear s require d to serve a term of “ life.”

When Counsel spoke with her about the plea barg ain offere d by the S tate, she told him t hat sh e wo uldha ve to thin k a bo ut i t. On the day that the of fe r expi re d, sh e state d, he re turne d a ndtol d her, “ Every

body ’s alre ady

signe d and what are y ou go i n g t o do? ” He also told her that it was he r decision. She said that her family did not want her to plea d g uiltyand wa nted her to go to tria l. The Def endant testified that Counsel wrote out two bene fits that w ould g o along with a g uilty plea: that the four a dult codefe ndants would not g et the death penalty
, and she might have a better c hance at a sente nce of life wit h the pos sibili ty of parole wit h the j udg e rather than the jury . She stated that sh e “ h a d p l a n n e d o n g o i n g t o tr i a l u n t i l t h e y c a m e u p w i t h t h i s p l e a a g r e e m e n t , a n d [s h e ] fe lt a tremendous amount of pressure .” She also testified that she g ave up her rig ht to a j u ry t ri al “[b] eca use [she] believed [C ounsel] when he told [her] t hat [she] would h av e a better c hance on standing in front of the judg e than the jury .”

Be fore she signe d the Waiver of Rights and Plea of Guilty , Counsel rea d it to her. She wasn’ t

su re if he e xpla ine d a ny

of he r c on sti tut ion a l r ig hts to h e r b e fo re sh e sig ne d it . Sh e didno t a sk him any questions about it. Counsel did not te ll her that, by pleading g uilty , she would be w aiving her rig ht to appeal the r esult of her transfe r hea

ring . She stated that C ounsel did not go ove r with her

a ny of the qu e sti on s that the tr ia l jud g e wo uld be a sking he r in c on jun c tio n wi th he r ple a . N or did he explain to her what wa s go i n g t o happen during the plea he aring . She stated that, during the hearing, she felt “r eally

nervous a nd . . . kind of trappe d.” She continued: “ I felt I had a

re sp on sib ili ty

or so me thi ng , li ke , if

I did n’ t pl e a d g uil ty

the se fo ur

a du lts c a n d ie . A ndI

jus t f e lt trappe d.” She explained that she ha d been friends with the four adults, being closest to Natasha . As to the se nte nc ing he ari ng , th e De fe nd a nt s ta te d tha t sh e ha d e xpe c te d D r. Mil le r t o te sti fy . Sh e a lso stated that she did not re ceive her G .E.D. until 1999.

On cross-examination, the Defenda nt admitted that, prior to her remova l from Arizona, she had bee n repr esente d by

a lawy er a s her g uardia n ad litem in a leg al proc eeding . She denied that she knew a bout the State’s plea ba

rg ain offe r prior to Counsel presenting it to her. She also denied that she wa nted to take the of

fer from the be g inning.

On re direc t, the Def

endant state d t h at C ounsel neve r discussed with her the ra ng e of punishment on eac h of the offe nses with w hich she was char g ed, nor did he explain the differ ence betwee n concur

rent a nd consec utive sentenc es, nor did he e x plain mitigatin g and enhance ment fac tors. She reiter ated that she did not decide to take the plea offer until the day on which it expired.T h e tra n sc rip t f ro m the se n te n c ing he a rin g re flec ts tha t a t o ta l o f five w itne sse s w e re c a lled o n the D e fen d a n t’s 4

b ehal f
, i ncl ud i ng t he D efend ant hers el f

. T he D efend ant ’ s f at her di d not t est i f y at t hat heari ng.

-9- J oe Howe ll, the Defe ndant’s father, testified that, before the Def endant pled g uilty , she ca lled him cry ing and say ing that if she did not plead g uilty
, four of her codef endants would be executed. He tol d h e r n ot t o c on fe ss t o s ome thi ng sh e didno t do , a nda sk e d to sp e ak to Cou ns e l. M r. Ho we ll testified that he asked Counsel, “ What a re y ou doing, try ing to make her confe ss to something that sh e did n’ t do ? ” Mr . H ow e ll s tate d th a t Co un se l to ld h im that th e De fe nd a nt w a s n o lo ng e r h is

conce rn and thre w the phone down. Mr. Howell was not a ble to ge t back in touch with him. L ater , ho we ve r, Cou ns e l to ld Mr

. Ho we ll that it wo uld be in the De fe nd a nt’ s b e st i nte re st t o p le a d g uil ty beca use “the judge would g o lenient on her .”

Mr. Howe ll said there we re a total of 15 or 2 0 wi tnesses on the De fendant’s behalf at the sentenc ing h ea ri n g, but Counsel dism issed all of them except Mr. How ell and his son, the Def endant’ s brother, B ry an Howell. On cross-e x amination, howeve r, he stated that he did not know if other witnesse s might have also testified on the De fendant’s behalf

. 4

Bry an Howe ll, the Defe ndant’s brother, also testified. He spoke with Counsel over the phone a short time bef

ore the Def

endant pled g uilty . Counsel told him that “[t] here would likely to be a b et t er o u t co m e i f s h e w o u l d p l ea d gu i l t y , t h e j u d ge w o u l d b e m o re l en i en to n h ert h an i f i twa s t o go to t ri a l a ndthe n h e r t o b e fo un d g uil ty .” He st ated that Co un se l trie d to e xpla in the po ssi ble sentenc ing outc omes, but that he did not understand w hat he wa s being told.

M r. Br y an Howell stated that the Def endant ha d told him t hat she wa s not going to plead g uilty . He lea

rned that she had pled g uiltyon the news, and became angry . He a ppear ed at the sentenc ing hearing to testify , and stated that it was “horrible” bec ause he had not bee n prepa red by Counsel about what kinds of questions to anticipate.

Mr. David L eonar d testified on beha lf of the State. He explained that he beg an pra cticing law in the fa ll of 1994. He wa s appointed in juvenile court to r epre sent the Def endant while she wa s still in Arizona. The appointment wa s rene wed in criminal c ourt. He a sked for the appointment of another lawy er to assist him, but beca use hi s client was not de ath-pe nalty elig ible, his request wa s denied. He was, howe ver, a ble to utiliz e a jury

consultant expe rt an d a p ri vate investig ator. The criminal court also approve d the employ ment of Dr. Miller.

Cou ns e l te sti fi e d that he ini tia lly sp ok e wi th the De fe nd a nt ov e r the ph on e wh ile sh e wa s in Arizo n a. He stated that he neve r had any problems communicating with her. He testified that he “investig ated e very

possible defe nse that [ t he De fendant] could have , whether it be fac tual or whether it be mental hea lth wise, dimini shed ca pacity , insanity
, every thing [he] could think of.” He disc u s s e d p o s s ib le d e f

e n s e s w ith h is c li e n t a n d r e v ie w e d th e St a te ’ s e v id e n c e w ith her. H e pe rs on a lly

sp ok e wi th “ a t le a st s e ven ty -fi ve w itn e sse s” in the c a se . H is i nv e sti g a tor sp ok e wi th others. He discussed witnesses’ statements wi t h t h e De fendant. He also c ommunicated with the other de fense lawy ers wor king on the case

.-10-

Cou ns e l st a te d th a t he ini tia lly c on ta c te d D r. Mil le r p ri or to Jul y 1, 19 97
, bu t that th e y did not have a ny

substantive conver sation until that ti me. Dr. Miller told him that he wa s “disillusi oned” with the process involving the transfe rs of juveniles to criminal court. Dr. Miller told him that he could expect the State’s psy cholo g is t t o do a very cursory evaluation. Counsel subsequently rec eived a copy of the State’s psy cholog ist’s opinion i n which the psy cholog ist, Dr. L arkin, opined that the Def endant wa s not committ able. Counsel provide d a copy of this opinion to Dr. Miller. Ac cording to C ou ns e l, the tw o me n the n dis c us se d the re po rt on July 12 , 1 99 7, a ndma de a

ta c tic a l de c isi on to de la y Dr . M ill e r’ s e va luatio n of th e De fe nd a nt, on the ba sis that th e y wo uldbe un su c c e ssf

ul i n keeping her f

rom being transfe rre d to c riminal court. When a sked about the delay
, Counsel indicated that he wa s try ing to ke ep the e valuation out of the prose cutor’s hands for a s long a s possible. He testified: “I

rea lly didn’t want [Dr. Miller] to start unt il the first of t he y ear , based upon the fac t that if his e va luatio n did raise so me so rt of le g a l arg ume nt, dim ini sh e d c apa c ity fo r e xamp le , th a t I

did not want the state to have time befor e the trial was set to reque st the Court to grant an independe nt evaluation.”

Counsel testified that he discussed w ith Dr. Miller the possible defe nses of diminished capa city and compe tence . Counsel testified that Dr. Miller ha d initiallyg iven him an “unc orre cted

ve rs ion ” of

his writt e n e va luatio n. Th is re po rt c on ta ine d, a c c or din g to Cou ns e l, a lot of the fa c ts of t he offenses a s r e late d to D r

. M il le r b y th e D e f e n d a n t. Co u n s e l r e q u e s te d th o s e f a c ts to be stricken f rom the final r eport, whic h he stated D r. Miller did. The r ecord does not contain a copy of this “uncor

rec ted ver sion.” As to his trial strateg y , Counsel testified:

Ba sically , my

whole g oal from the beg inning of this c ase was to ke ep Ka ren separ ate a nd apart from the other s. Certainly , in the juvenile transf er he aring , that was our g oal, to show, and try to show
, that she was a person.

. . . [M] y whole g oal in the case was to pre sent her a s a p er s o n , an d n ot some evil person that killed a child.

Wit h res p e c t t o mi ti g a ti o n , Co u n s e l t e s ti f ie d th a t h e in te n d e d to r e ly u p o n D r

. M il le r ’ s r e p o r t, the Def endant’ s family members and friends, and the reduced level at which the Defe ndant participated in the crimes c ompare d to her c odefe ndants.

Counsel testified that he initially hear d about the State’s plea barg ain offe r fr om one of the oth e r d e fe ns e a tto rn e y s o n F e br ua ry 17 th o r 1 8th. Th is oth e r l a wy e r d id n ot e xpla in the te rm s to Counsel but to ld h im
, “ Ju s t g o d o w n a n d ta lk to y o u r c li e n t. ” Co u n s e l th e n s p o k e w ith the Def endant who, acc ording to Counsel, told hi m that she had he ard that the State had off ere d a dea l wher eby , if eve ry one pled to the f elony murder char g es, the adult code fendants would be spare d the death penalty

. The Defendant did not tell Counsel from whom she receive d this information. She questioned Counsel about why he had not spoke n with her sooner about the off

er, but told him t hat she wa nted to take it. Counsel te stified, “she rea cted that whateve r it took, she wanted to sig n offA co p y of t he l et t er contai ni ng t he t erm s o f t he Stat e’ s o f

fer was ad m i t t ed at t he p o st

- co nvi ct i o n heari ng. T he 5

l et t er i s d at ed Febru ar y 1 8, 1 99 8, and re qui r es ac cept anc e by “ t he cl ose of bus i nes s on Fr i day
, Feb. 20, 199 8. ” T he pl ea

s u bmi s s i on h ea r i n g w as h el d on Fe br u ar y 20, 1998.

-11- on that to save, y ou k n o w, to ge t this over with, to save them fr om the death pe nalty , basica lly .” Counsel then visited with the district attorney to learn the exact terms of the of fer

. 5

Cou ns e l te sti fi e d th a t he vis ite d th e De fe nd a nt “[m]a ny tim e s” ov e r the ne xt co up le of da y s. The Defendant asked ma ny questions and at one point wa s ref erring to a sheet of pa

per that she had obtained somewhe re. Counsel stated that they “talked in g reat detail” about the ple a, the potential ramifications ther eof, the potential ramifications of g oing to tria l, and potential appe llate issues. He “wa nted to make it clea

r to her that . . . [ it] was he r dec ision.” He sat down w ith h er wi th the sentenc ing g uidelines and re viewed those with her in deta il. She told hi m “that she simplywanted a chance one day

to ge t out [ of prison], just a chance.” He e x plained to her that the m inimum s he would g et was 51 y ear s, but that “this was not g oing to be a situation where there would be par ole.”

Counsel stated that at no time did the Def en d an t ex press a ny

rese rvations about ac cepting the State’s off

er. Rathe r, he told her

that she nee ded to wait, to g ive him a n opportunity to se e if he could g et a be tter off

er. He visited the district attorney ’s offic e re peate dly try ing to “ g et some sort of more f avora ble re sult for her.” Counsel te stified that he tried to g et the Def endant to f

ocus on her own situation, not what would happen if she reje cted the of fer

.
Counsel testified that the Def endant did not want him discussing the plea of fe r wi th her famil y , and did not want them pre sent for the submissi on hearing. Counsel testified that the Def endant told him that she was “ ashame d” and did not wa nt “to fac e her family .”

Counsel testified that he did not observe anything that led him to believe that the Def endant’ s ple a wa s n ot kno wi ng a ndvo lun tary . N or did he ob se rv e a nythi ng to ind ic a te that th e De fe nd a nt d id not understand he r plea

. He discussed with her the actua l mecha nics of the plea and the que stions that the judg e would be a sking. H e rea d to he r and they discussed the neg otiated plea and the waive r of rig hts documents. Counsel testified that, in his mi nd, the Def endant “ under s tood the ramifications of ple a din g g uil ty , th e wa ive r o f the ri g hts , th e imp orta nt rig hts th at sh e wo uldha ve oth e rw ise

ma int a ine d. ” He a lso state d th a t th e De fe nd a nt “ se e me d so rt of re lie ve d that it wa s f ina lly g oin g to be over .” Counsel furthe r testified that he conclude d that the State had sufficie nt e vidence to prove its case in chie f; and he was a war e of no e vidence that would have r ebutted that ca se.

Counsel stated that he informed Dr. Miller of the Def endant’ s g uilty plea. He testified that Dr. Miller’s r esponse wa s that it wa s “proba bly for the best.” They

both then trave led to Kentucky in searc h of witnesses for the sentenc ing phase. Counsel ha d made a tactica l decision to submit Dr. Miller’s eva luation at the sentenc ing he aring instead of c alling D r. Miller to t es t i fy
, an d Counsel stated that Dr. Miller se emed r elieved by this decision.-12-

On cro s s -e x ami nation, Counsel admitted that, prior to being appointed to re prese nt the Def endant, he had neve r handle d a juvenile transfe r hearing. He had also never repr esente d a client

acc used of murde r. His leg al pra ctice at the time he wa s appointed wa s “g ener al,” including criminal defe nse, dom es t i c re l at ions, bankruptcy and cor porate law. He had handle d no more than te n crim i n al trials at the time he wa s appointed in this matter. None of his criminal trials involved calling an expert witness to testify

.
Af te r b e ing sh ow n a

c op y of the or de r, Cou ns e l a g re e d th a t th e juv e nil e c ou rt or de re d July 17, 1997, as the date of the transfer hearing and further

order ed that “an evaluation by the state, a nd

a n inde pe nd e nt ev a luatio n sha ll b e c omp le te d o n [th e De fe nd a nt] e xpe dit iou sly .” Qu e sti on e d a s to why he did not have this eva luation done in time for the tra nsfer hearing, Counsel testified:

There was a

time when I

became sort of a

rea list i n this case. It’s -- You w ould had to have sort of

lived throug h this case f

rom the beg inning. T h e wa y I treated [the Def endant] in the t ransf

er hearing scena

rio was -- I was treating the t ransf er sort of like discovery , I

g uess. Ther e wa s no way , in my opinion, .

. . that she would have stay ed in juvenile court. The fig ht was in criminal court.

When asked whe ther testimony by Dr. Mi l l er at the transfe r hea ring that the Def

endant wa s
c omm itt able wo uldha ve raise d a qu e sti on abo ut the juv e nil e c ou rt ’s abil ity to o rd e r h e r t rans fe r t o criminal court, C o u n s el re p lied, “I have no ide a.” When a sked why he filed a

motion for an

acc eptanc e hear ing a fter the Def endant ha d been or dere d transfe rre d to criminal court, Counsel

s tate d
, “ We f

il e d a mo ti o n f o r a c c e p tan c e h e ar in g a s a

matt e r o f c o u r s e , ju s t t o f

il e o n e

. . . . We knew what the law was, that in a case like this, ther e would not be an a cce ptance hearing g rante d. An d p o s s i b l y , y o u k n o w , m o r e s o t o n e e d l e t h e p r o s e c u t i o n a l i t t l e b i t

. ” C o u n s e l s u bs e qu e ntl y reiter ated, “ there was n o wa y , in my opinion, that this case was staying in juvenile c ourt. The juvenile court sy stem was not deve loped to handle c ases like this.”

C o u n s el ac k n o wl ed ged t h at h e h ad s u b p o en ae d Dr

. L ar k i n t o ap p ea r a tt h e j u v en i l e h ea ri n g, but ne ver called him to testify

. Dr. L arkin’s f ull report had be en filed w ith the juvenile court, unde r seal. Ne ither the State nor Counsel ha d seen the full report. Counsel admitted that he waived the iss ue of Dr . L arkin’ s e va luatio n in juv e nil e c ou rt

.
Counsel insisted that Dr. Miller thoug ht that his strateg y of delay ing D r. Miller’s e valuation

o f t h e D e f e n d a n t “ w a s a p r e t t y g o o d i d e a

. ” W h e n c o n f r o n t e d w i t h D r

. M i l l e r ’ s c o n tr ar y t e s t i m o n y, Counsel stated, “He lied.”

Cou ns e l a c kn ow le dg e d th a t, a ft e r h e r s e nte nc ing he ari ng , the De fe nd a nt r e c e ive d th e mos t

sever e sente nces f

or the murde rs that wer e possible: three consec utive terms of life imprisonment without the possibil ity

of par ole. He a dmitted that, prior to her ag ree ing to plea d g uilty , he told the Def endant t h at , i f s h e pled, she would have a chanc e of g etting out of prison some day . He maintained, howe ver, that this advice did not influence the Def endant to plea d g uilty

. He a dmitted that he did not rese arc h the ave rag e life spa n of someone se rving a term of life imprisonment, and-13-

didno t in fo rm his c lie nt that the a ve ra g e lif e e xpe c ta nc y

of so me on e se rv ing lif

e in T e nn e sse e is l e ss than six ty y ear s.
Counsel ag ree d with the contention that one of the major re asons t h at t he De fendant pled g uiltywas to save four of her c odefe ndants from ha ving to f ace the death penalty

.
C ounsel reiter ated that hediscussed with the De fendant all of the lesser -included of fense s to those that she was c harg ed wi t h

. He t h en admitted that he may not have discusse d all of the lesser- included off

enses of murder, but did discuss with the D efendant fa cilitation of first deg ree murder and second de g ree murder. When a sked whe ther he thought a jury might have found t he Def endant g uiltyof fa cilitation of first deg ree murder r ather than first de gre e murde r, Counsel

re pli e d th a t he didno t “ be lie ve the jury wa s g oin g to h a ve muc h s y mpathy fo r any of the se individuals.”

Counsel ma intained that, despite Dr . Auble’s testimony , the fa ctual proof of the off

enses indicated that the D efe ndant was g uiltyof more tha n fac ilitation t o commit first deg ree murder.

Counsel stated that he advised the Def endant that, upon her ple a of g uilty , the best sentenc e she could hope for would still result in her spending fifty -one y ear s in prison.

Cou ns e l a c kn ow le dg e d th a t, w he n th e De fe nd a nt p le d g uil ty , s he waive d h e r rig ht t o challeng e her

transfe r fr om juvenile court to criminal court. He state d that he ex plained that to t he Def endant.

Cou ns e l’ s la w p art ne r t e sti fi e d th a t he gradua ted fr om l a w s c ho ol i n 1 99 4 a ndwe nt i nto pr a c ti c e w ith Co u n s e l. H e s tate d th a t h e h a d h a n d le d th r e e ju v e n il e tr a n s f e r h e ar in g s prior to the Def endant’ s. Those prior he aring s did not invol ve any psy cholog ical issues, howeve r, nor did they involve expert testimony . Co-counsel a cknowledg ed his participat ion in assisti ng Counsel at the transfe r hea

ring , but had little recollec tion of the details. He did not talk with Dr. Miller.

T h er e w er e n o o t h erwi t n es s es att h e p o s t -c o n v i ct i o n h ea ri n g.

TRIAL COURT’S FIN DING S OF F ACT AND C ONCLUSIONS O F LAW After taking the matter unde r adviseme nt, the trial court e ntere d a twelve -pag e Memorandum Opinion and Orde r denying r elief. That order contains the foll owing finding s of fa ct and c onclusions of law: Dr. Miller wa s asked by [C ounsel] to conduct a complete psy cholog ical evaluation. Dr. Miller knew a ll the issues in a transfe r hea ring and counse led [C ounsel] that they probably couldn’t win at t he tra nsfer hearing, the rea l battle being in C ri min a l Co urt. Dr. Miller’s re p o rt was de lay ed for tactica l rea sons but a revie w of a ll the

rec ords and f

acts c lear ly

shows that the re p o rt would have not stopped the transfe r in juvenile court.-14-

. . . [Cou ns el] inv e sti g a te d e ve ry po ssi ble de fe ns e a nddis c us se d th e m in de ta il

w i t h t h e p e t i t i o n e r

. T h e y d i s c u s s e d d e f e n s e s o f i n s a n i t y a n d d i m i n i s h e d c ap a c i t y. He a nd h i s i n v e s t i g a t o r

t a l k e d t o a l l p o s s i b l e w i t n e s s e s , [C o u n s e l ] h i m s e lf int e rv ie we d at le a st s e ve nty fi ve (7 5) wi tne sse s. He visited the petitioner fre quently , sometimes twice per day . He ha d talked to her by telephone w hile she wa s in Arizona. He took her books to read. H e r e s e ar c h e d a n d s t u d i e d t h e l a w p e r t a i n i n g t o t h e c a s e r e l i g i o u s l y. Even thoug h their positions were o ft en conf licting, [Counsel] had the

a dv a nta g e of

the tr e me nd ou sly

ta le nte d la wy e rs re pr e se nti ng the c o- de fe nd a nts

. [C ounsel] traveled to Ke ntucky on three (3) occa sions in prepa ration of the

case

. Th e fa c ts we re ho rribl e a ndse e min g ly imp os sib le to o ve rc ome bu t [Cou ns e l] de ve lop e d a

log ic a l st rate g y of try ing to p re se nt the pe tition e r a s a p ers on se pa rate from the other s and not some evil per son who killed a child. To this end [C ounsel] moved and a rg ued strenuously

for a sever ance at eve ry sta g e . T his c ou rt

de nie d a se ve ranc e a ndthat de nia l w a s a ff ir me d o n a

pp e a l. [C ounsel] filed and had he ard vol u me s o f mo ti o n s

. M any

pretria l confe renc es and mot i o n hearings w ere conducte d with the petitioner pre sent. All issues and exh ibits were r

uled upon and e x plained bef ore the case was to be trie d. Approxim ately

1,300 exhibi ts were pref

iled and ruled upon a nd approximately 1,300 motions were f

iled and rule d upon. As state d b e fo re , [Cou ns e l] ur g e d Dr

. Mil le r to e va luate the pe tit ion e r f or a ll possible issues in the case. A nd Dr. Mil ler conducted a thoroug h evaluation and filed

a n e xha us tiv e re po rt

. Al tho ug h D r. Mil le r c on c lud e d th at th e pe tit ion e r w a s b i- po lar w ith ps y c ho tic features and suf

fering f rom post-traumatic stre ss disorder, the de tails o f the re port ref ute those finding s and re fute any finding s of commi ttability at t he juvenile leve l and a de fense of diminished capa city at the Criminal Court level. Further Dr . Miller did not find the petitioner incompetent or insane.

. . . [Cou ns e l] c on sid e re d a nddis c us se d w ith his c lie nt andDr . M ill e r a ll p os sib le de fe ns e s in c lud ing dim ini sh e d c apa c ity a nda ll o the r p os sib le me nta l de fe ns e s. [Cou ns e l] corre c tly

c on c lud e d th at he didno t ha ve a via ble me nta l de fe ns e and turne d his efforts in the psy cholog ical ar ea to mitigation.

. . . Dr. Auble conclude s that the petit ioner could not have had t he re quisite mens

rea for the of fense s she was c onvicted of. Dr. Auble ’s testimony

is not credible. She sa y s she ag ree s with Dr. Miller’s report which contra dicts her f indings. She did not find the petit ioner de presse d or suffe ring from anxiety

at the time she saw the petitioner.-15- Dr. Auble say s the petit ioner knew what was happening but did not have the capa city to pa

rticipate in it. This a ssertion is c ontradicte d by all of the fac t s and circ umstances of

the ca se. The pe titioner partici p at ed i n the planning of the “ spree ” that led to the execution of the Lillelid family , she helpe d steal the guns and money , she wa s at the picnic table at the rest area with the L illelids when they wer e kidnap[p]ed and saw them crying. She w as outside the van watching as the Lillelids were murde red. She didno thi ng to sto p the c arn a g e e ve n whe n a we apo n wa s availa ble . She de lib e rate ly and knowing ly

participated in every

aspec t of the killings including the g etaway and attempted cove r up. Given the horrific fac ts and circ umstances of the murders and a t t em p ted murder, no of

fer of settlement by

the state wa s anticipated. [C ounsel], however, w ent seve ral times to the district attorney g ener al to try to work something out that would benef it the petitioner.

. . . Tria l w a s im min e nt and[Cou ns e l] wa s r e a dy fo r t ri a l. Then c ame the of

fer by the state.

. . . [Cou ns e l] g ot wo rdthe re wa s a de a l on the ta

ble bu t di dn ’t

kn ow the de ta ils

. He went to see the petitioner and she t old him all about i t. [ Counsel] was somewhat upset that the petitioner kne w more a bout the offe r than he did. The pe titioner told [Counsel] that whateve r it took she wa nted to sign of f on the a g re e me nt. Th e pe tition e r wa s motiv a te d in pa rt by the de sir e to r e mov e the de a th p e na lty fr om the a du lt d e fe nd a nts

. [C ounsel] never urg ed or e v en advise d the petitioner to take the offe r and ple a d g uil ty . H e did n’ t a g re e fo r h e r t o p le a d g uil ty un til he wa s c e rt ain sh e fu lly

un de rs too d w hat sh e wa s d oin g a ndthat it wa s in he r b e st i nte re st. Af te r the pe tit ion e r tol d [Cou ns e l] sh e wante d to ple a d g uil ty he vis ite d w ith her ma ny times, more than once a day , to determine if she fully understood. [C ounsel] talked with the petitioner in g reat de tail a bout a ll a spects of suc h a plea and the consequence s thereof . He insisted she make a dec ision based on her own situatio n a ndno t ju st f

or the oth e rs

. He we nt t o th e dis tr ic t a tto rn e y g e ne ra l’ s o ff

ic e se ve ra l ti me s to try

to g e t a reduc tion in the offer

for the petitioner, afte r he ha d told her not to sign the a g ree ment

r i g h ta w a y. The pe titioner never

expressed any

rese rvations about the pl ea, and there was
n e v e r a n yt h i n g t o c a u s e [ C o u n s e l ] t o b e l i e v e t h a ts h e c o u l d n o tv o l u n t ar i l y, intelligently , knowing ly

and under standing ly

enter the plea. Both Dr. Miller and Dr. Auble testified that the petitioner c ould understand the plea and voluntarily , intelligently and knowing ly

enter into it if she had e x tensive

conver sations with her lawy er a bout it beforehand.-16- [C ounsel] and petitioner did in f act have extensive conversations about every

a sp e c t a ndc on se qu e nc e of the ple a

. Al l the c ha

rg e s a ndle sse r o ff

e ns e s a ndpo ssi ble punishments we re explained and understood. The pe titioner asked que stions about sentenc ing and mitigation. They talked about what concur rent a nd consec utive

se nte nc e s me a nt. An d th e y we nt o ve r a ll the ri g hts a ndwaive rs the Cou rt wo uld addre ss during the allocution. [Couns el] ex plained that all i s s u es prior to the plea would be wa ived. Even s o, the question has bee n raised a s to why [C ounsel] would allow the p e t i t i o n e r t o p l e a d g u i l t y i n s t e a d o f g o i n g t o tri a l b e f

o r e a j u r y. [Cou ns e l] wa s c on vin c e d th a t a ny jury wo uld fi nd the pe tit ion e r g uil ty of fi rs t deg ree murder and impose sentenc es of life without pa role. And that the only

chanc e of a le sser sente nce w as with the trial judg e. Every other attorney

in the case had expressed t h e s ame opinion, including t h e a t t o r n e y f

o r t h e f o u r t e e n ( 1 4 ) ye ar

o l d j u v e n i l e , J a s o n B r ya n t

. H i s a t t o r n e y, R o b e r tJ e s s e e , w a s a n d i s a s e a s o n e d
, h i g h l y r e s p e c t e d c r i m i n a l d e f e n s e a t t o r n e y. [Cou ns e l] kn e w that th e oth e r j uv e nil e wa s g oing to p le a d g uil ty un de r the sa me
c ir c ums ta nc e s. Th e pe tit ion e r w a s so be r at th e tim e a ndno t ondr ug s. The e vidence was ove rwhe lming and hor rible. There was no log ical def

ense.

. . . Dr . M ill e r t old[Cou ns e l] he tho ug ht the ple a wa s p ro ba

bly fo r the be st. At the time and plac e it seeme d the best dec ision for [C ounsel] to m ake. At the ac tual taking of the plea the petitioner wa s sober an d ar ticulate and

a n s w e r e d a l l q u e s t i o n s ap p r o p r i a t e l y. T h e tr a n s c r i p t o f t h e a l l o c u t i o n c o v e r s t w e n t yfour ( 24) pag es. The pe titioner and the other defenda nts signe d a “Waiver of Rights a nd Plea of Gu ilt y .” She a lso sig ned a do c ume nt p ro vid ing the “ se nte nc ing wi ll b e stric tly

w i t h i n t h e s o u n d d i s c r e t i o n o f t h e tr i a l c o u r t , ” w h i c h w a s ap p r o v e d b y h e r a t t o r n e y. She signe d an ac cepta nce of the written p l ea o ff

er and an a cknowledg ment of the specific waiver : “Furthermore , having been a dvised o f my constitutional rights, I fre ely and voluntarily

waive my rig ht to a trial by jury , my rig ht not to be compelled to incriminate my self, my rig ht to have a jury

impose any fine in excess of $50, and all other rig hts ex plained to me. I here by submit m y

case to t h e t ri al j udg e for decisions, both as to g uilty [si c] and punishment.” Al tho ug h it

wa s n ot the us ua l pr a c tic e of thi s c ou rt , a ll de fe nd a nts a g re e d to plead g uiltyat the same time. Th is c ou rt

sta rt e d b y a sking qu e sti on s indi vid ua lly a ndma de c e rt a in that a ll responde d in an under standing way to eac h question asked jointly

. When asked if they had had any alcohol or dr ug s within the last twenty -four (24) hour s, the petitioner answ ere d neg atively

. . . .-17- [ T h e p l ea ] wa s ex p l ai n ed [ b y t h e c o u rt ] i n gre at d et ai l an d i n s i m p l e l an gu age what the defenda nts wer e pleading guilty to and the sentenc es that could be imposed

a ndthe pe tit ion e r s a id s he un de rs too d. Th e re is no re a so n to b e lie ve that sh e didno t.

. . . Th e pe tit ion e r, a t a ll the tim e s sh e ha s te sti fi e d, ha s d e mon str a te d a n a bil ity to un de rs ta nd state me nts ma de to he r a nd qu e sti on s a sk e d of he r, a ndha s b e e n a ble to c o mmu n ic a te w e ll

. Sh e h a s o b tain e d h e r G

. E

. D

. w h il e in th e T e n n e s s ee Depa rtment of Corre ction. The pe titioner never

questioned her

plea or asked to withdra w it during the more than two ( 2) we ek interval be tween the plea a nd the sentenc ing he aring . No one in t he petiti oner’ s behalf ever prese nted an objec tion to the trial court conc erning the plea. At the sentenc ing hearing every thing a nd every one we re pr esente d to the trial court to try

to achieve the minimum pos sible sentence for the pe titioner. [C ounsel] say s he g ot the state to a g ree to le t him file Dr. M i l l er ’s report ins te a d o f h a vin g Dr . M ill e r te sti fy

. Th is se e ms to ha ve be e n the be st t a c tic be c a us e
every thing in Dr . Miller’s re port ca me in whether leg ally admissible or not . Further, Dr . M ill e r h ims e lf

wa s n ot e xpos e d to the re a l pr ob le ms h e wo uldha ve ha d w ith

cross-e x amination. Since Dr. Miller wa s called on be half of the petitioner at the post convic tion evidentiary

hearing and Dr. Auble acc epted a nd cre dited and re lied upon Dr. Miller’s report, it is not sugg ested that [Counsel] was inef fec tive in employ ing D r. Miller or that some other psy cholog ist should have been e mploy ed. The pe titioner testified at the sentencing hearing a s well as seve ral other wi tne sse s in c lud ing Mic ha e l May , A pril Mull ins , Mel iss a Ho we ll a ndB ry a n H ow e ll. None of these witnesse s, some of whom wer e familymembers, made any complaint of any kind about the plea the petitioner had e ntere d. Nothing else is sug g ested that [C ounsel] could have prese nted in mitigation at t h e s en t en ci n g h ea ri n g. As a result of [C ounsel]’s e fforts this court found more mitigating fa ctors

app lic able to the pe tit ion e r tha n th e oth e r d e fe nd a nts

. No rea sonable person could conclude that the result would have b een dif fe re nt i f [Co un se l] ha d d on e e ve rythi ng the pe tit ion e r s ug g e sts

. The pe titioner h as n o t proven he r alleg ations by clea r and c onvincing evidenc e.

. . . Fr o m a ll o f

th e ab o v e th is c o u r t f

in d s th a t th e p e ti ti o n e r

r e c e iv e d e f

f e c ti ve assistance of counse l and post-conviction re lief is denied on that g round and all the

su b is su e s th e re of

pr e se nte d to thi s c ou rt

.

. . . F ro m e ve rythi ng in the re c or d a ndpr e se nte d at th is e vid e nti ary he ari ng thi s
c o u r tc o n c l u d e s t h a tt h e p e t i t i o n e r ’ s p l e a o f g u i l t y w a s e n t e r e d v o l u n t ar i l y, kn ow ing ly , u nd e rs ta nd ing ly a ndint e lli g e ntl y

in a ll r e sp e c ts.-18-

We turn n ow to the De fe nd a nt’ s c on te nti on s.

I. IN EF F EC TIV E A SSIST AN CE OF CO UN SEL We w ill f

i r s t a d d r e s s t h e D e f

e n d a n t ’ s c o n t e n t i o n t h a t h e r l a w y e r w a s i n e f f e c t i v e i n h is repr esentation of her.

A. Standard of

Review Both the Six th Amendment to the United States Constit ution a nd Article I
, Section 9 of the Tenne ssee Constitution guar antee a criminal defe ndant the rig ht to repre sentation by counsel. See State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999); Ba x ter v. Ros e, 523 S.W.2d 930, 936 (Tenn. 1975). Both the U nited States Supreme Court and the Tenne ssee Supreme Court have r ecog nized that the rig ht to such repr esentation include s the rig ht to “re asonably eff ective” assistance
, that is, within t he rang e of c ompetence demande d of attorne y s in criminal case s. See Strickland v. Washington, 466 U.S. 668, 687 (1984); B urns, 6 S.W.3d at 461; Baxt er, 523 S.W.2d at 936.

A l a wy er’s ass ista nc e to h is o r h e r c lie nt i s in e ff e c tiv e if the la wy e r’ s c on du c t “ so undermined the proper

functioning of the a dversa rial proc ess that the trial c annot be r elied on as having produce d a just result.” Strickland, 466 U.S. at 686. This over all standard is c omprised of two components: defic ient perf ormanc e by

the def endant’ s lawy er, and actua l prejudice to the defe nse caused by

the def icient per formanc e. See id. at 687; Burns, 6 S.W .3d at 461. The de fendant bear s the burden of establishing both of these components by clea r and c onvincing evidenc e. See Tenn. Code Ann. § 40-30-210( f); Burns, 6 S.W .3d at 461. The defenda nt’s failure to prove e ither defic iency

or prejudice is a suff

icient basis upon which to deny relief on an inef

fec tive assistance of counsel c laim. See B urns, 6 S.W.3d at 461; Goad v. State, 938 S.W .2d 363, 370 (Tenn. 1996)

.
Th is t wo -p art

sta nd ardof

me a su ri ng ine ff

e c tiv e a ssi stanc e of

c ou ns e l a lso app lie s to c la ims arising out of a g uiltyplea. See Hill v. L ockhart, 474 U.S. 52, 57 (1985). The prejudice component is modified such that the defendant “ must show that there is a r easona ble proba bilitythat, but for counsel’s e rror s, he would not have pleade d g uilty and would have insisted on going to trial.” I d.;

see a lso Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998)

.

I n e v a lu a ti n g a la w y e r ’ s p e r f o r man c e , th e r e v ie w in g c o u r t u s e s a n o b je c ti v e s tan dard of “re asonable ness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W .3d at 462; Hellar d, 629 SW .2d 4, 8 ( Tenn. 19 82 ). Th e re vie wi ng c ou rt mus t be hig hly

de fe re nti a l to c ou ns e l’ s c ho ic e s “ a ndsh ou ld ind ulg e a st ron g p re su mpt ion that c ou ns e l’ s c on du c t f a lls wi thi n th e wi de rang e of re a so na ble profe ssional assistance.” Burns, 6 S.W .3d at 462; see a lso St rickland, 466 U .S. at 689. The court sh ou ld n ot u se the be ne fi t of hin ds ig ht t o se c on d- g ue ss tr ia l str a te g y or to c ri tic ize c ou ns e l’ s ta c tic s,
se e He lla rd , 6 29 S.W. 2da t 9, a ndc ou ns e l’ s a lle g e d e rr or s sh ou ld be jud g e d in lig ht of a ll the fa c ts and circ umstances a s of the time they wer e made . See Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W .2d 240, 245 (Tenn. Crim. App. 1998)

.
A trial court’s determination of an ineff ective a ssistance of counsel c laim presents a mix ed qu e sti on of l aw and fac t on app e a l. S e e F ie lds v. Sta te , 4 0 S. W.3 d 4 50 , 4 58 (T e nn . 2 00 1) . T his-19-

Court review s the trial court’ s findings of fac t with reg ard to the e ffe ctiveness of counsel unde r a de

novo s t an d ar d, acc ompanied with a pr esumption that those findings a re c orre ct unless the preponde ranc e of the evidenc e is otherwise . See id. “How ever , a trial court’s conclusions of law-

- such as whe ther counsel’s performanc e wa s deficie nt or whethe r that def iciency was pre judicial--a

re revie wed unde r a pur ely

de novo standa

rd, with no presumpt i o n o f co rr ectness give n to the trial court’s c onclusions.” I d.

B. A nal ys is The De fenda nt first alleg es that Counsel w as ineffe ctive due to his lack of experienc e. She points out that Counsel ha d been prac ticing law less than three y ear s at the time he wa s appointed to repre sent her in juvenile court; had never handled a juvenile transfer hearing; a nd had neve r tried a murde r ca se. She ar g ues that, althoug h she wa s not death pena lty elig ible beca

use of he r ag e at the tim e the mur de rs we re c omm itt e d, he r c a se wa s, in all ot her res pe c ts, the e qu iva le nt o f a de a th pe na lty c a se , a nd th at she w ou ld h a ve be e n trie d jo int ly in w hat w a s a

c apit a l c a se fo r h e r a du lt codef endants. Ye t, because of his inexperience
, her la wy er w as not qualified to re prese nt a ca pital de fe nd a nt, e ve n a s se c on d c hair

. F or the se re a so ns , s he a sse rt s, Cou ns e l w a s in c omp e te nt t o h a nd le her c ase, a nd did not redre ss his incompetence throug h associating a qualifie d lawy er to serve as coc ou ns e l.

The re cord d oes establish that Counsel was r elatively inexperience d at the time he wa s appointed to the Def

endant’ s case . Neve rtheless, he had conduc ted seve ral c riminal trials and had some experience in juvenile court. His partner ha d handled juvenile tr ansfe r ca ses pre viously , and assisted Counsel in t h at as p ec t of the De fendant’s case . Counsel’s partne r also took over repr esenting Counsel’s other c lients, so that Counsel c ould de vote as much time as possible to the D e f e n d a n t ’ s c a s e

. C o u n s e l d i d a v a i l h i m s e l f t o s o m e e x t e n t o f t h e e x p e r t i s e h e l d b y a t t o r n e ys repr esenting the Def

endant’ s codef

endants.

We are reluc tant to find that Counsel was incompetent b ased simpl y on his level of experience . We are also reluc tant to start holding law y ers r epre senting non-ca pital defe ndants to the same standa

rds as those r epre senting capital de fendants. Nor ar e we prepa red t o re q u i re an appointed lawy er to a ssociate a nother law y er to assist him or her in the handling of any g iven ca se. Acc ording ly , we hold that the De fendant has not demonstrated by cl ea r and c onvincing evidenc e that her la wy er’ s perf

ormanc e wa s deficie nt simpl y beca use of his re lative lack of experience

.
The De fenda nt complains about Counsel’s perf ormanc e with r espec t to her juvenile transf er he ari ng

. B e c a us e the De fe nd a nt wa s se ve nte e n y e ars olda t th e tim e of the mur de rs , s he wa s in iti a lly

un de r the jurisd ic tio n o f o ur juv e nil e c ou rt s. Ou r l a ws pr ov ide , h ow e ve r, that

[a]f te r a pe tit ion has be e n f

ile d a lle g ing de lin qu e nc y ba se d o n c on du c t w hic h is desig nated a

crime . . . unde r the law s . . . of this st at e, the [juvenile] court, befor e he ari ng the pe tit ion on the me ri ts, ma y tr a ns fe r the c hil d to the sh e ri ff of the c ou nty to be held ac cording to law and to be dealt with as an adult in the criminal court of competent jurisdiction.T h is C o u rt h a s p re v io u sly d e te rm ine d that t he t erm “ co m m itt a b le ” re fer s to w h e the r th e ju v e n ile is inv o lun ta rily 6

c o m m itt a b le . S e e S ta te v. S im m o n s, 1 0 8 S .W .3 d 8 8 1 , 8 8 6 (T e n n . C r im

. A p p . 2 0 0 2 ) (h o ld ing tha t “o n ly a j u v e n ile subject t o ‘ i nvo l unt ary co m m i t m ent ’ m ay no t be t rans ferred .

. . . ”).

A t t he p o st

- co nv i cti o n he aring
, co un sel f o r t he D efen d an t o f

fere d t he en t i re c o urt f

i l e o f t he D efen d an t ’ s ca se 7

i nt o evi dence
, an d s ame was admi t t ed as E xh i bi t 23. A f t er an ex hau s t i ve s ear ch by t hi s Co ur t , howev er , we hav e fai l ed
t o f i nd t wo o f t he t hree volumes of t he t rans cri p t of evi d ence f rom t he juveni l e t rans fer heari ng. W e no t e t hat i t i s t he appel l ant ’ s dut y t o provi de t hi s Co ur t wi t h a com pl et e r ecor d f r om whi ch t o a dd r es s t he i s s ues r ai s ed i n a n a pp eal

. See (c o n tinu e d ...)

-20- Tenn. Code Ann. § 37-1-134( a) (1996). Be fore the child may be tra nsfer

red to c riminal court as an
a du lt, a tr a ns fe r h e ari ng mus t be he ld. Se e id. § 3 7- 1- 13 4( a )( 2) (1 99 6) . Wh e re the c hil d is a t le a st six teen y ear s old at the time of the off enses, the juve nile court shall orde r a transfer wher e

Th e [juv e nil e ] co urt f

ind s th a t th e re are re a so na ble g ro un ds to b e lie ve that:

(A) T he child committed the delinquent a ct as a lleg ed; (B ) T he c hil d is no t c omm itt able to an in stitutio n f or the me nta lly reta rded or mentally ill; and (C) The inter ests of t he community require that the child be put under leg al re straint or discipline.

I d. § 37-1-134( a)( 4) (1996) . I n making the determination of whether to transfe r the c hild to criminal

c ou rt a s a n a du lt, the juv e nil e c ou rt is r e qu ir e d to c on sid e r, a mon g oth e r m a tte rs :
(1 ) T he e xten t a ndnatur e of the c hil d’ s p ri or

de lin qu e nc y

re c or ds ; (2) The nature of past treatment eff orts and the nature of the child’s re sponse there to; (3) Whether

the offe nse wa s ag ainst person or property , with g reater weig ht in favor of transf er g iven to offe nses ag ainst the person; (4) Whether

the offe nse wa s committed in an ag g ressive and preme ditated manner ; and (5) The possible reha

bilitation of the child by use of pr oced u re s , service s and fac iliti es cur

rently available to the court in this state.

I d. § 3 7- 1- 13 4( b) (1 99 6) . T he De fe nd a nt ar g ue s tha t Coun se l impr op e rl y waive d a ny

op po rtun ity she had f or avoiding transfe r by

failing to put on any

proof at the transfe r h earing that she wa s “committable.” 6

The De fenda nt points out that Counsel ha d orig inally determined that avoiding transfe r wa s the pre fer able r esult. She ref ers to the letter Counsel wr ote to Dr. Miller stating , “Rea lly , we ne ed to do e v e r y th in g in o u r p o w e r to k e e p [t h e D e f e n d a n t] in Ju v e n il e Co u r t. ” T o th is e nd, Counsel obtained an or der from the juvenile c ourt authorizing him to obtain a psy cholog ical eva luation of the Def endant prior to the transfe r hea ri n g . Counsel, however , did not obtain this evaluation and,

ap p ar e n t l y, d i d n o to f

f e r a n y p r o o f

a tt h e tr a n s f

e r h e ar i n g ab o u tt h e D e f

e n d a n t ’ s c o m m i t t ab i l i t y. 7(

. . . con t i n u ed) 7

Stat e v. B al l ard, 85 5 S.W

. 2 d 55 7
, 56 0 (T enn. 19 9 3 ); T enn. R

. A p p

. P

. 24 (b).

-21- Dr. Miller e ventually

evaluated the De fendant in J an u ary 1998. He testified that, had he evaluated the De fenda nt prior to the transfe r hearing, he would have f ound two bases f

or a f inding by the juvenile court that the Def endant was involuntarily committable. Those two bases we re the Def endant’ s “suicidality ” and a “psy chotic ele ment.” Dr . Miller explained that, at the time he evaluated her , the Def

endant wa s suffering f

rom “suicidal leve ls of depre ssion” and “a thought disorder.” He opined that both of these conditions exist ed in J uly 1997, at the time of the transfer h ea ri n g.

When Counsel was c ross-examined about why he did not have the Def

endant e valuated prior to the transfe r hea

ring such that he c ould put on proof that she wa s involunt ar ily committable, there by avoiding her tran s fe r t o cr iminal court, Counsel testified that he ha d “bec [o] me sort of a

rea list i n this case ” an d h ad co ncluded that “ [t ]here wa s no way , in [ his] opinion, . . . that [ the Def endant] would have stay ed in juvenile court.” He had learned that the State’s expert, Dr. L arkin, ha d e va luate d th e De fe nd a nt and op ine d tha t she wa s not co mmi tta ble

. Dr . M ill e r, he te sti fi e d, tol d him that he, Dr. Miller, was “disillusioned” with the transfe r proce ss, and ag ree d with him that they would be unsucc essful in preve nting the D efe ndant’s tra nsfer . Acc ording ly , he abandoned his hope of kee ping the Def

endant in juvenile c ourt, and t reated the tra nsfer hearing a s an opportunity for d i s c o v e r y.

We c on c lud e that, i n th is r e g ard , Co un se l’ s r e pr e se ntatio n of the De fe nd a nt w a s d e fi c ie nt. Counsel abandone d a def ense strateg y

befor e g athering the fac ts nece ssary to make an inf

ormed decision about its viability

. Although Dr. Miller may have be en “disillusioned” g ener ally with the transfe r proc ess, he wa s certainly in no positi on to advise Counsel about their pa rticular likelihood of pre vailing at the transfe r hearing until afte r he had evaluated the Def endant. Yet, Counsel did not

re qu e st this e va luatio n be fo re de c idi ng to waive thi s iss ue

. Mo re ov e r, Cou ns e l’ s c la im at th e po stconviction hea

ring that he decided to delay the Defenda nt’s evaluation in order to keep it out of the prosec ution’s hands for a s long a s poss i b le see ms likely to be af ter-the -fa ct rationaliz ation. Ce rt a inl y , a s a c kn ow le dg e d b y Cou ns e l hi mse lf, th e tr ia l c ou rt wa s n ot g oin g to a llo w the de fe ns e to ambu sh the pr os e c uti on in this ma nn e r. I nd e e d, Cou ns e l a dmi tte d that, on c e he fi le d a no tic e wi th the tr ia l c ou rt

to u se Dr . M ill e r a s a n e xpe rt , th e tria l cou rt wo uld“ a llo w the state to g e t a la st m inu te evaluation if a mental hea lth defe n s e was raised.” Similarly , we a re c onfident that, once Counsel complied with his pre- trial obligations, the trial court would have g iven the State as muc h time as

nece ssary to de velop its re buttal pr oof. Thus, we a re unpe rsuade d that Counsel’s failure to present a mental he alth defe nse aga inst transfe r was a st rate g ic dec ision based on ade quate investig ation, and the re fo re wo rthy

of de fe re nc e by thi s Cou rt

. Se e State v. To wn e s, 56 S.W. 3d30 , 4 2 ( Te nn . Crim. App. 2000), ove rruled on othe r g rounds by State v. Terry , 118 S.W .3d 355, 358 (Tenn. 2003)
, (noting that “this court’s de fer en ce t o counsel’s ta ctical de cisions will depend upon counse l’s adequate investig ation of def ense options.”)-22-

Notwithstanding our conclusion t hat C ounsel’s performanc e was defic ient in this reg ard, w e must conclude that the Defenda nt has failed to pr ove by clea r and c onvincing evidenc e that she w as prejudice d by this e rror by her lawy er. As set forth above, beca use the Def

endant was seve nteen at the tim e of

the off ens es, th e juv e nil e c ou rt wa s r e qu ir e d to or de r h e r t rans fe r i f i t f

ou ndon ly “re asonable g rounds t o believe” that the Def endant wa s not committ able. Althoug h Dr. Miller testi fi ed at t h e post-conviction hea ring that the Def

endant wa s committable at the time of the hearing, D r. L arkin ha d conclude d that she w as not. Thus, eve n if Dr. Miller ha d testified at the transfe r hearing, the juvenile court had sufficie nt pr oof befor e it to conclude that t ra n s fe r w as
n ec es s ar y

. M o re o v er , i n i t s Fi n d i n gs an d R ec o m m en d at i o n s , t h e j u v en i l e c o u rt fo u n d t h e f o l l o wi n g:

1. That th e o ffe nses wer e committed in an ag g ressive and preme ditated manner ag ainst both persons and pr operty [; and] 2. That pursua nt to testim ony of Stat e personne l of State ag encie s, that source s
a va ila ble t o th e Sta te of

Te nn e sse e are lim ite d, to s uc h a de g re e , th a t po ssi ble reha bilitation of said child is not viable conside ring the g ravity of the off

enses a nd conduct in which sa id child eng ag ed.

The De fenda nt does not contend that he r lawy er’ s perf ormanc e w as re s ponsible for these two fi nd ing s, or

that he c ou ld h a ve do ne so met hi ng to p re ve nt the juv e nil e c ou rt fr om m akin g the se finding s. Yet, in making the determination of t he De fendant’s committabilit y , the juvenile court was

re qu ir e d to c on sid e r the ma nn e r i n w hic h th e of fe ns e s were co mmi tte d, a ndwh e the r o r n ot a

co m m itment would have re sulted in rehabilitation. See Te nn. Code Ann. § 37-1- 134(b)( 4), (5) (1996). The juvenile court’s finding s on these two points, toge ther with Dr. L arkin’s opinion that the Def endant wa s not c ommitt able, convince us that the result of the transf er he aring would have been the same whe ther or not D r. Miller had testified. That is, the Def endant wa s not prejudiced by Counsel’s failure to have he r evaluated by Dr. Miller prior to the transfe r hea

ring . The De fenda nt has fa iled to establish that she has suff ere d from the ineffec tive assistance of counse l on this ground.

I n conjunction wit h this issue, the Defenda nt also points out t hat Counsel’s fa ilure to adduc e pr oo f at th e tr a ns fe r h e ari ng of he r c omm itt abil ity

se rv e d to waive he r ab ili ty to a pp e a l th e juv e nil e court’s or der of transfe r on this g round. Ag ain, we ag ree with the Def endant that Counsel’s de cision to waive the issue of

the Def endant’ s committabili ty

was de ficient. How ever , the Def endant’ s decision to plead g uiltyalso serve d to waive a ny rig ht to appeal the ju v en i l e court’s decision. As set forth be low, we ha ve dete rmined that the De fendant’s g uiltyplea wa s valid. Acc ording ly , her lawy er’ s failure in this reg ard be came irrele vant. This issue is without m erit.

Th e De fe nd a nt a lso c omp la ins that Co un se l pe rf orme d in a de qu a te ly in de ve lop ing a de fe ns e strateg y by failin g t o g ather

expert proof c oncerning the Def endant’ s state of mind at the time the murders w ere commit t ed

. T he De fendant testified that Counsel never spoke to her a

bout the “def ense” of diminished capa city . Dr. Miller testified t h at he did not investigate the De fendant’s state of mind at the time of the crimes. Counsel testified that h e did i nvestig ate a diminis hed capa city “def

ense” and discussed it with Dr. Miller. The tria l court ac cre dited Counsel’s testimonyT he r ecor d bef ore us cont ai ns a s i x- page t y pewr i t t en do cumen t on D r

. M i l l er ’ s l et t er hea d t i t l ed “ P s y chol ogi cal 8

E val uat i on”; a t wo- page t y pewr i t t en do cumen t on D r

. M i l l er ’ s l et t er hea d t i t l ed “ Sy nopsi s of K ar en H owel l E val uat i on”;

a n d a nin e -p a g e typ e w ritten d o c u m e n t t it le d “ D r. L . M . M ill e r, P h d N o te s” w h ic h is t h e tra n sc rip tio n o f D r. M ill e r’s hand wri t t en no t es. I t i s o nl y t hi s l at t er do cum ent whi ch co nt ai ns any ref erence t o t he D efend ant ’ s st at e o f m i nd at t he
t i m e o f t he o f fenses

. T hat ref

erence co nsi st s o f

a pa ragraph t i t l ed “[ D efend ant ] [g] o es t hrough event s o f 4/6/ 1 9 9 7 ” and

con t i n u es , “ [ s ] h e come s a cr os s as t r y i n g t o e s ca pe f r om h er t r ou bl ed l i fe. Sh e t ook a l l h er mon ey ( s h e h ad s av ed $650 fo r a c ar) a nd wa s exp ec t i ng fo r t he gro up t o go t o N ew O rlean s. B y [t he t i m e] th ey go t t o rest s t o p she w as a l m o st h a v i n g a n ou t

- of

- bo dy e x pe r i e n c e

. F e l t h e r mi n d w a s s e pa r a t e d f r om h e r bo dy

. W a n t e d t o c a l l h e r mo t h e r a n d g o h om e b u t wa s a fra id to b e c a u se d id n ’t k n o w w h y a fra id b e c a u se d id n ’t e x p e c t t h e o the rs to tur n o n he r if she w a n te d o u t.”

O ur cr i m i nal co d e p rovides t hat “ [a] p ers o n i s cri m i nal l y res p o nsi b l e fo r t he faci l i t at i o n of a fel o ny i f
, know i ng 9

t h at a n ot h er i n t en ds t o c ommi t a s pec i f i c fel on y , bu t wi t h ou t t h e i n t en t r equ i r ed for c r i mi n al r es pon s i bi l i t y u n der § 39- 11- 402( 2)
, t h e per s on k n owi n g l y f u r n i s h es s u bs t an t i al a s s i s t an ce i n t h e commi s s i on of t h e fel on y

. ” T en n

. Code An n

. § 39- 11- 403( a)

. O u r Su pr eme Cour t h as i n s t r u ct ed u s t h at t h e of fen s e of f ac i l i t at i on of

f el on y mu r der r equ i r es pr oof t h at ( 1) a k i l l i ng was comm i t t ed dur i ng t he com mi s s i on of t he un derl y i ng ch ar ged f el ony ; ( 2) t he defendan t kn ew t hat an ot her
p ers o n i nt end ed t o co m m i t t he und erl y i ng fel o ny , b ut d i d not have t he i nt ent t o pro m o t e o r as si st t he co m m i ss i o n of t he

u n der l y i n g f

el on y , or t o be n ef

i t i n i t s pr oce eds or r es u l t s ; ( 3) t h e def en dan t f u r n i s h ed s u bs t an t i al as s i s t an ce t o t h at pe r s on in th e c o m m issio n o f t h e un d e rlying felo n y; an d ( 4 ) the d e fen d a n t fu rn ish e d th a t a ssista n c e kn o w ing ly. S e e S ta te v. E ly, (c o n tinu e d ...)

-23- o n th is p o in t. We n o te , h o w e v e r , th a t D r

. M il le r ’ s a c tu a l r e p o r t d o e s n o t s p e ak s p e c if ic a ll y to the De fe nd a nt’ s st a te of

min d a s o f the tim e of

the of fe ns e s. 8

Ou r s up re me c ou rt

ha s r e c og nize d th a t a def endant’ s capa city

to form the re quisite mental state to commit an offe nse is an issue in criminal prosec utions because the g ener al crimin al l aw in Te nnessee pr ov ide s th a t “ [n]o p e rs on ma y be c on vic te d o f a n of

fe ns e un le ss

. . . [t]h e c ulp able mental state re quired is prove n bey ond a re asonable doubt.”

State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997) (quoting T en n

. C o d e Ann. § 39- 11-201(a )(2) ). Thus, a def

endant may

seek to ne g ate his or he r criminal culpability for a g iven offe nse by adducing proof that he or she lac ked the r equisite mental st ate to commit the offense. See id. For instance, a def endant a ccuse d of committing first deg ree preme ditated m urder may seek to a dduce pr oof that she committed the killing knowing ly , bu t not intentionally : thereby committing sec ond deg ree murder r ather

than first deg ree preme ditated m urder

. Compare Te nn. Code Ann. § 39-13- 202(a) (1) with § 39-13-210(a )(1)

.

I n this case, the D efe ndan t m ai n tains that a prope r psy cholog ical eva luation prior to trial

wo uldha ve e sta

bli sh e d that, a t the tim e of the of fe ns e s, sh e la c ke d the int e nt to c omm it e ith e r f ir st de g re e fe lon y

mur de r o r f

ir st d e g re e pr e me dit a te d mu rd e r. She po int s to Dr

. Au ble ’s te sti mon y that, in her opinion, “at the time of the crime [t he Def endant] was knowing
, in that she was a war e of w hat was ha ppening , but she was not -- did not have a c apaci t y t o p ar t i ci pate in it or to stop the proce eding s.” The D efe ndant ar g ues that, had Counsel developed this proof prior to her

g uiltyplea, he “w ould have r ecog nized that [t he Def endant] had a g ood chanc e of being convicted of fac ilitation of fe lony murder at trial,” an d wo u l d there fore have a dvised her not to ente r a g uiltyplea to thre e counts of first de g ree murder. 9(

. . . con t i n u ed) 9

4 8 S.W

. 3 d 71 0
, 71 9

- 2 0 (T enn. 20 0 1 ).

I ndeed, we a re st ruc k b y t he f act t hat
, nowh er e i n t he D ef endan t ’ s t es t i mo ny does s he as s er t t hat
, ha d her 10

l awyer t o l d her “ x” o r “ y , ” she would have i nsi st ed on go i ng t o t ri al

. R at her, the pro o f s up p o rt s t he t ri al co urt ’ s f i nd i ng tha t t h e D e fen d a n t wa s d e te rm ine d to a c c e p t t h e S ta te ’s o ff e r “w h a te v e r it t o o k .”

-24- The trial c ourt consider ed Dr . Auble’s testimony and found it “not c redible.” This Court does not second-g uess a f

act- finder’ s assessments of c redibility . See, e.g
., State v. Honey cutt, 54 S.W .3d 762, 766-67 (Tenn. 2001) (r ecog nizi ng that, in post-conviction proce eding s alleg ing ine ffe ctive assistance of counse l, “appe llate courts do not subst itute their own infer ence s for those dr awn by the trial court, a nd questions conce rning the cr edibilityof witnesses, the w eig ht and value to be g iven their testimony , and the f

actua l issues raised by

the evidenc e are to be resolved bythe trial judg e.”) Moreove r, we are not pe rsuade d that, even had Counsel de veloped this line of proof, a nd even ha d he advise d the Def

endant that she should g o to trial, the Def endant would ha ve followe d this advice. As set forth more fully

below, the proof establishes that the Def endant pled g uilty in or der to save her codefe ndants from fa cing the death penalty , to better he r chances at obtaining a lenient sentenc e, and to save herse lf from t h e ordea l of a trial. The proof simply does not support the De fenda nt’s contention that she would not ha ve pled g uiltyhad her lawy er de veloped psy cholog ical proof simil ar to that compiled by

Dr. Auble . Ag ain, the Def endant has failed to establish that she was pr ejudiced by her la wy er’ s perf

ormanc e in this reg ard. 10

Th e De fe nd a nt co mpl a ins that Coun se l did not a de qu a te ly pr e pa re he r to ple a d g uil ty

a nddid not adequately

explain to her all of the ramifications a bout her c hoice be tween ple ading g uiltyand p roce eding to trial. Counsel testified to the contrary on this iss ue and the trial court a ccr edited Co u n s e l ’ s t e s t i m o n y

. T h e e v i d e n c e d o e s n o t p r e p o n d e r a t e a g a i n s t t h e tr i a l c o u r t ’ s f i n din g in t his reg ard.

The De fenda nt also complains abou t C o u n s el’s failure “to objec t to or arg ue ag ainst the g ro up ple a

of fe r. ” As no te d by the Sta te in i ts b ri e f, ho we ve r, Te nn e sse e re c og nize s “ pa c ka g e -d e a l” plea a g reem en t s . See, e.g ., Parham v. State, 885 S.W.2d 375, 382-84 (Tenn. Crim. App. 1994). I ndeed, this C ourt has already ruled that the pa ckag e-de al plea of fer in this case wa s valid. See Jason B lake B ry a nt v . St a te , N o. E2 00 2- 00 90 7- CCA -R 3- PC, 2 00 4 WL 44 34 14 , at *1 1- 12 (T e nn . Crim. App., Knoxvil le, Mar. 11, 2004) . See also Joseph L ance Risner v. State, No. E2002-01112- CCAR3

- PC
, 2 0 0 3 WL

2 1 4 9 2 9 2 9
, a t * 5 -7 (Tenn. Crim

. A p p

. , K n o xv il le
, Ju n e 3 0
, 2 0 0 3 ) ; N a ta s h a W. Cornett v. State, No. E2002-00034- CCA-R3-PC, 2002 W L 31174214, at *6 (Te nn. Crim. App., K n o xv il le
, Se p t. 3 0
, 2 0 0 2 ) ; C r y s ta l R e n a Stu r g il l v

. St a te , N o

. E 2 0 0 2

- 0 0 3 8 5

- CC A

- R3

- PC
, 2 0 0 3 WL 239 7 4 3
, a t * 4 ( T e n n

. Crim

. A p p

. , K n o xv il le
, F e b

. 4
, 2 0 0 3 )

. Co u n s e l c o mm itte d n o e rr o r in n ot objecting to the form of the offe r. Moreove r, we note the undisputed testimonyby Counsel that he didtry to ne g oti a te a be tte r de a l for his c lie nt with the pr os e c uti on a ft e r he re c e ive d the of fe r. Th is

c on te nti on is w ith ou t me ri t.

The De fenda nt next asserts that, had he been c ompetent, Counsel would have a dvised her not to p le a d g uil ty

to f ir st d e g re e mur de r a nd a tte mpt e d f ir st d e g re e mur de r, be c a us e sh e ha d n oth ing to-25-

g ain there by

. Counsel should have instead insisted on he r taking her c hance s with a jury and hoping for c onvictions of lesser offe nses. Ag ain, howeve r, the balanc e of the proof supports the c onclusion that the Defenda nt pled guilty to save her friends from the death penalty
, to esca pe the or deal of

a trial, and in hopes that the judg e would prove more lenie nt at senten cing than the jury . The Def endant ha s failed to esta

blish that she would have r efuse d to plead g uiltyeven ha d her la wy er insisted that she g o to trial. Acc ording ly
, she has fa iled to establish that she is entitled to relief on thi s c la im o f i ne ff

e c tiv e a ssi sta nc e of

c ou ns e l.

We ar e s i m i larly

unpersua ded that the De fendant was pre judiced by

her la wy er’ s alleg ed failure to properly

explain lesser -included offe nses and/or the potential sentenc es she wa s fac ing by trial or plea

. The Defendant wanted to acc ept t he S tate’s offer : not as a result of the leg al advice she

was re ceiving , but as a re sult of her re lationships with t he other defe ndants, her understanda ble dre ad of a jury trial, and in hope s that a judge would be more merc iful than a jury -- all valid and pra ctical and re alistic conce rns.

The De fenda nt complains that her lawy er was i neff ective in failing to inform t he trial c ourt about her intellectual and psy cholog ical impairments prior to the g uilty plea he aring , such that the tr ia l c ou rt c ou ld i nd ivi du a lize its c oll oq uy wi th he r. As se t forth b e low , th is C ou rt ha s p re vio us ly he ld that th e tr ia l c ou rt

e rr e d w he n it

c on du c te d th e g uil ty

ple a he ari ng wi th a ll s ix de fe nd a nts responding simult aneously . Fur ther, we ag ree with the Def endant th at Counsel should have informed the trial court that the Def endant had certain difficulties in proce ssing information, so that the trial court could have taken these difficulties into acc ount when questioning the Def endant a bout her plea. Neverthele ss, we conc lude later in this opi nion that the trial court’ s err or in this reg ard w as harmless be y ond a re asonable doubt. Thus, we find that the Defe ndant suffe red no pr ejudice by her attorney ’s fa ilure in this reg ard.

Finally , the Def

endant c ontends that her la wy er w as ineffe ctive in his repr esentation of her at the sente ncing hearing in that he “failed to eff ectively develop mitiga

ting e vidence that could have le s s e n e d h e r s e n t e n c e u p o n c o n v i c t i o n

. ” T h e D e f e n d a n t f a i l s t o t e l l u s , h o w e v e r , o f w ha t th is undevelope d evidenc e consists. Dr. Miller’ s report was admitted at the s entenc ing hearing. Counsel also ca lled two of the De fenda nt’s friends and two of her family members to testify . The De fendant did not call any witnesses at the post-conviction hearing who she contends should have been c alled during the sentenc ing he aring . To the extent that the Defe ndant implies that Counsel should have hired a nd called D r. Auble or a counte rpar t , we note that the trial court f ound this testim ony

“not

cre dible,” and w e ther efor e fa il to see how such pr oof would have reduc ed the Def endant’ s sentence

. The trial judg e -- who pre sided over both the s entenc ing he aring and the post-c onviction hearing -

- no te d th a t he fo un d mo re mit ig a tin g fa c tor s in favo r of the De fe nd a nt tha n a ny

of he r c od e fe nd a nts

. The De fenda nt has failed to de monstrate that her lawy er’s p er formanc e in this reg ard w as either defic ient or pre

judicial. We simi larl yreje ct the De fendant’s contention that her lawy er’ s closing arg ument at t he sentencing hearing constituted ineffe ctive assist ance of counse l. We are c onfident that the trial court made its sentencing decision base d on the evidenc e prese nted at the sentenc ing hearing, and would have ma de the sa me dec ision reg ardl es s o f t h e level of eloquenc e attaine d by Cou ns e l du ri ng fi na l arg ume nt. Th is c on te nti on ha s n o me ri t.-26-

I n sum, we ag ree with the Def endant that Counsel’s pe rformance with reg ard to the transfer hearing was defic ient, but f ind that the Def

endant suffe red no prejudice there by

. I n al l other

re sp e c ts, we ho ld that the De fe nd a nt h a s f a ile d to e sta

bli shby c le ar andc on vin c ing e vid e nc e that, bu t fo r he r la wy e r’ s a lle g e d failu re s to pr ov ide he r w ith a de qu a te le g a l a dv ic e , th e re is a re a so na ble pr ob abil ity

that sh e wo uldha ve re fu se d to ple a d g uil ty a ndwo uldha ve ins ist e d o n g oin g to t ri a l. Acc ording ly , the Def

endant is not entitled to post-conviction relief on the basis of inef

fec tive assistance of counse l.

II. ADMISSIBIL ITY OF EXP ERT TE STIMONY I n conjunction wit h her a lleg ations of ineff ective a ssistance of c ounsel, the De fenda nt complains that the trial court erre d in refusing to admit expert testimonyas part of her pr oof about Counsel’s perf

ormanc e. At the post-c onviction hearing, the Def endant pr offe red the testimonyof attorney W. Thomas Dillard as an e x pert on the issue of the quality of Counsel’s leg al re prese ntation of the De fenda nt. The trial court had previously ruled this evidenc e inadmissible. The De fendant

n o w c o n t e n d s t h a tth e tr i a l c o u r te rr e d i n r e f u s i n g t o a d m i tt h i s p r o f

f e r e d e x p e r tt e s t i m o n y.

Ou r R u l es o f Ev i d en ce p ro v i d e t h at “[ i ] f s ci en t i fi c, t ec h n i ca l
, o r o t h ers p ec i al i z ed k n o wl ed ge will substantiallyassist the trier of f act to unde rstand the e vidence or to determine a fa ct in issue, a wi tne ss q ua lif

ie d a s a n e xpe rt by kn ow le dg e , s kil l, e xpe ri e nc e , tr a ini ng , o r e du c a tio n may te sti fy in the form of

an opinion or otherw ise.” Te nn. R. Evid. 702. I n this case, the D efe ndant wante d Mr. Dillard to testify

about his “spec ialized kno wl ed ge” c oncerning the eff ective r epre sentation of criminal def

ense c lients. I n ruling Mr. Dillard’s te stimonyinadmissible, the trial judge stated,

This Court [has] ten (10) y ear s experience as a criminal defense lawy er, ove r twen t y -f ive (25) y ear s as a c riminal court judg e and a working knowledg e of the standards imposed by

Ba x ter v. Rose, 523 S.W. 2 d 9 3 0 (Tenn. 1975) , and other rele vant ca ses, [and] does not need the assistance of an e x pert in dete rmining the issue of i neff

ective assistance of counsel. This court knows the standards a nd how to a pp ly the m.

Whil e the De fenda nt does not quibble with the trial judg e’s e x perie nce, she does postulate that the tr ia l ju dg e ’s “ no tio ns of wh a t c on sti tut e s c omp e te nt re pr e se ntatio n may be fr oze n in tim e .” F or

thi s
rea son, she ar g ues, the trial judg e er red in not admitting Mr . Dillard’s testimony in order to pr ovide h i mw i t h s u b s t a n t i a l a s s i s t a n c e i n d e t e r m i n i n g w h e t h e r C o u n s e l p e r f

o rm e d e f f e c t i v e l y.

O u r s u p r e m e c o u r t i n s tru c t s u s t h a t“ [ q ] u e s t i o n s r e g ar d i n g t h e q u a l i f i c a t i o n s , a d m i s s i b i l i t y, rele vancy , and compe tency of ex pert testim ony are matters lef t within the broad discre tion of the trial court.” State v. Stevens, 78 S.W .3 d 8 1 7
, 8 3 2 (Tenn. 2002). This Court will not overturn a trial

c ou rt ’s ru lin g on the a dmi ssi bil ity of e xpe rt te sti mon y abs e nt a fi nd ing that the tr ia l c ou rt abu se d it s dis c re tio n in a dmi tti ng or e xclu din g sa me . I d. Th is C ou rt sh ou ld f inda n a bu se of dis c re tio n o nly wher e it appea

rs that “‘ the trial court applied an incor rec t leg al standar d, or re ache d a decision which is a g a ins t lo g ic or

re a so nin g that c a us e d a n in jus tic e to the pa

rt y c omp la ini ng .’ ” I d. (q uo tin g State v. Shuck, 953 S.W .2d 662, 669 (Tenn. 1997) ). We find no such a buse of discr etion here

.-27-

This Court reviews many

appea ls of post -convic tion case s dealing with claims of inef fec tive assistance of counse l. I n the vast majority of these case s, the trial court has made an informe d and

c or re c t de c isi on , e ve n with ou t the ty pe of e xpe rt te sti mon y

a dv oc a te d a s n e c e ssa

ry by the De fe nd a nt. And althoug h the Def

endant state s in her brie f that “a ppellate c o u rt j u d ges g ener ally are not leg al

e xpe rt s o n c ur

re nt sta nd ard s of crimi na l def e ns e pr a c tic e ,” thi s Court man a g e s to disp os e of the se
case s on appea l without the “substantial assistance” of expert testimony by criminal def

ense la wy ers in the rec ords. I ndeed, the Def endant has not cited us to a sing le ca se in which the post-c onviction court wa s found to be in er ror f or re fusing to admit such testimony . Rather, she rel i es o n case s dealing with claims of civil malprac tice. We ar e not per suaded: Strickland a n d Ba x ter do not addre ss claims of civil malprac tice, and neither case , nor their prog eny , imply that expert testimony is nece ssary

for the r esolution of a cla im of ineffe ctive assistanc e of c ounsel.

Th e tr ia l c ou rt

didno t a bu se its dis c re tio n in re fu sin g to a dmi t Mr . D ill ard ’s te sti mon y . T his issue is without m erit.

III . C ON STIT UT ION AL VA LID ITY OF THE D EF EN DA NT ’S G UI LTY P LEA A. Applicabl e law Th e De fe nd a nt a lso c on te nd s that sh e is e nti tle d to po st- c on vic tio n r e lie f b e c a us e he r g uil ty ple a s do no t pa ss c on sti tut ion a l mus te r. Spe c if ic a lly
, sh e a sse rt s that sh e did no t e nter h er gui lty pleas voluntarily , knowi n gl y , and intellige ntly , as re quired by Boy kin v. Alabama, 395 U .S. 238 (1969) a nd State v. Macke y , 553 S.W .2d 337 (Tenn. 1977) . We disag ree

.

B oy kin is the se min a l c a se in f e de ra l ju ri sp ru de nc e de a lin g wi th the c on sti tut ion a l va lid ity of a g uiltyplea by

a criminallyacc used. B oykin r ec o gn i z ed that, upon entering a plea of g uilt, a

c ri min a l de fe nd a nt w a ive s se ve ra l fun da me nta l fe de ra l con sti tut ion a l rig hts : the privi le g e a g a ins t

se lf -i nc ri min a tio n, the ri g ht t o tria l by jury , a ndthe ri g ht t o c on fr on t one ’s a c c us e rs . Se e 39 5 U .S. at 243. The B oykin court held that,

“[f]or this waiver

to be valid under

the Due Proc ess Clause, it must be ‘an intentional

re lin qu ish me nt o r a

ba nd on me nt o f a

kn ow n rig ht o r p ri vil e g e .’ John so n v . Z e rbst, 304 U.S. 458, 464, 466 (1938). Consequently , if a de fendant’s g uiltyplea is not equally voluntary

and knowing , it has been obta ined in violation of due proc ess and is the re fo re vo id. Mo re ov e r, be c a us e a g uil ty ple a is a n a dmi ssi on of

a ll the e le me nts of a f ormal criminal charg e, it ca n n o t b e truly voluntary

unless the def

endant possesses an unde rstanding of the law in relation to the fa cts.”

I d. at n.5 (quoting McCarthy v. Uni t ed S t at es, 394 U.S. 459, 466 (1969)) . To assess whe ther a de fe nd a nt’ s p le a

is e qu a lly

vo lun tary

a nd kn ow ing , B oy

kinre qu ir e s a

tr ia l c ou rt , b e fo re it a c c e pts

a ple a of g uil t, to “ c a nv a ss[] the ma tte r [o n th e re c or d] w ith the a c c us e d to make su re he ha s a fu ll

u n d er s t an d i n g o f w h at t h e p l eaco n n o t es an d o f i t s co n s eq u en ce

. ” 3 9 5 U. S

. at 2 4 4

. On l y t h ro u gh such colloquy

can th etrial court, a nd any

subsequent re viewing court, de termine whe ther the a ccuse d is i nte nti on a lly

re lin qu ish ing his or

he r c on sti tut ion a lly

pr ote c te d rig hts . Se e id. a t 24 2- 24 3. Th us , ou r o wn su pr e me c ou rt

ha s r e c og nize d th a t “ the re c or d o f a c c e ptanc e of a de fe nd a nt’ s p le a

of g uil ty-28-

must affirmatively

demonstrate that h i s decision was both voluntary and knowledg eable , i.e., that he has been made awa

re of the sig nificant c onsequenc es of suc h a plea ; otherwise, it will not amount to an ‘intentional aba ndonment of a know n rig ht.’” Mac key , 553 S.W .2d at 340. Furthermore , a tr ia l c ou rt “ sh a ll no t a c c e pt a ple a of g uil ty wi tho ut f ir st, by a dd re ssi ng the de fe nd a nt p e rs on a lly in open court, determining that the plea is voluntary and not the result of forc e or threats or of promises apart from a plea

ag ree ment.” I d. at 341.

I n Bla nkenship v. State, our supre me court rec og nized that a plea of g uiltycannot be voluntary in the sense that i t co n s t i t u tes an intellig ent admission that th e ac cu s ed committed the offe nse unless the a ccuse d has re ceive d

“ re a l no tic e of

the true natur e of

the c ha rg es a g a ins t hi m, the fi rs t a ndmos t universally

rec og nized requireme nt of due proc ess.”

858 S.W

. 2 d 8 9 7
, 9 0 4 (Tenn. 1993) (quoting Marsha ll v. L onberg er, 459 U .S. 422, 436 (1983)). “He nce, the re must be a

full expl an at i on of the off ense to whic h the def

endant is plea ding and ‘nothing to indicate that he w as incompete nt or otherwise not in control of his me ntal fac iliti es’ at the time the pl ea i s entered.” I d. (quoting Br own v. Perini, 718 F.2d 784, 788 ( 6th Cir. 1983). Moreove r, in addition to an understanding of t he charg es, t he accuse d must be aware of t he dire ct conseque nces of

his or her guilty plea. See id. at 905. “The standard was and rema ins whether the plea r epre sents a voluntary and int ellige nt choice among the alternative courses of action open to the defe ndant.” North Carolina v. Alford, 400 U .S. 25, 31 (1970).

When apply ing the se principles to a particula r def endant who ha s offe red a

particula r plea
, a court char g ed with determining whe ther [a g uiltyplea was ] “v o luntary ” and “int ell ige nt” must look to various circumstantial fa ctors, such a s the relative int e lli g e nc e of the de fe nd a nt; the de g re e of his famil iari ty

wi th c ri min a l pr oc e e din g s; whether he wa s repr esente d by

competent c ounsel and had the opportunity to confe r with counsel about the opt i o n s av ailable to him; the extent of advice f rom counsel

a ndthe c ou rt

c on c e rn ing the c ha

rg e s ag a ins t him; an d the re a so ns fo r his de c isi on to plead g uilty , including a desire to avoid a g reater pe nalty that might re sult from a jury tr ia l.

Bla nkenship, 858 S.W .2d at 904. The f ocus of the knowing and vol untary inquiry is “whethe r the defe ndant actually does understand the sig nificanc e and c onsequenc es of a particula r dec ision and wh e the r the de c isi on is un c oe rc e d. ” Go din e z v. Mo ran, 50 9 U. S. 38 9, 40 1 n. 12 (1 993). A gui lty plea is not voluntary

if it is the product of “[i]gnora nce, inc ompr eh en s i o n , coer cion, terr or, inducements, [or] subt le or blata nt threats . . . .” B oykin, 395 U.S. at 242-3.

B. A nal ys is We will first address the De fendant’s contention that her g uiltyplea wa s n o t voluntary beca use the plea

barg ain offe red by

t h e S t at e wa s coer cive. That offer require d the Def

endant to, inter alia, ple ad g uiltyto three c ounts of first deg ree murder and one count of attempted first deg ree murder. Sente ncing for these offe nses would t h en be lef t to the trial court’s discr etion afte r aIn po i nt of f act , t he D ef end ant was no l o nger a j uveni l e when f aced wi t h t he p l ea b argai n off er. 11

Jur y s el ect i on was s che dul ed t o begi n s hor t l y af t er t he pl ea offer was made. 12

-29- se nte nc ing he ari ng . T he Sta te wo ulddr op its requ est fo r the de a th p e na lty a s to the fo ur

a du lt defe ndants. This offe r, acc ording to the Def endant, place d her “in a position of extreme coe rcion. [S he] ha d the burden of her four adult codef endants, all of whom we re he r close f riends, fa cing the pr ob abil ity

of the de a th p e na lty

if sh e didno t g o a lon g wi th the ple a a g re e me nt. No juv e nil e sh ou ld 11 be for ced to shoulder

such a bur den.” T he De fendant further contends that the l ast-minute timing of the off er added to its coe rcive eff ect, a nd that “[w]hat the St ate did wa s the equivale nt of placing 12
a g un to the adult codef

endants’ heads and forc ing [t he Def endant] to a cce pt the packa g e dea l plea ag ree ment if she wanted to preve nt their deaths.” The Defe ndant ar g ues that she r ece ived no prope r consideration for ac cepting the offe r. Without citation, she urg es this Court to h o l d the State’s “tac tics” as “ void and . . . per se unduly

coer cive a s a matter of

constitutional law.”

We are sy mpathetic to the Def endant’ s arg ument that four of her c odefe ndants had fa r more at stake in this matter than did she. We a re a lso sy mpathetic to her arg ument about the amount of pr e ssu re sh e fe lt re la tiv e to sta nd ing be tw e e n he r frie nd s a ndthe de a th p e na lty . N e ve rthe le ss, thi s Court has alre ady determined that the plea of fer made in this case was not unconstitutional, even a s to the other juvenile. See Jason Blake Bry ant v. State, 2004 WL 443414, at *11-12. See also J oseph L ance Risner

v

. St a te , 2 0 0 3 WL

2 1 4 9 2 9 2 9
, a t * 7

- 9 ; N a ta s h a W. Co r n e tt

v

. St a te , 2 0 0 2 WL 31 17 42 14 , at *6 ; Cry sta l Re na Stu rg ill v. State , 200 3 WL 23 97 43 , at *4. As we state d inthe Stu rg ill

case ,
Plea offe rs by the state may leg itimately require that all codef

endants a g ree befor e the offe r is extended to any defe ndant, and suc h a conting ency does not equate with a

coer ced g uiltyplea. See , e.g ., Parham v. State, 885 S.W.2d 375 (Tenn. Crim. App. 1994). I n this respec t, the fac t that the petitioner’s concern for De an Mullins play ed a part in her decision to plead g uiltydoes not neg ate the va lidityof her plea. Ma ny fac tors other than the fac ts may leg itimately

influence a decision to plead g uilty , such

a s, re du c tio n o f s tr e ss o n a de fe nd a nt and hi s or her fa mil y , th e re mov a l of c e rt a in conseque nces, a nd reduc tion of actua l expos ure.
Cry stal Rena Sturg ill, 2003 W L 239743, at *4. Acc ording ly
, we reje ct the Def endant’ s invitation to find the plea of

fer unconstitutionallycoer cive on its fac e.

Of course , our disinclination to find the plea ba rg ain offe r per

se coe rcive does not resolve the iss ue of wh e the r it wa s coe rc ive a s to the De fe nd a nt. I n th is r e g ard , th e De fe nd a nt u rg e s u s to undertak e t h e “t o tality

of the c ircumstance s” inquiry set forth in I n re I

barr a, 34 Cal. 3d 277, 666 P.2 d 98 0, 19 3 Ca l. R ptr . 5 38 (1 98 3) , in c lud ing the “ sp e c ia l sc ru tin y ” of se ve ra l sp e c if

ic fa c tor s. Th is Court has previously considere d I barr a in this context , howeve r, and, w hile rec og nizi ng that sever al of the fa ctors may

be re levant, dec lined to adopt I barr a as the model. See Joseph L ance Risner, 2003 WL 21492929, at *5. We see no r eason to take a diffe rent a pproac h now.-30-

I n revie wing the circ umstances surro unding the State’s plea of fer , we f ind that it was not

c oe rc ive a s to the De fe nd a nt. Th e Sta te did no t mis re pr e se nt a ny fa c ts to the De fe nd a nt i n o rd e r t o induce he r p l ea , an d had a r easona ble and g ood faith ca se ag ainst the code fendants ag ainst whom the death penalty wa s b eing soug ht. Cf. Ibarr a, 666 P.2d at 987 (spec ify ing one of the re levant fac tors as whe ther the induc ement for the plea is prope r). The re w ere sufficie nt fac ts developed during the State’s investig ation of the c rimes to support the Defenda nt’s g uilty plea. Cf. id. (listing

a sec ond fac tor as whe ther ther e is a fac tual basis for the g uilty plea)

. The proof also demonstrate s that th e De fe nd a nt w a s mo tiv a te d to pl e a d g uil ty fo r r e a so ns in a dd iti on to r e mov ing the po ssi bil ity of the de ath pena lty

as to her f riends. The Def

endant testified at the post-conviction hea ring that she de c ide d to a c c e pt the ple a ba rg a in n ot o nly

to k e e p f ou r of he r c od e fe nd a nts fr om f a c ing the de a th penalty , but in hopes that she would re ceive a more lenien t s en t en ce from the court. Counsel te sti fi e d th a t, d urin g h is di sc us sio ns wi th the De fe nd a nt a bo ut the of

fe r, sh e tol d h im “ sh e simply wanted a chanc e one day

to ge t out [ of prison], just a chance.” There is also proof in the re cord that the De fe nd a nt w a nte d to a vo id the or de a l of a tr ia l. C ou ns e l te sti fi e d th a t th e De fe nd a nt t oldhim she wa nted to plead “ to ge t this over with.” Counsel further stated that the Def

endant told him t hat sh e didno t w a nt h e r f

a mil y pr e se nt at th e g uil ty

ple a he ari ng be c a us e sh e wa s “ a sh a me d” anddid not want “to fac e her

family .” I ndeed, at the subsequent sente ncing hearing, w hen Counsel ca lled the De fe ndant to testify , he first informed the court, “Your honor , my client has a sked me if he r family could just lea ve the courtroom.

. . . [S ]he doe sn’t want to te stify in f ront of t h em

. ” The potential humiliation attenda nt upon a trial is, of course , far g reater than that attendant upon a ple a
o f gu i l tan d/ o r as en t en ci n g h ea ri n g.

The De fenda nt raises the point that she ha d nothing to g ain from he r g uiltyplea, be cause she could have waived jury

sentenc ing if

and whe n a jury

found her

g uiltyof t h e cr i m es to which she pled. This arg ument overlooks the sig nificanc e which se ntencing courts fr equently place upon a de fe nd a nt’ s d e c isi onto a c c e pt r e sp on sib ili ty for hi s or her a c tio ns a ndple a d g uil ty . T ri a l c ou rt s often g rant some lenie ncy following a g uiltyplea that would not be available upon a jury verdic t of g uil t. T he De fe nd a nt’ s h op e fo r j ud ic ia l me rc y up on he r p le a

wa s, we fi nd , n ot w ith ou t so me ba sis in re a li ty

. T h a t s h e e n d e d u p w ith th e mo s t s e v e r e s e n te n c e p o s s ib le a t th e e n d o f h e r s e ntencing hearing doe s not impl y

that her hope for lenie ncy was mer e fantasy

.
Th e De fe nd a nt w a s f

a c e d w ith a

he art -w re nc hin g c ho ic e . H e r f a mil y c ou ns e le d h e r a g a ins t ple a din g g uil ty . H e r l a wy e r i nit ia lly a dv ise d he r not to take the ple a ba rg a in, in h op e s th a t he c ou ld

ne g oti a te a

be tte r of fe r. Th e De fe nd a nt h a d tw o d a y s in wh ic h to c on sid e r h e r o pti on s a nddis c us s matters with her

lawy er. H er a lternative w as to g o to trial and fa ce twe lve of her peer s -- all of whom would hear the fac ts of the case and see the horrif ic photog raphs of

the victims, photogra

phs that the Def endant herse lf ref

used to look at. She would have fac ed being found g uiltyof the same offe nses to which she pled, a nd would have f ace d the same se ntence s s h e eventua lly was orde red to serve. Additionally , her c odefe ndants would have fac ed the de ath pena lty . I n short, while the Def endant may have f ound herse lf on the horns of a dilemma, the re cord supports the trial court’s c onclusion that the choice she eve ntually made wa s not the result of coer cion by the State. This issue is without

me ri t.-31-

The De fenda nt also arg ues that, in ple ading g uilty to thr ee counts of first deg ree murder, she “bra nded her self” a

dang erous f

elon and admitted to three ag g ravating c ircumstance s, thereby g iving the sentenc ing c ourt the authority to impos e t h re e consecutive sente nces of life imprisonment without the possibili ty of parole

. She contends that “[n] o defe ndant with a proper knowledg e and understanding of t his fac t would have voluntarily enter ed a g uilty plea,” beca use she “ had a c hance of being convicted of

lesser inc luded offe nses ” h ad s h e chosen instea d to go to tria l. More

e mph a tic a lly , s he de c lare s th a t “ [i]t is imp os sib le to b e lie ve that a de fe nd a nt i n [he r] p os iti on wo uld have e nter ed a gu iltyplea a nd submitt ed her self to a life sentenc e had she fully understood her situatio n o r ha d the c oe rc ion inv olv e d with the pa c ka g e de a l not be e n p re se nt. ” Th is a rg ume nt i s a reiter ation of the De fenda nt’s basic one : that she had nothing to lose by g oing to tria l, and nothing t o gai n b y p l ea d i n g gu i l t y

. T h er ef

o re , we s h o u l d i p s o fa ct o fi n d h er p l ea i n v o l u n t ar y , u n k n o wi n g, and constitutionally

invalid.

We find this arg ument unpersua sive. The De fendant’s decision to plead g uiltywas, in the fi na l a na ly sis , h e r o wn . Wh e the r sh e ma de the sa me c ho ic e that so me on e e lse wo uldha ve ma de is irrele vant. Our inquiry

is lim ited to whether

she made the choice afte r having been f ully informed of the nature of the charg es aga inst her and the ramifications of pl eading g uilty
, in such a manne r that she under stood the information being provided. This C ourt does not assess a de fendant’s decision to plead g uilty on the basis of what “no” de fendant would have done , g iven a f ull understanding of the plea. A defe ndant may validly choose to ple ad g uilty to the highe st c rimes char g ed, even w ithout an ag ree ment as to the sentenc e. To arg ue that “no” defe ndant would do so is misplace d rhetoric

. This contention is without m erit.

The De fe n dant also conte nds that her plea was not intellige nt. The De fendant submit ted pr oo f at th e po st- c on vic tio n h e ari ng that, at the tim e of he r g uil ty ple a , she wa s f un c tio nin g “ wi thi n the borde rline re tarde d rang e of intellig ence ,” ac cording to Dr. M i l l er’s report. Howeve r, Dr. Miller’s re port also noted that the Defenda nt was “not suffering f rom primary

mental re tardation and in point of fact ha s the potential to fu n cti on within the aver ag e rang e of intellig ence .” Dr . Miller t e s t i f i e d t h a tt h e D e f

e n d a n t ’ s I. Q

. w o u l d h a v e h a d n o e f f e c to n h e r

ab i l i t y t o e n t e r

a v o l u n t ar y, knowing plea of

g uilty , nor would it a ffe ct her ability to a ssist her lawy er in her de fense . Dr. Auble ’s

re p o rt i n d i ca t ed t h at , i n J u l y 2 0 0 2
, t h e D ef

en d an t ’s “[ i ] n t el l ec tual abili t i es fe l l wi t h i n t h e l o w a v er age rang e” and that her pe rformance I .Q. was f ourtee n points higher

than that obtained by

Dr. Miller. Dr. Auble termed this “ a signific ant improvement” and opined that the ea rlier, lowe r test re sult may have be en due to the Def

endant’ s signific ant distress at the time. The rec ord further indicates that the De fe nd a nt h a s o btaine d h e r G ED wh ile inc arc e rate d s ub se qu e nt t o h e r p le a . In o ur vie w, the se indicia ar e suff

icient to support the trial court’s finding that the Def endant had sufficie nt intelligenc e to enter a valid g uiltyplea.

The De fenda nt also points to evidence of her e motional and p s y ch o l o gi cal diff iculties as proof that she was unable to enter a valid g uilty plea. Dr . Miller’s re port states that the De fendant

“ do e s n ot h a ve a [n] aud ito ry de fi c it b ut she d oe s h a ve dif fi c ult y a tte nd ing to i nf

orma tio n th a t is prese nted auditorily . She particula rly has diffic ulty

when a ny

level of complexit y is added.” The

re po rt fu rther pro vid e s th a t th e te sti ng data ind ic a te d th a t th e De fe nd a nt w a s “ su ff e ri ng fr om a-32-

signific ant emotional disturbance char acte rized by her te nuous contac t with reality [,] indications of para noid ideation and cle ar indications of frag mented and c onfused thi n k i n g. Under pressure her thi nking de te ri or a te s e ve n mor e ra pid ly

. . . .” Dr

. Mil le r te sti fi e d at th e po st- c on vic tio n h e ari ng that, in h is o pin ion , the on ly way the De fe nd a nt co uld ha ve e nte re d he r g uil ty ple a vo lun tari ly , kno wi ng ly

a ndint e lli g e ntl y

wa s if sh e ha d h a d a

pr e vio us “ e xten siv e c on ve rs a tio n” abo ut the ple a a nd a ll o f i ts ramifications. Dr. Auble wa s more blunt: she testified that “[T h e Defendant’s] m ental and emotional state at that time [of the plea hearing] was sufficie ntly impaired that he r ente ring the plea was not in a knowing and voluntary fashion.”

The De fenda nt testified that Counsel rea d the Waiver of Rig hts and Plea of Guilty document to her be fore she sig ned it, bu t s h e co u l d n o t reme mber whe ther he explained to her any of her constituti o n a l r ig h ts

. Sh e s tate d th a t s h e d id n o t a s k h im a n y q u e s ti o n s ab o u t it

. Sh e s tated that Counsel did not dis cuss many of the sente ncing aspec ts involved.

Counsel insisted that he dis cussed the plea in exhaustive detail with the De fendant and that she appe are d to understand it.

The trial c ourt found t h at the Def endant a nd Counsel “did in fac t have e x tensive

conver sations about every aspec t and consequenc e of the pl ea.” The court further found that “[the plea] was explained [by the court] in g reat detail and in simple lang uag e what the defe ndants wer e pleading g uiltyto and the sentenc es that could be imposed and the pe titioner said she under stood. Th e re is n o r e a so n to be lie ve that sh e didno t.” F ina lly , th e c ou rt fo un d th a t th e De fe nd a nt, “ a t a ll times she has testified, ha s demonstrated an ability to understand state ments m ade to her and questions asked of he r, and ha s been a ble to communicate w ell.”

The De fenda nt’s arg ument is that, give n her pa rticular psy cholog y and the pa

rticular circ umstances surr ounding he r g uiltyplea, including her la wy er’ s perf ormanc e and the f

act that the trial court a ddresse d all of the de fendants joint ly at the g uiltyplea he aring , s h e wa s i n ca p ab le of entering a constitutionallyvalid g uiltyplea. In this proce eding
, she must prove this contention by clea r and c onvincing evidenc e. We conc lude that she ha s failed to do so. The D efe ndant’s ar g ument depends upon the trial court acc rediting her testimony and that of her experts, and discre diting the te sti mon y of Cou ns e l. H ow e ve r, the tr ia l c ou rt didjus t th e op po sit e . T he tr ia l c ou rt ma de a sp e c if ic finding that Dr. Auble’s testimonywas “ not cre dible.” F urther, the trial court a ccr edited Counsel’s testimonythat he discussed e x tensively the g uilty plea with the Defe ndant and that she understood it. Certainly , the Def

endant’ s perf

ormanc e at the post-c onviction hearing doe s no t b o l s t er he r
ar g u m e n tt h a ts h e i s w i t h o u t t h e c ap a c i t y t o u n d e r s t a n d c o m p l e x l e g a l p r o c e e d i n g s a n d t e r m i n o l o g y. See Moten v. State, 935 S.W.2d 416, 422 (Tenn. Crim. App. 1996) (re cog nizi ng that, in determining whether a def endant’ s g uiltyplea is know ing and voluntary , the re viewing court “ may consider any
r e l e v a n te v i d e n c e i n t h e r e c o r d o f t h e p r o c e e d i n g s , i n c l u d i n g p o s t

- c o n v i c t i o n p r o c e e d i n g s

. ” ) In

s h o rt , t h e re co rd d o es n o t s u p p o rt t h e De fe n d an t ’s co n t en t i o n t h at s h e w as i n ca p ab l e o f e n t er i n g a
va lidple a du e to h e r m e nta l a nde mot ion a l st a te , a ndthi s is su e is the re fo re wi tho ut m e ri t.-33-

As set forth a

bove, upon a c hallenge t o t h e v al i dity of a g uiltyplea, we must ex amine the surrounding circ um s t an ce s, including the Def endant’ s relative intellig ence , the deg ree of her familiarity

with criminal proce eding s, whether she was repre sented by competent c ounsel and ha d adequate opportunity to c onfer with him, the extent of the advice she rec eived f rom her la wy er a nd the trial court reg arding the cha rg es ag ainst her, an d h er rea sons for dec iding to plea d g uilty . See Bla n k e n s h ip, 858 S.W.2d at 904. We have de termined that the D efe ndant was suf ficiently intelligent to e nte r a va lidg uil ty ple a

. As to he r famil iari ty wi th c ri min a l pr oc e e din g s, it is u nd isp ute d th a t th is

case was the D efe ndant’s introduction to our criminal justice sy stem. Neve rtheless, by the time of the plea ba

rg ain offe r, the De fenda nt had bee n “in the sy stem” for almost a y ear . During this ti me,
s h e h ad ex t en s i v e c o n t ac twi t h h erl aw y eran d h ad ex p er i e n c ed t h e j u v en i l e c o u rt p ro ce ed i n gs
a tte nd a nt u po n h e r t

rans fe r t o c ri min a l c ou rt . Wh ile no t a se a so ne d v e te ran o f c ri min a l pr oc e e din g s, the Def endant did ha ve some signific ant exposure to the m by the time she enter ed her plea. We have p r e v io u s ly d is c u s s e d th e D e f e n d a n t’ s r e a s o n s f

o r p le a d in g g u il ty a n d d e te r mi n e d th a t s h e d id not do so as the re sult of coer cion or other improper ba sis.

The qua lityof the De fenda nt’s leg al re prese ntation is, of course , a major bone of c ontention in this m atter. The Def

endant c ontends that her la wy er w as ineff ective in his advic e to her

reg arding the S tate’s offer

. The trial c ourt, howeve r, cr edited the law y er’ s testimonyin this reg ard, f inding that

c ou ns e l in ve sti g a te d e ve ry po ssi ble de fe ns e a nd dis c us se d sam e wi th the De fe nd a nt; he “ ta lke d w ith the [De fe nd a nt] in g re a t de ta il abo ut a ll a sp e c ts of [the ] p le a a ndthe c on se qu e nc e s th e re of ” ; he did not “ ag ree for her to ple ad g uiltyuntil he was ce rtain she f ully understood what she was doing and that it was in her be st interest”; and that counsel and the Def endant “ did in fact ha ve ex tensive

c on ve rs a tio ns abo ut e ve ry a sp e c t a nd c on se qu e nc e of the ple a ,” inc lud ing dis c us sio n o f the c ha rg e s, lesser- included off

enses, possible punishments, and the rights a nd waivers implicated in a plea

. Whil e the De fenda nt strenuously arg ues t hat counse l’s perf ormanc e in this reg ard w as def icient, we disag ree . Although c ounsel for the Def endant wa s certainly

inexp erienced r elative to the other defe nse attorne y s working on this case, the rec ord supports the t rial court’s finding that counsel spent a g reat deal of t i m e an d ef fort reviewing and re -re viewing with the Def endant a ll of the issues in c id e n t to th e St a te ’ s o f

f e r

. T h e D e f

e n d a n t k n e w th a t, b y p le a d in g g u il ty , s h e w a s g iv in g up any hope that a jury might convic t her of le sser off enses. She kne w that, by

pleading g uilty , her pote ntial benef it was limit ed to a hope that the trial court w ould be lenient in sentenc ing he r, but that, eve n so, she would be spending at least fifty -one y ear s in prison. W e have no doubt that the Def endant’ s lawy er did e verything in his power to educate t he Defendant about what she was doing. Counsel’ s repr esentation of the Def

endant with re spect to the State’s of fer weig hs in favor of

the validity

of the Def endant’ s plea.

We turn now to the manner in w hich the Def endant’ s pleas of g uilt we re taken and the extent of her interac ti o n w ith th e tria l c o u r t. O n F e b ru ar y 2 0
, 1 9 9 8
, th e D e f e n d a n t s ig n e d a Wa iv e r of Rig hts a ndPle a

of Gu ilt y wh ic h p ro vid e d th a t sh e wa s ple a din g g uil ty to one c ou nt of a tte mpt e d f

ir st deg ree murder, thr ee c ounts of first deg ree felony murder, two c ounts o f es p ec ially ag g ravated kidnappi n g , tw o c o u n ts o f a g g r a v a te d k id n ap p in g , a n d o n e c o u n t o f th e f t o v e r $ 1
, 0 0 0

. T h e Pl ea provided that sente ncing for the attempted murder and the murder convictions would be set by the-34-

trial court; the e ffe ctive twenty -five y ear sentenc e for

the re maining c onvictions was t o run
concur rently there with.

L ater that day , the trial court convene d a hea ring in order to takethe Def endant’ s g uiltypleas

as we ll as those of the other defe ndants. Rather tha n take the pleas indi vidually
, howeve r, the trial court ha d all six of the de fenda nts gather tog ether befor e the be nch. The trial court s wo re i n the defe ndants as a g roup, and the n addre ssed them tog ether :

I need y ou all . . . thank y ou, y ou all did speak loudly and eve ry one spoke a nd

a ns we re d th a t qu e sti on [as to b e ing sw orn in ], a ll s ix de fe nd a nts

. Some questions, I

can ask y ou jointly and again, I would ask y ou all to speak loudly and clearly and I will indicated [ sic] that y ou have all answe red f or the re cord, and some questions I will ne ed to a sk y ou individually , and I will have to start out by

a s k i n g yo u a

f e w q u e s t i o n s i n d i v i d u a l l y.

The c ourt then proc eede d to inquire individually as to e ach defe ndant’s name , level of e ducation, and whether he or sh e co u l d rea d and write without difficulty . The re maining que stions asked of the Def endant we re done so in a g roup colloquy , with the court re porter indi ca t i n g the re sponses by noting in th e r e c o r d e ith e r “ A ll d e f e n d a n ts a n s w e r e d a f

f irmati v e ly ” o r

“ A ll d e f e n d a n ts a n s w e r ed neg atively .” The only

other que stion to which the trial court re quired a n individual response fr om
eac h defe ndant was, “ Are y ou all pleading g uiltybeca use y ou are g uilty ? ” The Def endant r e sponded, “Ye s” to this query

. This Court has previously held that this e n masse allocution was insuffic ient and did not meet the re quirements of B oykin and Stat e v

. Neal, 810 S.W .2d 131 (Tenn. 1991) , overr uled on other g ro un ds , B la nk e ns hip , 8 58 S.W. 2da t 90 2, be c a us e the tr ia l cour t “ didno t r e c e ive ind ivi du a l, id e n ti f ie d r e s p o n s e s to e a c h q u e s ti o n ” a s k e d b y th e tria l c o u r t. Se e Jo s e p h L a n c e Ri s n e r , 2 0 0 3 WL 21492929, at *9. See a lso J ason B lake B ry ant, 2004 W L 443414, at *12. The S tate conte nds that thi s Co urt’ s p re vio us op ini on s in Ris ne r andB ry a nt w e re in e rr or on thi s is su e , a ndthat “ [t]ho se opinions apply

the re quirements of Boy

kin and Neal t oo broadly
, rec og nizi ng a constitutional err or wher e none e x ists.” We disagr ee and elec t to follow our previous holding s. The State also c ontends that, e ve n if we findthe ma ss a llo c uti on to p re se nt c on sti tut ion a l e rr or c og niza ble in a po stc on vic tio n p ro c e e din g , th e is su e ha s b e e n w a ive d inthi s c a se be c a us e it “ is b e ing raise d b y thi s defe ndant for the first time on appea l f rom the denial of her post-conviction petition.” As pointed out by the Def endant in her Reply Brief, however, this contention is incorre ct. The D efe ndant ra ised this issue in her

Amended Petition for Post-Conviction Relief. We choose to addr ess the issue on its m e r it s

. A c c o r d in g ly
, w e mu s t d e te r mi n e w h e th e r th e tria l c o u r t’ s e rr o r

inth is r e g ar d a s to the Def endant wa s harmless bey ond a rea sonable doubt. See N eal, 810 S.W.2d at 138; J oseph L ance Risner, 2003 WL

21492929, at *9.

As the Supreme Court pointed out in B oykin,-35- What is at

s ta k e f o r a n a c c u s e d f

a c in g d e a tho r

imp r is o n me n t d e man d s the utmost sol icitude of whic h courts ar e ca pable in canvas s i n g the matter w ith the

a c c us e d to make su re he ha s a f ull un de rs ta nd ing of

wh a t th e ple a

c on no te s a ndof

its

c on se qu e nc e . Wh e n th e jud g e dis c ha rg e s that fu nc tio n, he le a ve s a re c or d a de qu a te for a ny revie w that may

be later soug ht and fo re stalls the spin-off of c ollatera l pr oc e e din g s th a t se e k to pr ob e mur ky me morie s.
395 U.S. 243-44 (citations omitted). B eca use the trial c ourt did not indivi dually question eac h de fe nd a nt i n th is c a se , th e re c or d o f the ple a su bmi ssi on he ari ng do e s n ot, in andof its e lf, e sta

bli sh the vol untary , knowing and int ellige nt nature of the Def endant’ s plea. Thus, a s pointed out by the Def endant, we are forced to rely on “murky memories” and t he proof adduce d at t he post-convic tion hearing, in a ddition to t he re cord of the submission hearing itself.

Th e me morie s wi th wh ic h we mus t c on te nd are , of c ou rs e , th e De fe nd a nt’ s a ndhe r l a wy e r’ s. We must also contend with the pos t-conviction court’s determination that the Defe ndant’s testimony at the post-convic tion hearing was less cre dible than that of her lawy er. As set forth a bove, we have determined that t h e De fendant possessed the re quisite intelli g ence at the time of he r plea to be capa ble of e ntering a plea

of g uilt. As also set forth above , we ha v e fu rt h er de termined that the Def endant’ s decision to ple ad g uilty was not the result of c oerc ion. The key issue, then, with respe ct to t h e v alidity

of the De fenda nt’s plea in the c ontext of the mass a llocution was whethe r she understo o d what she was doing to the requisite deg ree . Only if the re cord de monstrates that she

su ff ic ie ntl y un de rs too d to wh a t sh e wa s p le a din g , a ll o f the ramif ic a tio ns of

he r ple a , a ndthe ri g hts that she wa s thereby

abandoning , can w e uphold her plea.

Counsel was adamant about his repe ated a nd exte n s i v e co nversations with t he De fendant about her plea. The post-conviction court acc redited this testimony

. Dr. Miller testified that, so long as she ha d adequate pre paration prior to the g uiltyplea he aring , the Def endant wa s capa

ble of compre hending the p r o c eeding . The De fendant claimed during her te stimonythat she wa s not “sure” if he r l a wy e r e xpla ine d h e r c on sti tut ion a l r ig hts prior to the ple a

he ari ng ; th a t he didno t r e vie w w ith her w hat questions to expect from the trial c ourt; and did no t review with her a number of issues

re g ard ing se nte nc ing . T he tr ia l c ou rt fo un d th is t e sti mon y

un pe rs ua siv e . M or e ov e r, we findit signific ant that nowher e in her post-conviction t estimony did the Defenda nt claim that she did not understand what she was doing, did not understand what her alternative was, or did not under stand t h e co n sequenc es of he r dec ision. Nor did she testify that, had she ha d a more thoro u gh understanding of what her g uilty plea meant, she would have chosen instea d to go to trial. Cf. Glenn Be eler v. State, No. 01C01-9010-CR-00265, 1991 WL 181034, at *4 (Te nn. Crim. App., Nashville, Sept. 16, 2001) (Tipton, J ., concur ring , finding that gro u p p l ea passed c onstitut ional muster eve n with “ no direc t e vidence that the petitioner understood his right ag ainst compuls o ry selfinc ri min a tio n o r the e ff

e c t of his ple a the re on ,” in p art

be c a us e “ pe tit ion e r d id n ot t e sti fy [at the po stc on vic tio n h e ari ng ] that he wa s n ot a wa re of thi s r ig ht n or

didhe state that he wo uldha ve g on e to trial if he ha d been a war e of it.”)

The trial c ourt made the following finding s relative to this issue:-36- Al tho ug h it

wa s not the us ua l pra c tic e of thi s c ou rt , a ll d e fe nd a nts a g re e d to plead g uiltyat the same time. Th is co urt st art e d b y

a sking qu e sti on s in div idu a lly a ndma de c e rt a in that a ll

r e s p o n d e d i n a n u n d e r s t a n d i n g w a y t o e a c h q u e s t i o n a s k e d j o i n t l y. When asked if they

had had any alcohol or drug s within the last twenty -four (2 4) ho ur s, the pe tit ion e r ans we re d ne g a tiv e ly bu t de fe nd a nt S tur g ill a ns we re d “ y e s” and explained. The othe r juvenile a nswere d differ ently from the other s when a sked about his abilityto rea d and write. I t w a s e xpla ine d in g re a t de ta il a nd in simp le la ng ua g e wh a t th e de fe nd a nts

wer e plea ding g uiltyto and the se n tence s that could be imposed and thepetitioner

sa id s he un de rs too d. Th e re is n o r e a so n to be lie ve that sh e didno t. I t wa s ex p l ained in detail and simple lang uag e that a jury trial was be ing waived a lthough t hat was a rig ht they

could insist upon. The petitioner said she understood. When the court a sked if the de fendants were pleading g uiltybeca use t hey

we r e g u il ty , e a c h d e f

e n d a n t w a s a s k e d b y n a me to r e s p o n d in d iv id ually . The p e t i t i o n e r r e s p o n d e d t h a ts h e w a s p l e a d i n g g u i l t y b e c a u s e s h e w a s g u i l t y. The pe titioner responde d aff irmatively

that she wa s pleading g uiltyfre ely and voluntarily

of her own free will and negatively to the question whether any forc e or t h r e a t s o f a n y k i n d h a d b e e n u s e d t o c au s e h e r t o p l e a d g u i l t y. I t was ex plained that if they went to a trial befor e a jury it was possi ble t o be

c on vic te d o f l e sse r o ff

e ns e s. The c ourt asked if

there wer e any

questions by

any defe nd an t s as t o the

a g r e e m e n to r

w h a tw a s t o h ap p e n a f

t e r w ar d s

. T h e p e t i t i o n e r

a n s w e r e d n e g a t i v e l y. The c ourt asked a g ain if any defe ndant had any questions about anything that h a d b e e n t o l d t h e mo r

a s k e d o f t h e m

. T h e p e t i t i o n e r

a n s w e r e d n e g a t i v e l y. The pe titioner answer ed the c ourt that she was satisfied with he r lawy er and had no complaint in any

way about how he ha d repr esente d her.

I n J oseph L ance Risner, we f ound the trial court’s err or i n this reg ard to be harmless be y ond

a re asonable doubt due in part to the fa ct t hat the re cord de monstrated the de fendant as being “literate, educ ated, a

rticulate, a nd intelligent.” 2003 WL 21492929, at *9. Furthermore , we f ound that

[d] uring all s t age s o f t hese pr ocee dings, [Risner] was repr esente d by competent counsel who w ere experience d in capital def ense. [Risner’s] attorney s both testified that th e y beli e ve d [Ris ne r] kne w the c on se qu e nc e s o f h is p le a wh e n h e e nte re d it

. Trial counse l discussed with [R isner] his rig hts and the plea dialog ue. F urthermor e, [Risn e r] s ig ne d a

me mor a nd um s ta tin g that he wa s a wa re of his c on sti tut ion a l r ig hts

. There fore , we hold that his pleas of g uilty wer e voluntarily and intellige ntly enter ed

. . . .-37-

I d. I n J ason Blake Bry ant, we also found the err or harmless. I n that case , we no t ed t h at t h e t ri al court ha d an “importa nt exchang e” unique to Bry ant about h is low-level ability to rea d and write,

a nd his le ve l of un de rs ta nd ing abo ut the g uil ty ple a a ft e r his la wy e r re a d to him the Wai ve r of Rig hts and Plea of

Guilty document. 2004 WL

443414, at *12. Ba sed on this unique ex chang e, tog ether with the fac t that Bry ant’s lawy er was qualified to ha ndle death penalty case s, this C ourt found that Bry ant “unde rstood the g uiltyplea.” I d. at *13.

T h e D ef en d an td o es n o t h av e R i s n er ’s i n t el l i gen ce o r l ev el o f e d u ca t i o n

. S h e d i d n o ts i gn a spec ial memorandum setting forth the r amifications of her plea . She was not re prese nted by counsel qua lified to handle de ath penalty case s. She was not avoiding the death penalty by pleading g uilty . She did not have a spe cial exchang e with the trial court. Ne verthe less, on the re cord be fore
us, we c onclude that the D efe ndant enter ed her g uiltypleas volunt arily and knowingly and that the tr ia l c ou rt ’s e rr or

in c on du c tin g the ma ss al loc uti on wa s harmle ss be y on d a re a so na ble do ub t a s to the De fe nd a nt. Th e De fe nd a nt h a d e xten siv e dis c us sio ns wi th C ou ns e l ab ou t he r p le a prior to entering it; she ne ver g ave him any rea son to suspect that she di d not understand what he was te lling her; he rea d to her the Waiver of Rig hts and Plea of Guilty document ver

batim; she was able to rea d and write without difficulty and signe d this doc ument; he r testimony at both the sentenc ing he aring and th e p o s t- c o n v ic ti o n h e ar in g d e mo n s tr a te s th a t s h e is a n ar ti c u late w o man c ap able of understanding the basic leg al issues involved; she determined to ple ad g uilty even ag ainst the wishes

o f he r fa m i l y ; an d s h e n ev erra i s ed an i s s u e a b o u th ergu i l t y p l eau n t i l af

t erh ers en t en ci n g h ea ri n g. I n short, the re cord de monstrates that the De fendant entere d her g uilty plea with the requisite deg ree of under standing . Acc ording ly
, we hold that the Def endant’ s g uiltyplea is constitutionally valid and that she is not entitled to post-conviction relief on this g round.

CO NC LU SION The De fenda nt is not entit led to post-conviction re lief on the b as i s t h at she re ceive d ineffe ctive assistanc e of c ounsel. The tria l court did not abuse its discr etion in refusing to admit the Def endant’ s proffe red e x pert testimony of W. Thomas Dillard at the post-c onviction hearing. T he Def endant’ s g uiltyplea is constitutionally valid. Acc ording ly
, we aff irm the judgme nt of

the trial court de ny ing the Def

endant’ s claims for r elief.

___________________________________ DAVID H. WELLES, J UDGE