Charles Rice v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 10, 2012 Session

CHARLES RICE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County
No. 0100035 Chris Craft, Judge

No. W2011-01069-CCA-R3-PD - Filed March 27, 2013

The Petitioner, Charles Rice, appeals from the judgment of the Shelby County
Criminal Court denying his petition for post-conviction relief. A Shelby County jury
convicted the Petitioner of premeditated first degree murder and felony murder and imposed
a sentence of death. The Tennessee Supreme Court affirmed the Petitioner’s convictions and
sentence on direct appeal. See State v. Rice, 184 S.W.3d 646 (Tenn. 2006). On appeal, the
Petitioner challenges the effectiveness of his counsel’s representation in both the guilt and
penalty phases of the trial. We hold that the post-conviction court properly found that the
Petitioner received effective assistance of counsel at trial. The judgment of the post-
conviction court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed

C AMILLE R. M CM ULLEN J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Donald E. Dawson, Paul Johnston Morrow, and Kertyssa Smalls, Nashville, Tennessee, for
the Petitioner-Appellant, Charles Rice.

Robert E. Cooper, Jr., Attorney General & Reporter; James E. Gaylord, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and John W. Campbell, Deputy District
Attorney General, for the Appellee, State of Tennessee.

OPINION

A Shelby County jury convicted the Petitioner, Charles Rice, of first degree
premeditated murder and felony murder of his thirteen-year-old step-daughter during the
perpetration of a rape. Following a sentencing hearing, the jury found the following
aggravating circumstances: (1) the Petitioner had previously been convicted of a violent
felony; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder was
committed during the perpetration of a rape. See T.C.A. § 39-13-204(i)(2), (5), (7) (1997).
The jury also found that evidence of these aggravating circumstances outweighed evidence
of the mitigating circumstances beyond a reasonable doubt and imposed a sentence of death.
On direct appeal, the Tennessee Supreme Court held the jury improperly relied upon the prior
violent felony aggravating circumstance in section 39-13-204(i)(2) but otherwise affirmed
the Petitioner’s convictions and sentence. See State v. Rice, 184 S.W.3d 646 (Tenn. 2006).

The Petitioner filed a pro se petition for post-conviction relief. The post-conviction
court appointed counsel, who filed an amended petition. Following an evidentiary hearing,
the post-conviction court entered an order denying relief. The Petitioner filed a timely notice
of appeal.

TRIAL PROCEEDINGS

The Tennessee Supreme Court summarized the evidence presented at trial as follows:

The victim . . . was reported missing on June 18, 2000, and her body
was discovered on June 25, 2000. After a police investigation, the [petitioner],
Charles Rice, was questioned and arrested for her murder. . . .

The State’s proof at trial established that on June 18, 2000, the victim
was staying with her father, Steven Dwayne Branch (“Branch”). Branch lived
in Memphis with his girlfriend and her three children. The victim usually lived
with Branch’s sister, Margaret Branch, but she was staying with her father
because it was Father’s Day.

The victim’s mother, Tracie Anderson (“Anderson”), was married to the
[petitioner] during the time relevant to this case, but the victim never lived
with her mother and the [petitioner] while they were married. Anderson and
the [petitioner] had argued on June 6, 2000, prompting Anderson to leave the
[petitioner] and move in with her brother. She had left the [petitioner] on
numerous other occasions, but had always returned. Prior to her leaving, the
[petitioner] told her that if she left him, “it will hurt you more than it hurts
me.” Anderson told Branch not to let the victim go to the [petitioner]’s house
anymore. According to Anderson, the [petitioner] used drugs, specifically
crack cocaine.

On the morning of the 18th, the victim left her father’s house at about

-2-
11:00 a.m. with three other girls. She was wearing “a white short-pants overall
set with a navy blue shirt, some white socks, her blue and white tennies, and
she had a necklace around her neck.” Monica Downey (“Downey”), one of the
daughters of Branch’s girlfriend, was with the victim that day. She testified
that she, the victim, and five other girls “walked around because that’s our
normal routine every day.” While out walking, the [petitioner] came by and
talked to the victim. Downey said that she could not hear what was said.

After the [petitioner] left, the girls went to a store and then to the
[petitioner]’s house on Firestone Street. The victim went inside the house
while Downey and the other girls waited outside. The victim later came
outside and told Downey that they all had to leave; they left the victim on the
[petitioner]’s front porch and went to a park. According to Downey, this was
about 4:00 or 5:00 in the afternoon. Downey said that it was not unusual for
the victim to go to the [petitioner]’s house when the victim’s mother lived
there. Downey did not know that the victim’s mother no longer lived there.
She said that she never saw the [petitioner] while they were at his house.

According to Willie Lee Hall (“Hall”), the [petitioner]’s stepfather who
lived with the [petitioner] at 1272 Firestone Street, the victim came by the
residence on the 18th of June, asking to walk the dog. After Hall refused, the
victim went outside to talk to the girls with whom she had been. Then the
victim left the house with the [petitioner], walking down the street toward
Bellevue Street. According to Hall, this was about 3:40 in the afternoon.
Later that afternoon, the [petitioner] returned to the house to watch television;
he did not change his clothes. Hall said that while at the house, before leaving
with the [petitioner], the victim was never out of his sight.

Marquette Houston (“Houston”), a friend of the victim from the
neighborhood, saw the victim on the afternoon of June 18, sitting on her
father’s front porch listening to music. He recalled that she was listening to
a Vanilla Ice CD. He told her that “nobody . . . listens to Vanilla Ice [any]
more.” Houston noticed that the CD had a scratch on it.

Tony Evans (“Evans”), a friend of the victim’s mother and father, also
saw the victim on the day of her disappearance. He lived on Firestone Street,
and on the afternoon of June 18, around 2:00 or 3:00 p.m., he saw the victim
and a “lot of little girls” walk to the [petitioner]’s house. Later that day, he
observed the victim and the [petitioner] walking away from the [petitioner]’s
house heading west on Firestone. He found it surprising that the two were

-3-
together because he knew that the victim’s mother had recently left the
[petitioner] due to abuse. Therefore, he followed the victim and the
[petitioner]. After turning off Firestone Street, the two went up a small street
then headed back on Empire Street, and then south on Bellevue toward an
Amoco station. Then they walked past the station through the pathway on the
side. At that time, Evans returned home to finish his yard work. Evans
explained that he stopped following the two when they got to the path by the
Amoco station because the path leads to Brown Street, where some of the
[petitioner]’s relatives lived. He assumed that the victim’s mother and the
[petitioner] had gotten back together and that the [petitioner] and victim were
going to visit relatives.

The victim’s father began to worry when the victim had not returned
home by 5:00 p.m. on June 18. He called the police that night to report her
missing. The police told him that she would probably be back and that they
would report her as a runaway. Branch testified that the victim had never run
away before, so that night he began to search the neighborhood for her. A few
of his neighbors helped in his search.

The following day, Anderson called Evans and asked him if he had seen
the victim. Evans told her that he had seen the victim and the [petitioner] go
down the path next to the Amoco station. After speaking with the victim’s
mother, Evans went to the area of the path to look for the victim, but did not
find anything. He explained that he wanted to find the victim because both
parents were his good friends. Several days later, Branch also spoke with
Evans, telling him that the victim had been missing since June 18.

Evans testified that two days after the victim was last seen, he saw
Mario Rice (“Mario”), who is the [petitioner]’s nephew, and the [petitioner]
walk together down to the woods by the Amoco station. He said that the
police were called, but they did not get there in time because it was night.
During the week the victim was missing, Evans saw the [petitioner] and Mario
sitting in the yard of a house on Alaska Street, watching that same pathway.
This made him even more suspicious of the [petitioner]. For two to three
nights in a row, Evans hid in the crawl space underneath the house on Alaska
Street where Mario and the [petitioner] were. While there, he overheard Mario
and the [petitioner] discuss plans to kill Anderson. He never heard them talk
about the victim. He remained under the house on those nights until 4:00 or
5:00 in the morning.

-4-
 On June 25, Evans had repaired his four-wheeler and drove back to the
area surrounding the pathway to search again. When he went into the woods,
he smelled an odor like something had died, so he began looking in the
direction from which the smell was coming. He had to chop through the
bushes with a machete. Finally, he “stepped up on the tree and looked down,
[and] saw her shoes.” Evans ran from the woods to Branch’s house and told
him that he had found the victim’s body behind the Amoco station on Chelsea
Street.

Branch, Evans, and Houston went in Branch’s truck to the parking lot
of the Amoco station. From there, Evans led them down a trail behind the
station. On the path, Houston noticed a Vanilla Ice CD on the ground that had
the same scratch on it that he had seen on the CD of the victim, and it looked
like it was “cracked or something.” They reached the victim’s body, which
was lying in a ditch in a heavily wooded area. When they found the victim, her
shorts and underwear were down around her ankles. Branch testified that he
could not recognize his daughter’s facial features because the body had
decomposed, but he recognized her clothing, shoes, and necklace as the same
as she had been wearing on the day she disappeared. Evans was also able to
recognize the victim by her hair and clothes. After identifying the body as that
of the victim, they called the police.

Sergeant Robin Hulley of the Memphis Police Department was called
to the Amoco station on Chelsea Street at approximately 5:00 p.m. on June 25,
2000, on a “DOA unknown.” Once she arrived at that address, she was led by
a uniformed officer to the actual scene behind the store. Sergeant Hulley
testified that to the right side of the store there is a pathway that opens onto a
big grassy field, about the size of a football field. The victim’s body was
located in what appeared to be a dry creek bed in a heavily wooded area to the
right of the opening. The victim was lying face up. She had on a pair of white
short overalls, which were pulled completely down to around her ankles, and
her underwear was also pulled down. Her shirt was still in place. Sergeant
Hulley stated that the body was not visible from the path or the grassy field,
although it was not covered by any brush. The only blood found at the scene
was directly around the body. While walking down the path, Sergeant Hulley
noticed a broken Vanilla Ice CD, which he thought strange due to the fact that
there was no other debris on the path.

Sergeant James L. Fitzpatrick of the Memphis Police Department was
in charge of the crime scene on June 25, 2000. He testified that the victim’s

-5-
body was found in an old ditch, in advanced stages of decomposition. There
was no upper torso, the legs and arms were still intact, and the head appeared
to be “mummified.” The victim had on short pants, which were down around
below her knees.

Michael Jeffrey Clark, an officer with the Memphis Police Department,
was also assigned to investigate the murder on June 25, 2000. At the scene,
Officer Clark spoke briefly with Evans and Houston. He later spoke with them
in depth at the homicide office, where he also interviewed Branch, Anderson,
and Mario. Officer Clark then went to the [petitioner]’s home and spoke with
the [petitioner]’s stepfather, Hall, and the [petitioner]’s mother, Delores Hall.
According to Hall’s testimony, the [petitioner] told the police that on the day
of her disappearance, he and the victim parted ways at the intersection of
Bellevue and Firestone.

The [petitioner] was subsequently brought to the police station, where
Officer Clark and Officer Ernestine Davison interviewed him at approximately
2:00 a.m. on the morning of June 26. Officer Clark read the [petitioner] his
Miranda rights, and the [petitioner] signed a form indicating that he understood
those rights. Clark told the [petitioner] that other witnesses had seen him enter
the woods with the victim near the Amoco station. The [petitioner] denied
going into the woods with her and denied any knowledge of her disappearance.

Clark then told the [petitioner] that it appeared to him that the victim
had been raped, and he asked the [petitioner] if he would be willing to submit
to a DNA test so that police could compare his DNA with the DNA found on
the victim. At that point, the [petitioner] admitted that he had engaged in
consensual sex with the victim inside the kitchen of his parents’ house on June
18, explaining: “I had sex for about a minute with her.” The [petitioner]
admitted the victim asked him for money and to walk his dog. He said that he
asked her to walk to the store with him so he could get some change, but when
they arrived at the store, he told the victim that he did not have any money, and
they parted ways.

The [petitioner] then changed his story again, stating that he and the
victim went to his house after the victim asked him for money, and this led to
the sexual act in the kitchen. The [petitioner] said that the victim then left the
house alone and that he did not see her again. When Officer Clark confronted
the [petitioner] with Hall’s story that he saw the [petitioner] leave the house
with the victim, the [petitioner] replied that he entered the woods with the

-6-
victim, but denied any wrongdoing.

Officers Clark and Davison decided to arrest the [petitioner] and to
place him in the Shelby County jail. While checking him in, the [petitioner]
asked to be placed in protective custody because he had received some threats
from family members in the neighborhood. Officer Clark asked the
[petitioner]: “Do you mean the family members of the girl you killed?” The
[petitioner] responded: “Yes, sir.” On cross-examination, however, the
officers testified that the [petitioner] constantly maintained that he did not kill
the victim.

Sergeant Fitzpatrick read the [petitioner]’s statement to the jury. In his
statement, the [petitioner] said that the last time he saw the victim was between
4:30 and 5:30 p.m. on June 18, 2000, behind the Amoco station. When asked
how he and the victim came to be behind the Amoco station, the [petitioner]
replied, “Me and [the victim] walked down through there on the way to the
field. And that’s when my nephew [Mario] killed [the victim].” The
[petitioner] explained that he and Mario planned to have the victim at that
location so that Mario could kill the victim. He said that Mario wanted to kill
the victim because Mario “was tired of seeing [the petitioner] go through
things [he] was going through with [the victim’s] mother.” The initial plan
was to have Anderson, the victim’s mother, accompany the [petitioner] to the
field where Mario would kill her, but they could not find Anderson.

The [petitioner] stated that he first encountered the victim on the day of
her death as she was walking between Bellevue and Smith Street with her
friends. The victim wanted to walk his dog and wanted ten dollars, so the
[petitioner] told her to meet him at his stepfather’s house on Firestone Street.
He said that while they were at the house, they had sex in the kitchen, and “it
lasted about sixty seconds.” He said that the victim “brushed her chest against
[him] and said she knowed [sic] that her stuff was gooder [sic] than her
mother’s.” He said that this was the first time they had sex and that he did not
reach climax. After the sexual encounter with the victim, they left the house
and went to the Amoco station on Chelsea Street under his guise that he would
get change and give the victim the ten dollars that she requested. The
[petitioner] then told her that he did not have the money. At that time, the
victim followed him into woods, where they were met by Mario. The
[petitioner] then said:

And that’s when we said, “F**k this b***h; let’s kill this

-7-
 b***h.” I told [the victim] about an apple tree and a fenced-in
area, so she went in there, and that’s when my nephew started to
stab her. He stabbed her in the head first and in the throat
numerous times and in the chest area numerous times. That’s
when I ran, and my nephew, Mario Rice, ran behind me. We got
out to the street on Brown, and I ran towards Lewis or
Louisville. I don’t know which one. And Mario went the other
way on Brown. I went up Louisville or Lewis to a friend’s
house on Montgomery. Then I went to another friend’s house
on Ayers, and that’s where Mario and I met up again. We
started drinking, and we stayed together until about 10:00 p.m.
And then he went home and I went home.

The [petitioner] said that Mario used a “kitchen knife, not a butcher
knife.” He then provided more details about the actual murder, saying:

She was facing him, and he was facing her, and there were a lot
of words. He was talking to her. I really don’t know exactly
what he was saying. Then he pulled the knife from out of his
left back pocket, and then he stabbed her in the head. She went
down on one or two knees, and that’s when he stabbed her in the
throat a bunch of times, and she fell back on her back. She was
moving her hands like she was trying to tell Mario to stop. She
pulled - and she had pulled her clothes down before the first
stabbing, and I guess she thought she was getting ready to be
raped by what Mario was saying because it made me wonder
why was she taking her clothes down. As I think about it, I
think she must of fell back because of the way Mario was
stabbing her in the neck and chest.

The [petitioner] said that the plan was to lure the victim’s mother to the field
and to “take care” of her. He said that he “was going to take care of the
mother, and Mario was going to take care of anybody else.” He continued, “I
was probably going to jump on the mother. That probably wasn’t all I would
have done to her.” About the victim’s death, the [petitioner] stated that he felt
“sad, guilty, and responsible” because he “could have prevented it by not
luring her into that field.”

Sergeant Fitzpatrick took the [petitioner] back to the crime scene on
June 27 for a “walk through” video of the events leading to the victim’s death.

-8-
The [petitioner] said he got the victim to accompany him to a secluded part of
the field by telling her there was an apple tree back there. The [petitioner] then
led the officers directly to the spot where the body had been discovered. On
cross-examination, Sergeant Fitzpatrick admitted that in every statement given
by the [petitioner], the [petitioner] denied actually killing the victim.

Two or three days after the police first went to Hall’s house, they
returned and asked to search the house. Hall granted permission. The police
took a knife that was on the dining room table. Hall testified that the knife had
been lying there for the “longest time.”

Dr. Cynthia Gardner, a medical examiner with the Shelby County
medical examiner’s office, testified that she first examined the victim’s body
at the crime scene. She said that the body was found “lying on her back in a
field” with her shorts pulled down around her ankles. The body was in a state
of advanced decomposition, and “in many areas . . . the soft tissues were
completely gone and only the skeleton remained.” She next performed an
external examination of the body with the clothing intact. She noted that
decomposition was occurring at different rates in different areas of the body.
She explained that “differential decomposition is associated with areas of
injuries.”

If there’s a breach in the skin surface somewhere or even if there
is a large bruise, which is just a collection of blood, both of
those factors are very attractive to the infection bacteria that
promote decomposition. So when you see a body where there
were areas of decomposition which has [sic] occurred at a faster
rate, it’s more advanced decomposition in a very specific area.
That indicates that there was probably injury in that area.

Dr. Garner noted advanced decomposition in the “head, the neck, the
chest, the upper back, and in the groin area.” She opined that because of the
advanced state of decomposition in the vaginal area, there had been some sort
of trauma or injury to that area prior to death. The victim had what appeared
to be stab wounds in the right lower quadrant of her torso and on the left wrist.
Dr. Garner stated that the wounds to the wrist were defensive injuries. All the
wounds were consistent with those inflicted by a kitchen knife.

Examination of the victim’s shirt revealed multiple tears that were
consistent with those produced by a knife. Ten total defects were found in the

-9-
shirt: one in the right lower quadrant; four in the anterior left chest; one in the
right chest; three in the arm; and one in the back. Dr. Garner observed injury
to the victim’s neck, indicating that a sharp instrument went all the way
through the soft tissue from the skin down to the bone in the back. She
explained that the windpipe and esophagus are located directly in this region
of the neck and would “most definitely have been severed.” There was
another point of sharp trauma to the back of the skull where there was a
puncture wound, but it did not penetrate through the skull. From her
examination, Dr. Garner determined that there were ten stab wounds on the
shirt, three to the neck, one to the back of the head, and two to the left wrist,
for a total of sixteen stab wounds. She concluded that the cause of death was
multiple stab wounds.

Due to the extent of decomposition, Dr. Garner was unable to obtain
DNA from the victim’s body for testing. The victim’s body was identified as
that of [the victim] through comparison of dental records.

Dr. Steven Symes, a forensic anthropologist with the Shelby County
medical examiner’s office, also testified as to the condition of the victim’s
body. He examined the bones of the victim’s upper body and found four
instances of “sharp trauma to bone,” three of which were in the neck and one
in the back of the skull. The wounds in the neck were inflicted from front to
back, penetrated through her neck, and impacted her spinal cord. The knife
used had been a single-edged blade, like those of some kitchen knives.

In his defense, the [petitioner] called several witnesses who provided
alibis for both himself and Mario, in direct contradiction to the [petitioner]’s
statement to police that he had lured the victim to the field where Mario
proceeded to murder the victim.

Providing an alibi for Mario were Lee Bearden (“Bearden”), R.L.
Branch, Donnie Tate (“Tate”), and Larry Rice. According to Bearden, R.L.
Branch and Tate, the three men, plus Mario, were watching football and
playing dominoes at Bearden’s house from 1:00 p.m. until about 3:00 p.m. on
June 18, 2000. Mario then left with R.L. Branch and Tate and went to the
Save-A-Lot grocery store where they met Larry Rice and Carolyn Rice at
about 4:00 p.m. Then they went to Tate’s house for dinner. Around 8:00 p.m,
R.L. Branch took Mario to meet a girlfriend. R.L. Branch also testified that
Mario and the victim were cousins and that they were close.

-10-
 Roy Herron provided an alibi for the [petitioner]. He testified that at
5:00 p.m. on June 18, 2000, the [petitioner] came to his house, where they
watched the U.S. Open golf tournament until its conclusion at about 7:00 p.m.
Mr. Herron said that the [petitioner] did not have any blood on his clothes or
shoes, and he did not have a weapon on him. Julie Scobey, an employee of
WMC-TV in Memphis, confirmed that on June 18, 2000, the U.S. Open golf
tournament was broadcast on their station from 12:30 p.m. until 6:59 p.m.

Although he did not testify in his own defense, the [petitioner] sought
to discredit the testimony of Evans. To contradict Evans’ testimony that he
had hid in the crawlspace under the house in which the [petitioner] was
visiting, the defense called Michael Patton (“Patton”). Patton testified that in
June of 2000, he stayed at 1039 Alaska Street at least once a week, but usually
two to three times a week. He testified about the hole that was located behind
the house that led to the crawl space. He said that nothing was kept under
there except for a ladder. The entrance to the crawl space was located at the
back of the house, under the children’s bedrooms. According to him, there
were dogs in neighboring yards that would bark if anyone was in the backyard.
He said that a person inside the house would be able to hear if someone was
hiding in the crawl space. Patton was not at that house on either June 23 or 24.

Evans was convicted on October 3, 2001, of possession with intent to
sell fifteen grams of crack cocaine and 2.7 grams of powdered cocaine. This
was after the arrest of the [petitioner], but before the [petitioner]’s trial. Evans
received a six-year sentence. Rosyln Johnson is a presentence investigator for
Correctional Alternatives, Inc. She prepared Evans’ presentence report when
he was convicted. That report indicated that Evans said that he had been
diagnosed as being paranoid schizophrenic. He listed his next psychiatric
appointment and provided her with medicine bottles. On cross-examination,
Evans denied that he had been diagnosed with paranoid schizophrenia and
denied that he took medication for any mental illness. When he was shown
records that he had given his corrections officer indicating that he was in fact
on medication, he denied that the statements in those reports were true.

Finally, Dr. Joseph Angelillo, a clinical psychologist, testified that he
had met with the [petitioner] five times and performed a series of tests. The
[petitioner] had a full-scale IQ of seventy-nine, placing him in the eighth
percentile.

Stephanie Fitch also testified for the defense. She had given a

-11-
statement to the police on July 16, 2001, in which she said she saw the victim
at the store around 5:00 p.m. with other girls and later saw her walking alone
on the railroad tracks. She testified at trial that this prior statement was not
true. She also denied signing the statement. She testified at trial that she last
saw the victim on the morning of the 18th at the store with a bunch of girls.

After deliberation, the jury convicted the [petitioner] of first degree
premeditated murder and of first degree felony murder; these convictions were
subsequently merged.

....

During the sentencing phase of the trial, the State put on the following
proof. First, Bob Fleming, a criminal court clerk, testified that the [petitioner]
pled guilty to aggravated assault on January 2, 1991.

Steven Branch testified that the victim was thirteen years old when she
disappeared. She had been living with his sister, but staying with him for the
summer. She wanted to be a model when she grew up, and he was saving
money to send her to modeling school. He enjoyed spending time with her,
and since her death, he felt “real bad.” He often spends nights sitting in his
living room looking at her picture.

The [petitioner] called Gloria Shettles, a mitigation investigator, to
testify about the [petitioner]’s past. One of the [petitioner]’s sisters died from
lupus; another sister died from colon cancer. A brother died in a drowning
accident, and his father died from cancer.

The [petitioner] attended school in Memphis. He was held back in the
third grade. In the fifth grade, he was only reading at a third-grade level and
failed spelling. His conduct in the sixth grade was listed as unsatisfactory, and
he was reading below a third-grade level. In seventh grade, he received all Fs
except for a D in music. He received no grades in the eighth grade due to
nonattendance, at which time he dropped out of school.

When the [petitioner] was sixteen years old, he was a witness to a crime
in his neighborhood and testified for the State. The transcript from that trial
revealed that he had witnessed a robbery and murder at a neighborhood
grocery store. The [petitioner] later identified the perpetrators of the crime in
a police line-up.

-12-
 The [petitioner] was thirty-five years old at the time of the victim’s
death. Joyce Rice, the [petitioner]’s sister, testified that the [petitioner] was the
youngest of six children, only three of whom are still alive. She confirmed that
the [petitioner] had witnessed a crime and believed that he saw the men being
killed. She explained that one of their brothers was murdered over gambling
by being hit in the back of the head and thrown into a swimming pool. She
cared about the [petitioner], but conceded that he had been using “crack”
cocaine for about two years, and as a result, his life was going downhill.

Dr. Joseph Angelillo met with the [petitioner] several times and
conducted various intellectual and personality tests. He also reviewed the
[petitioner]’s school records and social history. The [petitioner] had a
“significant amount of loss in his life.” The fact that he was a witness to
murder was also a significant event. Other significant factors included his
inability to retain a job for any length of time, his use of “crack” cocaine,
marijuana and alcohol, his experimentation with LSD, and his past suicide
attempt. Dr. Angelillo explained that drug use remains an important factor
because of “one’s erratic behavior, moods, unpredictability, change in
personality, change in impulse control, and things like that with the repeated
use of that particular substance.”

Intellectual tests showed that the [petitioner]’s intellect “was in the
upper end of what is termed the borderline range. That was the full scale IQ
. . . 79.” Dr. Angelillo opined that the [petitioner] suffers from a delusional and
paranoid disorder, but that these are factored with his history of drug and
alcohol abuse. He has a “dependant personality . . . as well as passive -
aggressive . . . personality traits.” The delusional disorder “would impair [his]
ability to construe, to manage to make sense out of day-to-day situations.”

Dr. Angelillo admitted that during testing, he found the [petitioner] to
be “very angry . . . somewhat sullen, mistrustful, and generally self-indulgent.”
A computer generated test indicated that the [petitioner] has a disregard for
authoritative figures, tends to deny responsibility, and blames others for his
problems.

Corporal Barbara Williams, an employee of the Shelby County Sheriff’s
Department, testified that there were no incidents of violence reported
involving the [petitioner] since he had been confined at the Shelby County Jail.
The [petitioner] did attempt suicide, however, on July 5, 2000.

-13-
Rice, 184 S.W.3d at 653-61.

POST-CONVICTION PROCEEDINGS

Lead Counsel testified that he graduated from law school in 1996 and that
approximately 95% to 99% of his practice was devoted to criminal defense. The Petitioner’s
case was his fourth or fifth capital case.

An order appointing Lead Counsel was filed on July 27, 2001, which was entered
nunc pro tunc on July 20, 2001. Lead Counsel said that prior to his appointment, the trial
judge met with him in chambers and stated he would appoint Lead Counsel only if he would
be ready to try the case on the scheduled date. The trial was scheduled for January 2002.
Lead Counsel believed that the trial may have originally been scheduled for an earlier date
and that the January 2002 date was the second setting. He said that at the time, a large
amount of work still needed to be completed in the case.

Lead Counsel testified that in prior cases, the trial judge had provided him with the
tools necessary to prepare the defenses. He knew Mr. Skahan received more resistance from
the trial judge in obtaining funding for experts than he was accustomed to seeing in capital
cases. He also knew obtaining funding would be a challenge in the Petitioner’s case based
upon his conversations with Mr. Skahan. Lead Counsel said,

Before I sought experts I really had my documentation super loaded.
I had probably ten or twelve times the amount of supporting documentation for
every resource I was seeking and then I had absolutely no trouble. Now I
don’t know if it was because I had a lot of documentation, because I wasn’t
Gerald Skahan or because we’re nearing trial, I don’t know. But I spent a lot
of time and effort and energy getting loaded to bear to ask for resources and
then [the trial judge] said okay, no problem, here it is.

Lead Counsel did not know when he began requesting funding from the trial judge. Upon
being appointed to the case, he read the file and determined what tasks needed to be
completed.

Lead Counsel said that in obtaining funding, he sought assistance from the Tennessee
Board of Professional Responsibility (“BPR”) and many capital defense attorneys. He
identified a letter dated October 29, 2001, that he wrote to Lance Bracy, the then chief
disciplinary counsel for the BPR, in which he stated that “[t]he judge is adamant that the case
should be tried on January 7th of 2002, and would not appoint me until I agreed that I could
be ready. Now the Court is making me jump through hoops to obtain basic tools to defend

-14-
the client.” Mr. Bracy responded with a letter stating that Lead Counsel could ethically seek
to withdraw if the State did not provide the basic constitutionally mandated tools to defend
the Petitioner. Mr. Bracy said it was not his place to identify those tools. Lead Counsel wrote
letters on October 29, 2001, to defense attorneys and others explaining his case, his concern
of the Petitioner’s mental health issues, and his reasons for needing a mental health expert.
He requested each person provide him with an affidavit to support the necessity for the
funding. Lead Counsel acknowledged that at the time that he wrote the letters, the trial was
slightly more than sixty days away.

Lead Counsel said that on October 29, 2001, he did not believe the mitigation
investigation was in “good shape.” He recalled a conversation with an employee of Inquisitor
about the fact that they had stopped working on the case due to lack of funding. He said the
decision regarding whether to request a continuance at that point depended upon what tasks
needed to be completed. Lead Counsel identified a letter that he had written to Ron Lax, the
fact investigator; Glori Shettles, the mitigation investigator; and Co-Counsel with regard to
the need to seek additional funding. The letter stated, “I don’t think we want language that
implied Inquisitor was off the job on this case ever for any reasons. I know how important
these issues are but we have got to play the game as far as documentation goes.” Lead
Counsel testified that although he was not “super happy to be seeking twelve affidavits” to
support funding requests that were routinely granted, the letter indicated that he wanted the
investigators and Co-Counsel to “quit griping about it” and “just do it.”

Lead Counsel testified the investigation would not have been completed sixty days
prior to trial. He also needed additional funding for the investigators to assist in coordinating
the witnesses who were to testify at trial. In order to obtain additional funding for Inquisitor,
Lead Counsel and Mr. Lax met with the trial judge in chambers. The trial judge wanted to
ensure that the investigation could be complete by the trial date in January if he approved the
request for funding from Inquisitor.

Lead Counsel said that on October 29, 2001, he was gathering information in order
to draft a motion and obtain funds to retain a mental health expert. According to his notes
from October 16th, he was considering a psychologist, a psychiatrist, and a
neuropsychologist. Lead Counsel explained the notes were the result of “brainstorming.” An
order was entered on November 5th approving funds to retain Dr. Joseph Angelillo, a
psychologist. Ms. Shettles provided various records to Dr. Angelillo. Dr. Angelillo submitted
his report to Lead Counsel on December 16th. Lead Counsel did not consider receiving a
psychologist report two to three weeks before trial a good practice. He did not know why he
did not request funds to retain a mental health expert in August 2001. He believed he may
have still been reviewing the case file and determining what tasks needed to be completed.
Lead Counsel acknowledged that in the beginning of August 2001, he attended a death

-15-
penalty college in California during which he was required to submit a case for review. He
submitted the Petitioner’s case and stated he intended to have an extensive psychological
evaluation conducted.

Lead Counsel testified he would have liked to have had other mental health
professionals evaluate the Petitioner also. At that point in his career, he did not believe he
had ever used a neuropsychologist. Lead Counsel did not feel he could have pursued
additional evaluations due to the lack of time before trial. He said he spent quite a bit of time
preparing his motions for funds to retain an expert that in retrospect, he did not believe was
necessary. He believed such preparation was necessary at the time, however, due to the
issues that Mr. Skahan faced in requesting funds from the trial judge.

Lead Counsel noted Dr. Angelillo did not recommend additional evaluations by other
experts in his report. He did not ask Dr. Angelillo whether he should seek to retain a doctor
of addiction medicine. Lead Counsel acknowledged that an evaluation of the Petitioner by
a neuropsychologist would have been more thorough than an evaluation by a psychologist.

Lead Counsel said he performed the majority of the work in preparing the case for
trial. He and Co-Counsel did not divide the preparation of the guilt and penalty phases.
Rather, when Lead Counsel needed Co-Counsel’s assistance, he would contact Co-Counsel
and then follow up with a telephone call to ensure that the task had been completed. Lead
Counsel recalled that Co-Counsel attended two meetings with the entire defense team and
that he also met with Co-Counsel separately on other occasions.

Lead Counsel stated he visited the crime scene on at least two occasions with the
investigators. The Petitioner’s family members gave him access to the house under which
Tony Evans alleged he crawled. Lead Counsel visited the house at least once or twice. He
believed Tony Evans lied when he testified that he crawled under the house and heard a
conversation between the Petitioner and the Co-Defendant.

Lead Counsel noted the Petitioner gave a statement to police and participated in a
videotaped walkthrough of the scene with officers. He described the statement and video as
compelling evidence that the Petitioner was involved in the victim’s death. He said their
theory of defense was that the Petitioner’s statement was false, that the co-defendant had an
alibi, and that Mr. Evans was not someone who should be trusted. Lead Counsel testified that
the defense theory as to why the Petitioner’s statement was false was that he was easily led
by police because he suffered from severe mental health deficits. Lead Counsel
acknowledged that favorable testimony from an expert in the area of false confessions would
have been helpful. He did not seek funds for this type of expert.

-16-
 Lead Counsel believed the victim’s body was too decomposed for a finding as to
whether the victim had been raped. He did not retain an independent forensic pathologist
to contradict Dr. Gardner’s testimony regarding the injury to the victim’s vaginal area. He
did not know whether a forensic pathologist would have testified that Dr. Gardner’s finding
would have been impossible based upon the condition of the victim’s body. He did not recall
whether he spoke to Dr. O.C. Smith regarding the case although it was on his list of tasks that
he needed to complete.

Lead Counsel said that in a capital case, the mitigation investigator generally should
interview all of the petitioner’s family members. If the mitigation investigator does not have
sufficient time to complete the interviews, counsel should request a continuance. Lead
Counsel believed everyone who was willing to cooperate had been interviewed. He recalled
that many of the Petitioner’s family members were angry with the Petitioner because they
believed co-defendant Mario Rice, the Petitioner’s nephew, would not have been charged had
the Petitioner not implicated him. While they were able to contact quite a few family
members, the relatives were not willing to testify at trial. Lead Counsel could not recall who
agreed to cooperate and who refused but said the Petitioner had little family support at trial.

Lead Counsel testified he initially planned to present evidence during the penalty
phase of the Petitioner’s social history through Glori Shettles. The State objected to Ms.
Shettles’s testimony as hearsay, and the trial court limited her testimony. Lead Counsel said
that regardless of the trial court’s ruling, he still presented the evidence through Ms. Shettles.
The trial court also allowed trial counsel to continue the presentation of their proof until
Monday so that they may present the testimony of other family members. Upon returning that
Monday, the defense did not present any additional witnesses and rested its case. Lead
Counsel said he believed that if any additional witnesses were willing to testify, they would
not have rested. He understood the Petitioner’s family members were reluctant to testify.

Lead Counsel did not believe the Petitioner’s competency was at issue. He believed
the trial court ordered Midtown Mental Health Center to conduct a competency evaluation
of the Petitioner as a precaution. Dr. Lynn Zager, who conducted the competency evaluation,
wrote Lead Counsel a letter requesting additional information and informing him that the
information and her findings would not be considered confidential.

Lead Counsel acknowledged that defense counsel in a capital case should argue to the
jury that the death penalty should be reserved for the worst offenders and said he believed
he made the argument to the jury. He did not believe he told the jury that the Petitioner’s
case was the worst case that he had ever had. He explained that if he had made such an
argument, he did so to gain some credibility with the jury. He further explained he was
attempting to separate the Petitioner “from the Unabomber or the man that blew up

-17-
Oklahoma’s federal courthouse or people that intentionally got out there to ruin someone’s
life with premeditation.” Lead Counsel did not believe the Petitioner planned to hurt the
victim “in a cold and calculating way” and attempted to persuade the jury to look past the
guilt phase and give the Petitioner “a fair shot as to life in prison.”

Lead Counsel testified his statement to the jury that the Petitioner’s life once had merit
and promise was a segway into his discussion of the Petitioner’s tough childhood and his
decision to testify against the men who he witnessed commit murder during a robbery. Lead
Counsel also requested the jury not consider life without parole as a possible sentence.
Based upon the Petitioner’s age, he believed a sentence of life and a sentence of life without
parole did not differ. Lead Counsel said, “I think we would have been winning big to have
pulled out life without parole after seeing the proof in this case.”

Lead Counsel said that while he believed the Petitioner committed the offense, he did
not believe Mr. Evans’ testimony was sufficient to support the conviction. He also said that
absent the video of the Petitioner’s walkthrough of the crime scene with the officers, the jury
may not have convicted him of first degree murder.

On cross-examination, Lead Counsel testified he presented evidence of the
Petitioner’s I.Q. during the guilt phase to lessen the impact of evidence presented by the
State. He said when he “really loaded up” his motion for funds to retain a psychologist, he
did not obtain a great amount of resistence from the trial judge in approving the funds. Lead
Counsel relied upon Dr. Angelillo to determine the tests to be administered to the Petitioner
and the protocol for the evaluation. He presented evidence of the Petitioner’s I.Q., which fell
within the borderline range of intelligence, to challenge the validity of the Petitioner’s
confession and his participation in the offense. Dr. Angelillo also testified to the Petitioner’s
long history of cocaine and alcohol abuse and his experiments with LSD. Lead Counsel said
that at trial, the Petitioner appeared as if he fell within the profile of a drug addict and lived
a very hard life. Lead counsel also presented evidence supporting an alibi defense.

Lead Counsel testified Ms. Shettles knew how to obtain the necessary records and
persuade people to relax and open up to her. She composed an outline of the Petitioner’s
social history and mitigation themes. The themes included the Petitioner’s early years of
trauma, his witness to trauma, abuse, illness, the break up of the family, and other significant
losses that he experienced. Ms. Shettles informed Lead Counsel that although James Tools,
the Petitioner’s uncle, resided in Memphis, he had virtually no contact with the Petitioner’s
mother or the Rice children due to his private nature.

Lead Counsel noted evidence was presented during the penalty phase regarding the
Petitioner’s school history, his drug and alcohol abuse, his family’s poverty, the poverty

-18-
stricken neighborhood in which he was raised, the deaths of a number of his siblings, the
effect of their deaths on the Petitioner, his witnessing of a murder, his educational
background, his low I.Q., and his difficulty in coping with his problems. Dr. Angelillo
testified the Petitioner suffered from a significant psychological disturbance and had
symptoms of delusional disorder. Lead Counsel did not want to present evidence that the
Petitioner was violent toward women unless such evidence supported the theory of his
psychosis. He noted the Petitioner’s wife testified he vowed to “get her” after she left him.
Lead Counsel testified the trial court instructed the jury on nineteen mitigating
circumstances.

Lead Counsel recalled friction from the Petitioner’s family members and noted that
many of them refused to cooperate. The one witness who agreed to assist was bitter about
the fact that the co-defendant was also charged. Lead Counsel noted others agreed to speak
to the defense team but refused to attend trial. He was afraid that if he subpoenaed these
witnesses and presented their testimony, they would turn on the Petitioner. He recalled one
witness had already offered testimony at trial that differed from her statement to the
investigator.

Lead Counsel testified he made the decisions about how to proceed in the case.
Before making any big decision, he first discussed it with the defense team. He said Co-
Counsel was not the “stronger lawyer.” On re-direct examination, Lead Counsel said he did
not want Co-Counsel as his second chair on future capital cases because he did not believe
Co-Counsel expended the time required to prepare for such a case.

Lead Counsel said that because family members refused to cooperate and the trial
judge limited Ms. Shettles’ testimony, psychological evidence became a large part of the
mitigation. Had he believed that he needed additional time to prepare evidence of mitigation,
he would have requested a continuance. He was not sure that the mitigation evidence would
have improved had the trial been continued. While Lead Counsel acknowledged he could
have requested funds for a neuropsychologist and a psychiatrist at the same time that he
requested funds to retain Dr. Angelillo, he did not believe the trial judge would have granted
his request absent evidence of particularized need. Dr. Angelillo did not recommend
additional evaluations in his report. Lead Counsel acknowledged that he may have been able
to establish particularized need for other mental health professionals by presenting affidavits
in the same manner in which he established particularized need for Dr. Angelillo’s services.

Co-Counsel was licensed to practice law in Tennessee in April 1993 and represented
one other capital defendant prior to the Petitioner’s case. He estimated that Lead Counsel
performed 60% of the work on the case while he performed 40% of the work. Lead Counsel
decided how to try the case with his input Lead Counsel decided that he would conduct

-19-
opening and closing arguments and identified those witnesses who he would examine at trial.

Co-Counsel testified to the difficulty in obtaining funds to retain investigators and
experts. He and Mr. Skahan initially requested funds to retain investigators and experts. The
trial court did not believe the experts were necessary and denied their request. They
eliminated some of the experts and requested funds for the remaining experts. The trial court
again denied their requests. These motions were presented to the trial judge in chambers, and
a court reporter was not present. One such expert was Dr. Fred Steinberg, a forensic
psychologist, for whom Co-Counsel requested funding shortly after Dr. Steinberg prepared
an affidavit on May 31, 2001. The trial court eventually approved funds for a psychologist
shortly before trial. The trial court also approved funding for investigators but only approved
what Co-Counsel considered to be a small amount. Co-Counsel believed the trial court’s
denial of funds for experts detrimentally affected their ability to present a defense.

Co-Counsel said he did not visit the crime scene but relied upon information gathered
by the investigator and the State’s photographs of the scene. He stated he had two to four
lengthy meetings with the investigators per month and was familiar with the crime scene.

Co-Counsel recalled the theory of defense was based upon the use of illegal drugs and
alcohol by the Petitioner and his co-defendant. They questioned the methods that the
investigators used to obtain the statements from the Petitioner and examined the lack of
forensic evidence and veracity of one of the State’s witnesses. Co-Counsel explained that
the goal of the defense was to place the Petitioner and the co-defendant at a place away from
the scene at the time of the victim’s death. He said that whenever he and Lead Counsel met
with the Petitioner, “the stories were conflicting, the details were fuzzy and it seemed like
every time we went we had different sets of notes. And so it was our theory that it’s even
possible that they weren’t even, they weren’t even there.”

Co-Counsel testified that while the State had evidence placing the Petitioner and his
co-defendant at the scene of the murder, no weapon was recovered. He noted that the
forensic evidence was sparse and that there was little evidence establishing sexual abuse. He
acknowledged that the State had statements from both the Petitioner and the co-defendant
and a statement from a witness who was “totally unreliable.” Co-Counsel said he was
surprised by the jury’s verdict. He also said that while trial counsel did not retain a forensic
pathologist to assist them, he believed such an expert was vital.

Co-Counsel was born with hearing problems and was almost deaf in his right ear. At
trial, he had a head cold that further affected his hearing. He requested a continuance, but
the trial court denied the request. Co-Counsel did not feel comfortable examining witnesses
until near the end of trial. He found it difficult to hear the testimony while sitting at the

-20-
defense table and any discussions during bench conferences. When trial counsel would return
to their seats following a bench conference, he would learn of the trial court’s ruling through
notes from Lead Counsel.

On cross-examination, Co-Counsel testified that although the trial judge ultimately
agreed to approve funds to hire Inquisitor to conduct the fact and mitigation investigations,
the trial judge was extremely hesitant to do so because he believed Inquisitor over charged
and performed more work than was necessary. Co-Counsel acknowledged that Inquisitor had
the reputation as being one of the best investigation firms in the field of capital defense.

The post-conviction court agreed to continue Co-Counsel’s testimony to allow him
to review his file. When direct examination continued, Co-Counsel identified a list that he
had complied with Mr. Skahan of experts that they believed would assist them in the
Petitioner’s defense. The list included a request for funds to retain Inquisitor for $45,000 at
$65.00 per hour; a jury consultant for $500,000 at $100.00 per hour; Dr. Steinberg for
$10,000 at $150.00 per hour; and a forensic specialist for $10,000 at $100.00 per hour. Co-
Counsel said the trial judge approved funds to retain Inquisitor but refused to approve funds
for the experts on the list. The trial judge informed Co-Counsel that the experts requested
were not necessary for this type of case. Co-Counsel noted the order approving the funds for
Inquisitor was entered on June 1, 2001. He requested $10,000 for investigation services
related to the guilt phase and $15,000 for mitigation services. The trial judge, however, only
approved $5,000 for investigation services related to the guilt phase and $5,000 for
mitigation services.

Co-Counsel said that during the penalty phase, the trial court refused to allow Glori
Shettles, the mitigation investigator, to testify regarding the Petitioner’s background and
family history. Ms. Shettles testified on a Saturday afternoon, and trial counsel requested and
were granted until Monday to prepare additional witnesses to testify in light of the trial
court’s ruling. Co-Counsel was unable to recall whether he and Lead Counsel were able to
locate family witnesses or whether they presented additional proof that Monday. He did not
believe they presented any additional evidence. He did not recall what efforts were made to
contact family members or whether the family members refused to cooperate. Co-Counsel
described the case as “touchy” as it was an inner-family crime. He said some family
members were very reluctant to discuss the Petitioner, while others were more forthcoming.

On cross-examination, Co-Counsel testified he met with the investigators frequently.
He recalled obtaining discovery from the State as a joint effort. He did not recall whether
additional funds for Inquisitor were requested from the trial judge when the initial $10,000
had been expended.

-21-
 Co-Counsel stated trial counsel met with the Petitioner on many occasions while
preparing for trial and tried to keep the Petitioner informed of their investigation. Co-
Counsel described the Petitioner as helpful in the defense and said the Petitioner identified
people who were involved in his life and people who were involved in the victim’s life. At
some point, the State offered a sentence of life without parole, but the Petitioner decided not
to accept the plea. Co-Counsel said that when he and Lead Counsel explained the offer to
the Petitioner, he seemed to be coherent and listened to them.

Co-Counsel testified the defense at trial was that the Petitioner did not commit the
offense. The defense maintained the Petitioner’s statement was coerced due to his low I.Q.
and his mental state at the time in which he gave the statement. Co-Counsel said their goal
was to remove the Petitioner from the crime scene at the time that the victim was killed.
Their defense theory was that Tony Evans committed the offense. Co-Counsel stated that
in investigating Mr. Evans, the investigators at Inquisitor examined his divorce paperwork,
his criminal record, his presentence report, and juvenile court records regarding custody
issues. They also presented evidence of an alibi for Mario Rice, the co-defendant. Co-
Counsel explained they believed that if they could establish that the co-defendant was
elsewhere at the time of the offense, it would undermine the Petitioner’s statement to the
police that they were both involved in the offense and strengthen their argument that the
Petitioner’s statement was false.

Co-Counsel said Lead counsel presented Dr. Angelillo as a witness during the guilt
phase to establish that the Petitioner’s I.Q. was low in support of their argument that the
Petitioner had been manipulated by the police officers. Dr. Angelillo also testified regarding
the Petitioner’s use of alcohol, cocaine, and LSD. On the day of the offense, the Petitioner
had consumed alcohol and cocaine and had experimented with LSD. Co-Counsel testified
the victim’s cause of death was not contested at trial. He explained that because the defense
theory was that the Petitioner did not commit the offense, he did not believe an exploration
into the victim’s cause of death was necessary.

Co-Counsel testified that although he did not expect a guilty verdict, the defense team
was prepared for the penalty phase. During the penalty phase, trial counsel sought to present
evidence of the Petitioner’s mental history, childhood, and interactions with his family to
“[m]ake him more of a person rather than this heinous animal that had been painted during
the trial.” They attempted to establish the Petitioner lived a tragic life. They were not
attempting to excuse his conduct but were attempting to make him sympathic to the jury. Co-
Counsel recalled presenting the testimony of the Petitioner’s sister regarding the family
tragedies, including the Petitioner’s witnessing a murder and their brother’s drowning.
Investigators obtained the Petitioner’s school records, institutional records, and birth records.
Co-Counsel recalled presenting proof that the Petitioner was not a good student and had not

-22-
been a problem while in jail. The defense also called Dr. Angelillo to provide more detail
regarding the Petitioner’s personality traits, his way of coping with problems, his tendency
to become overwhelmed by circumstances, the effect of his low I.Q. on how he processed
information, and his inconsistent work history.

Co-Counsel did not believe that any expert found the Petitioner reacted violently
against women when confronted by loss or problems in his life. He said he would not have
wanted the jury to know that the Petitioner was violent toward women. He also said no
evidence was presented during the penalty phase that the Petitioner was “out of control”
because such evidence was contrary to their mitigation theme.

Co-Counsel said he and Lead Counsel requested the trial court instruct the jury
regarding several mitigating factors, including the Petitioner’s low I.Q., his drug use, his poor
educational background, and the deaths in his family. The trial court did not instruct the jury
on every mitigating factor requested. Mitigating factors that the trial court instructed the jury
included any testimony that the Petitioner was diagnosed with a significant psychological
disturbance or that he was intoxicated, which may have substantially impaired his capacity
to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of
the law and may have substantially effected his judgment.

On redirect examination, Co-Counsel testified he had approximately ten meetings or
less with Mr. Lax and three to four meetings with Ms. Shettles. Each meeting with Ms.
Shettles lasted for at least one hour. Co-Counsel did not interview the Petitioner’s mother
and did not know whether the investigators or Lead Counsel interviewed her. He believed
Larry Rice was contacted. He did not recall speaking to Andrew Folson or James Tools.

Co-Counsel said one of the defense theories was that the Petitioner’s statement was
the result of coercion by officers. He cross-examined the officers who conducted the
questioning but did not believe he and Lead Counsel ever considered hiring a false
confession expert.

Co-Counsel was responsible for conducting the cross-examination of Dr. Garnder, the
medical examiner. At the conclusion of the State’s direct examination of the doctor, he
expressed to Lead Counsel and the Petitioner his concerns that any cross-examination would
open the door to allow the State to imply that the victim was raped when no evidence of rape
had been presented. He did not believe Dr. Gardner’s testimony on direct examination had
adversely affected the defense theory. Co-Counsel stated he did not question Dr. Gardner
on cross-examination because he “didn’t want to open any door for the state to come back
in and present evidence that was not, that was not even presented to begin with.” He did not
recall Dr. Gardner testifying that the victim had been raped or sexually assaulted. No DNA

-23-
evidence was presented to establish rape or sexual assault. Co-Counsel acknowledged that
the lack of DNA evidence could be inculpatory.

Co-Counsel said the Petitioner’s sister, Joyce Rice, who testified during the penalty
phase, may have been the only member of the Petitioner’s family who agreed to testify. He
also said that the defense team attempted to reach numerous family members and that a
number of them refused to attend trial. Co-Counsel could not recall whether co-defendant
Mario Rice was Joyce’s son and acknowledged that the Petitioner had implicated the co-
defendant in the offense.

Dr. O’Brian Clarey Smith, a forensic pathologist, was admitted by the post-conviction
court as an expert in forensic pathology. Dr. Smith was the medical examiner at the scene
where the victim’s body was found and participated in the autopsy. He testified the victim’s
body was discovered in an advanced state of decomposition. He believed Dr. Gardner’s
testimony at trial regarding the cause of the victim’s death was accurate.

Dr. Smith characterized Dr. Gardner’s testimony that decomposition to the vaginal
area could be explained by trauma or some type of injury prior to the victim’s death as
misleading. Dr. Smith explained that other practitioners commonly identified relaxation of
the various openings of the body, such as the anus, vagina, and uretha, as signs of abuse
when they were simply the natural occurrence of relaxation following death. The
combination of the opening of the body and the decomposition process during which bodily
fluids exit those areas attracted carnivorous insects and animals. As a result, the area was
prone to early decomposition or anthropophagy or the eating of the tissues by creatures which
could produce an artifact that mimicked injury. Dr. Smith found no evidence of severe
bruising or physical trauma in the area. He explained:

To have that type of knowledge about the preferential decomposition of the
groin area and be able to state that you think that an injury occurred prior to
death in that area is unsupportable due to the fact that the child was out there
for over a week in circumstances that are absolutely ideal for the consumption
of that dead body by carnivorous animals and insects.

On cross-examination, Dr. Smith testified the amount of decomposition in the groin
area could have been associated with trauma. He said, “Trauma cannot be ruled out.” He
believed Dr. Gardner overstated the trauma as a possibility and in linking any trauma to have
occurred prior to the victim’s death. Rather, an injury could have occurred after the victim’s
death.

Dr. Smith said that when he first examined the victim during the autopsy, there were

-24-
no internal organs or soft tissue to examine. DNA samples were not taken due to the
decomposition of the surface of the body. On redirect examination, Dr. Smith testified that
due to the condition of the victim’s body, Dr. Gardner’s “statement that there was trauma in
that area before death has no support from any observation that could be made from that
area.”

Brandy Downey Harwell, the victim’s step-sister, testified she was interviewed by an
investigator in 2001 regarding the events of June 18, 2000. The victim was staying with her
and her family that weekend. Ms. Harwell said that on June 18th, she, the victim, her sister,
and a few other friends walked around the neighborhood just as they normally did on the
weekends. They went to the New Chicago Grocery Store where they saw the Petitioner. Ms.
Harwell said the Petitioner and Tracie Rice, the victim’s mother and the Petitioner’s wife,
were known users of crack cocaine. The victim’s mother had recently left the Petitioner.
Ms. Harwell recalled that when she saw the Petitioner at the store, he was drinking a beer and
talking to a known drug addict and dealer.

Ms. Harwell testified she saw the Petitioner again as they were walking toward
Bellevue. The Petitioner spoke to the victim and then left. Ms. Harwell did not see the
Petitioner again that day. They then walked to the Petitioner’s house to see if the victim’s
mother was there. The victim also wanted to walk the Petitioner’s dog. When they arrived,
the victim went inside the house while Ms. Harwell and her friends remained outside. Ms.
Harwell saw the Petitioner’s parents sitting outside and never saw the Petitioner exit the
house. The victim came back outside, told her friends that they needed to leave, and
reentered the house. Ms. Harwell said they left without the victim at approximately 3:30 p.m.
or 4:00 p.m.

Monica Downey testified that on June 18, 2000, she, Ms. Harwell, Erika Downey,
Lakeisha Ford, and the victim walked to the New Chicago Grocery Store where they saw the
Petitioner. The Petitioner spoke to the victim, but Ms. Downey did not know what he told
the victim. The girls then walked to the Petitioner’s house where the victim was supposedly
going to walk the Petitioner’s dog. Ms. Downey was unaware of whether the victim had
walked the Petitioner’s dog on prior occasions. The victim remained at the residence, and
Ms. Downey and her friends left.

Ms. Downey stated the victim never indicated that she was afraid of the Petitioner but
rather saw him as a father figure. She did not know whether the Petitioner had been drinking
alcohol that day. She did not recall telling an investigator in 2001 that she believed that the
Petitioner was drinking a beer. She also did not recall telling the investigator that the victim
often walked the Petitioner’s dog and that she did not think it was strange that the victim
wanted to do so. Ms. Downey acknowledged that the Petitioner had the reputation in the

-25-
neighborhood as a drug user. She did not see the Petitioner at his residence and did not see
the co-defendant at all that day.

Glori Shettles, a mitigation investigator with Inquisitor, testified her duties included
obtaining information from the client regarding background, school, family makeup, juvenile
records, drug and alcohol history, medical history, and history of mental health. She
generally gathered records for three generations or as far back as she could go. She also
generally sought to interview as many people who had contact with the client as she could,
including teachers and former employers.

Ms. Shettles said a mitigation investigation generally took eighteen months to
complete. The client and relatives may have difficulty recalling events or may not be
forthcoming. Ms. Shettles must attempt to build a rapport with the family members so that
they will reveal family secrets. She preferred to interview the family members more than
once and preferred to discuss various records with the client and family members after
receiving and reviewing them.

Ms. Shettles testified she conducted the mitigation investigation for both the
Petitioner’s trial and post-conviction relief hearing. She said that because the Petitioner’s
nephew was a co-defendant, some of the family members sided with the co-defendant and
were not as cooperative prior to trial. When questioned regarding the family’s cooperation
in preparing for the post-conviction hearing, Ms. Shettles replied, “I think time, literally, time
passing had made a difference.” She understood from another investigator with Inquisitor
who interviewed these family members in preparing for the post-conviction hearing that they
were more cooperative and provided more information.

Ms. Shettles was told that James Tools, the Petitioner’s maternal uncle, was a very
private person and did not associate with the rest of the family often. She attempted to locate
Mr. Tools closer to trial but was unable to do so. She said Mr. Tools was interviewed in
preparing for the post-conviction hearing and provided information that she was told prior
to trial that he did not have.

Ms. Shettles testified she believed the preparation of the mitigation aspect of the trial
was very poor. Trial counsel focused more upon preparing for the guilt phase of the trial.
She explained that in preparing for the guilt phase of the trial, counsel should also be aware
of the results of the mitigation investigation in order to determine whether information
obtained during the mitigation investigation can be incorporated into the presentation of the
evidence during the guilt phase. Ms. Shettles believed that a collaborative effort between the
members of the defense team was lacking in the Petitioner’s case. She understood that Co-
Counsel was responsible for preparing the mitigation aspect of the case but recalled meeting

-26-
with Co-Counsel on only one occasion and did not recall any conversations or
correspondence with him.

Ms. Shettles recalled meeting with the defense team on multiple occasions a little
more than a month before trial. She said such meetings within a short period of time before
trial were unusual and did not allow them time to prepare a mitigation strategy. She did not
recall a strategy for the mitigation. She did not believe any method was developed to present
the information known about the Petitioner to the jury either through a witness or expert
testimony.

Ms. Shettles said her first entry in her billing records was May 1, 2001. She did not
recall when Lead Counsel began representing the Petitioner or whether there was a period
of time in which he was not involved in the case. Ms. Shettles said that based upon her
records, she did not have any discussions with Lead Counsel between August 6 and
December 7, 2001, regarding the status of the mitigation investigation. She knew Lead
Counsel had sent letters in preparing his motions requesting funds for an expert and knew
from the correspondence that Lead Counsel had read the records and her memoranda.

Ms. Shettles met with Lead Counsel on December 6, 2001, and did not believe Co-
Counsel was present. She met with both Lead Counsel and Co-Counsel on December 20th.
The next day, she spoke to Lead Counsel. On January 2, 2002, she met with Mr. Lax and
Lead Counsel. She met with trial counsel, Dr. Angelillo, and the Petitioner three days later
and testified on January 12th. Ms. Shettles testified that to her knowledge, Co-Counsel never
attempted to meet with any of the family members or any other witnesses except possibly
those who testified during the penalty phase. She had no personal knowledge of any
substantial preparation of the mitigation evidence by Co-Counsel prior to the penalty phase.

Dr. Angelillo was appointed shortly before trial. Ms. Shettles believed that retaining
a mental health expert within one to two months before trial was unusual. She acknowledged
that an evaluation conducted by an expert such as Dr. Angelillo could lead to the need for
other experts. Ms. Shettles testified both a psychologist and a neuropsychologist were
typically used in cases when the petitioner had limited education and learning disabilities.
A neuropsychologist was not used in the Petitioner’s case. Ms. Shettles was aware of the
Petitioner’s drug and alcohol usage and believed his case was the type in which counsel
would request funds to retain an addictionologist. She believed an expert who could explain
the effects of alcohol or drugs would have assisted the jury in putting the Petitioner’s actions
into context. Ms. Shettles believed additional investigation into the mitigation aspect of the
trial was needed, but she did not have time to do it before trial. As a result, she did not
believe that the case was ready for trial.

-27-
 On cross-examination, Ms. Shettles testified she did not recall when she was
appointed at the trial level but thought it may have been in May 2001. She began the
mitigation investigation shortly after the appointment and gathered the majority of the
records within a few months of the appointment. She acknowledged that many of the family
members would not cooperate prior to trial because the Petitioner had implicated his nephew.
Some of those relatives who refused to cooperate for purposes of trial later cooperated for
purposes of the post-conviction hearing.

Ms. Shettles said the defense team never discussed or developed themes for
mitigation. She, however, expended a large amount of time developing themes and a social
history. She addressed the background of both of the Petitioner’s parents, his childhood and
siblings, his witnessing of trauma and abuse, his sister’s illness and death, the breakup of the
family, and deaths in the family and other significant losses. She included a discussion of
how the Petitioner’s neighborhood changed from a blue collar neighborhood to an
impoverished neighborhood. She also included a discussion of the Petitioner’s limited
education and his witnessing of a homicide and its effect on him. Ms. Shettles noted that the
Petitioner was worried about possible retribution for testifying against the defendants and
that his witnessing of the murder affected the way that he viewed the world. She obtained
a transcript of the Petitioner’s testimony at that trial.

Ms. Shettles noted the Petitioner’s problems with relationships and abuse, witnessing
abuse by his father, and the death of his brother as other areas that affected his life. She
further noted his history of drug abuse which also involved the victim’s mother, the way in
which he viewed the world, his feelings of powerlessness, and his feelings of being unloved.
Ms. Shettles’ notes from her meeting with trial counsel on December 6, 2011, show that they
discussed the Petitioner’s borderline I.Q., his jail records, his issues with family, the deaths
of his siblings and their impact, and his testimony for the State in the trial of defendants
Sample and McKay.

Ms. Shettles testified she included a discussion of potential witnesses in her
memorandum which included the Petitioner’s sister, Joyce Rice, and his brother, Larry Rice.
Joyce, who was also the co-defendant’s mother, told Ms. Shettles that the Petitioner’s other
siblings would not help him. Ms. Shettles said she did not believe Joyce and Larry were able
to articulate good qualities or positive aspects about the Petitioner. Ms. Shettles was allowed
to testify at trial about the deaths of the Petitioner’s sister and brother. She did not listen to
the testimonies of Dr. Angelillo or Joyce at trial.

Ms. Shettles interviewed Rossette Folsom, a relative of the Petitioner, in an attempt
to obtain background information on the Petitioner’s father. Ms. Shettles said she did not
believe Ms. Folsom provided all information that she had and was vague with regard to the

-28-
information that she provided.

Ms. Shettles testified she obtained a number of records. She attempted to locate the
Petitioner’s teachers but found it difficult because the school records only recorded the last
names of the teachers. In investigating the case for the post-conviction relief hearing, Ms.
Shettles was not able to locate any additional records or teachers.

On January 7, 2002, Ms. Shettles drafted an email listing all the tasks that she needed
to complete before trial. These tasks included obtaining death certificates for the Petitioner’s
grandparents and a certified copy of the indictment from his prior testimony; issuing and
serving a subpoena for jail records; obtaining a letter regarding the location of the defendant
against whom the Petitioner testified; copying and binding the transcript of that testimony;
binding the bridge exhibit; and copying the death certificates. Ms. Shettles believed she
completed all of these tasks prior to trial.

On redirect examination, Ms. Shettles recalled problems with the trial judge approving
funding. Although she did not recall stopping the investigation as a result, she identified a
memorandum that reflected a work stoppage two months before trial. She said other tasks
could have been and should have been completed prior to trial. On re-cross examination, Ms.
Shettles acknowledged that in these types of cases, there is always something left to do.

James Tools, the Petitioner’s uncle, testified he was aware of the Petitioner’s charges
in 2000 and 2001 but was not interviewed. At that time, he was living in Whitehaven and
employed at the United States Postal Service. He said his family knew where he could be
located.

Mr. Tools was born in Memphis to Josh and Barbara Tools. He had one sister, Delois
Rice, the Petitioner’s mother. She passed away two to three years before the post-conviction
hearing. When Mr. Tools was seven years old, Delois and Earnest Rice, the Petitioner’s
father, eloped. They began having children the next year and had a total of six children:
Pam, Ricky, Joyce, Larry, Carolyn, and the Petitioner. Pam was the oldest, and the Petitioner
was the youngest.

Mr. Tools said Earnest worked in construction while Delois was a homemaker.
Earnest was not educated and could not read and write. Delois could read and write but
never graduated from high school. When the Petitioner was six or seven years old, Earnest
and Delois separated.

Mr. Tools said Delois was a good mother but did not demand that her children follow
her instructions. He believed Delois cared for her children as best as she could. The family

-29-
lived in a bad neighborhood where the Petitioner and his siblings were exposed to fights,
stabbings, alcohol, and drugs. Due to Delois’ lack of supervision, Mr. Tools believed the
children were drinking alcohol in the home. Delois once told him that her boys were
gambling in the home.

Mr. Tools testified Pam was very bright and graduated from high school. She planned
to attend college, and Mr. Tools’ father planned to pay her tuition. Pam was subsequently
diagnosed with lupus and confined to a wheelchair. She remained in a wheelchair for three
to four years before she died at age twenty-two or twenty-three. The Petitioner was eleven,
twelve, or thirteen years old at the time of her death. Mr. Tools believed that Pam’s death
had a negative effect on the Petitioner.

Mr. Tools stated Ricky drowned in a pool when he decided to go for a swim after
drinking alcohol. Carolyn had two children and lived with Delois. Mr. Tools did not believe
Carolyn graduated from high school or that she had a problem with drugs or alcohol. He said
she died suddenly eight or nine years ago, and he did not think Carolyn was sick prior to her
death. He testified Larry was still alive but suffered a stroke after he was “strung out” on
drugs. Due to his condition, Larry was unable to testify.

Mr. Tools was unaware of whether Earnest was violent toward Delois when the
Petitioner was young. He did not know why Delois and Earnest separated. Delois later
remarried Willie Hall, with whom Mr. Tools believed Delois had a good relationship. Mr.
Tools said Mr. Hall lived in a nursing home and was not in a condition that would allow him
to testify. Mr. Tools did not want to see the Petitioner executed and believed life in prison
would be best for the Petitioner and his family.

Joyce Rice, the Petitioner’s sister, testified their parents were deceased. Joyce first
said their parents “got along all right.” She then stated their father accused their mother of
cheating on him and argued with her on a daily basis. Their parents eventually separated and
divorced.

Joyce said Pam was diagnosed with lupus and died in the 1970’s when the Petitioner
was fifteen or sixteen years old. She described Pam as a good person and intelligent. Pam
wanted to attend college and be an accountant, but her illness prevented her from doing so.
Pam and the Petitioner were close, and the Petitioner was good to her. The Petitioner found
Pam when she died, which Joyce said affected the Petitioner.

Joyce testified Ricky was killed by someone who robbed him and beat him in the head
with a stick. She and the Petitioner found his body in a pool. Carolyn died of cancer ten or
eleven years prior to the post-conviction hearing. Joyce said all of their siblings were close.

-30-
 Joyce recalled her father beating her with an extension cord when she was fourteen
or fifteen years old because she was “courting a man” and missed curfew. He also slapped
Pam on one occasion. The Petitioner did not witness the incident but was later made aware
it.

Joyce said the Petitioner did not graduate high school and believed that he quit school
in the eighth grade. She thought he was enrolled in special education classes. Joyce testified
that the Petitioner and Tracie Rice used crack cocaine together and that she saw the Petitioner
using crack cocaine on one occasion. She also testified the Petitioner would drink beer
whenever he had money to purchase it. She recalled one occasion when the Petitioner was
working for Goodwill in which he stopped by her house, drank a can of beer, and returned
to work. Joyce said she loved the Petitioner and did not want him to die.

Andrew Folson, the Petitioner’s first cousin, testified he first met the Petitioner when
he was nine years old and the Petitioner was three or four years old. He, his mother, and
three of his siblings moved from Mississippi and lived with the Petitioner, his parents, and
his siblings. Mr. Folson’s family lived with the Petitioner’s family for approximately one
year, and Mr. Folson continued to spend time with the Petitioner’s family after Mr. Folson’s
family moved.

Mr. Folson noted that the Petitioner’s sister Pam, died when the Petitioner was thirteen
or fourteen years old. Mr. Folson said that the day that Pam graduated from high school,
someone put something in her drink that “kind of messed her up.” He was unaware that Pam
had lupus. He said that the Petitioner and Pam were close and that he believed Pam’s death
affected the Petitioner. Mr. Folson recalled that when the Petitioner was eighteen or nineteen
years old, his brother, Ricky, was found dead in a swimming pool. The Petitioner’s sister,
Carolyn, is also deceased, but Mr. Folson could not recall how or when she died.

Mr. Folson said the Petitioner began drinking alcohol when he was nine or ten years
old. He and the Petitioner would “sneak in” and take their siblings’ alcohol. Mr. Folson first
testified he never saw the Petitioner intoxicated. He then testified that when he did see the
Petitioner intoxicated, he believed “it kind of like altered his character somewhat.” He stated
the Petitioner behaved differently when he was drinking. Mr. Folson heard the Petitioner
would become violent when drinking but never witnessed such violence. He said he, Larry,
and Ricky also had alcohol problems.

Mr. Folson testified the Petitioner skipped school but was unaware of how often he
was absent from school. He said that when he and the Petitioner skipped school they would
“[p]robably go somewhere and go to some store and probably we would steal something and

-31-
give somebody something to buy some, something to drink or something of that nature.”
When truant officers caught them skipping school, they were suspended.

Mr. Folson recalled that the Petitioner’s mother or an older sibling would care for the
Petitioner and his other siblings during the day while his father was working. He said that
while the Petitioner’s mother “looked mean,” he was unaware of her attitude toward her
children. He believed the Petitioner was allowed to “just run wild.” He said that while he
thought the Petitioner’s mother was aware of the Petitioner’s drinking and skipping school,
he could be wrong.

Mr. Folson stopped spending time with the Petitioner in the early 1980’s. He had
heard the Petitioner used cocaine but was unaware of whether the Petitioner developed a
reputation as a drug user. He believed he had heard the Petitioner described as a “weekend
addict.”

Mr. Folson acknowledged that he has been in prison for a majority of his life. He was
incarcerated in 2001 and at the time of the post-conviction hearing. He said no one contacted
him in 2001 regarding his knowledge of the history of the Petitioner’s family.

Don Legler, the Petitioner’s supervisor at Goodwill, testified the Petitioner was
employed as a truck driver at Goodwill from August 1999 until the end of May 2000. He
described the Petitioner as nice, well dressed, and well mannered. Mr. Legler was satisfied
with the Petitioner’s job performance at first. The Petitioner, however, began coming to
work late, leaving early, and deviating from his routes. He was terminated as a result.

Mr. Legler testified he suspected the Petitioner was drinking alcohol and driving while
at work. He recalled smelling alcohol in the cab of the Petitioner’s truck when he returned
it before leaving for the day. Mr. Legler never confronted the Petitioner about the drinking
as he was unsure whether the odor was coming from inside the cab or whether the alcohol
was from the Petitioner or the handler who was also inside the truck. He said that if he had
smelled alcohol on the Petitioner’s breath or observed him in an intoxicated state, he would
not have allowed the Petitioner to drive the Goodwill truck. Mr. Legler never smelled
alcohol on the Petitioner’s breath or observed in him an intoxicated state. Mr. Legler said
other employees had reported instances in which the Petitioner deviated from his route and
stopped at his home. These employees were concerned that the Petitioner had stopped at his
home to use drugs or drink alcohol.

Dr. Pamela Auble, a clinical neuropsychologist, was admitted by the post-conviction
court as an expert in the field of neuropsychology. Dr. Auble explained that a
neuropsychologist typically develops and examines a person’s social history and issues of

-32-
brain dysfunction. Such an examination requires interviews, reviews of records, and
neuropsychological testing. She said a psychological evaluation does not generally examine
brain dysfunction. While an I.Q. test may be administered during a psychological evaluation,
specialized testing to evaluate memory and mental flexibility would not be conducted.

Dr. Abule noted Dr. Angelillo administered I.Q. tests and found the Petitioner’s I.Q.
to be 79, which was in the borderline range. The Petitioner also performed poorly in school,
was enrolled in special education classes, and failed grades. She said this information
indicated possible issues with the functioning of the Petitioner’s brain requiring further
investigation. She acknowledged that Dr. Angelillo administered an intelligence test and two
personality tests, but she was unsure what records that he had reviewed. Dr. Auble said Dr.
Angelillo apparently was never asked to integrate those records with his evaluation or testify
to the effect of the events of the Petitioner’s life. She also said that while Dr. Angelillo listed
the events of the Petitioner’s life during his testimony, he did not discuss those events in
detail.

Dr. Auble met with the Petitioner on three occasions in November 2008 and spent
approximately ten hours with him. She also reviewed school records, testimony from trial,
court records, juvenile records, jail and prison records, the discovery materials, divorce
records, employment records, records of evaluations conducted by Dr. Angelillo and Dr.
Zager in 2001, Dr. Murray Smith’s report, and records of interviews conducted by Inquisitor
in 2001 and 2009.

Dr. Auble said that from her review of the Petitioner’s school records and records of
interviews of witnesses and her interview with the Petitioner, she believed the Petitioner’s
functioning had always been low. The Petitioner was administered the Kuhlam-Finch Test,
a group-administered intelligence test, in the third grade, which resulted in an I.Q. score of
76. He was administered the Lorge Thorndike test, a group-administered intelligence test,
in the fifth grade, which resulted in an I.Q. score of 77. Dr. Auble noted the Petitioner’s
achievement testing did not improve while he was advancing in grade levels. The Petitioner
was also enrolled in special education classes and his attendance was poor. He was absent
for thirty days and tardy fifteen days when in the third grade. Dr. Auble explained such
absenteeism in younger grades showed a lack of supervision or investment in schooling by
the parents. She referenced the interview with Mr. Folson in which he stated the Petitioner’s
mother did not seem to care whether her children attended school.

Dr. Auble said that the Petitioner was enrolled in school up to the ninth grade but that
the last grade in which he actually passed was the sixth grade. He failed the seventh grade
but was placed in the eighth grade. Dr. Auble noted the Petitioner “was only present thirty-
eight days, changed schools, was only present two days, changed schools only present two

-33-
days.” She believed one of the records indicated the Petitioner might have been in the ninth
grade. While the Petitioner had stated he quit school in the tenth grade, Dr. Auble did not
believe he was at that grade level. She explained that those who are not educated are usually
poorly prepared for adult life and are inhibited in their ability to obtain employment. The
Petitioner held many entry-level and temporary jobs but was unable to maintain employment
for a long period of time.

Dr. Auble noted the Petitioner was the youngest of six children and lived in a one-
bedroom house for the first eight years of his life. She said the Petitioner would not have
received a large amount of individual attention from his parent because his parents would
have been distracted with his five older siblings. The Petitioner’s father was verbally abusive
to everyone in the family and easily angered. His father’s anger was generally directed
toward the women, particularly the Petitioner’s mother. The Petitioner informed Dr. Auble
of episodes during which his father cut up clothing and purses and threatened people while
holding a loaded gun. Dr. Auble said such violence would frighten a child and cause the
child to be insecure. The Petitioner, his brother, one of his sisters, and his mother reported
his father was violent toward Pam and knocked her out of her wheelchair. The Petitioner’s
sister reported that their father hit Pam on the face while she was lying on the couch, and the
Petitioner was familiar with the incident. When Joyce was fifteen years old, their father beat
her with an extension cord upon learning that she was dating.

Dr. Auble explained that violence in a household creates an atmosphere of tension and
uncertainty. The children are always on edge because they are waiting for the next violent
episode to occur. Dr. Auble noted research indicating the experience of always being in an
anxious state changes a child’s brain chemistry. She also noted sons who witness violence
from their fathers will often exhibit such violent behavior when they are older. She said the
Petitioner had a tendency to be violent toward women and “explodes” when angry.

Dr. Auble said the Petitioner’s parents separated when he was eight years old. While
the Petitioner maintained contact with his father, he did not see his father on a daily basis.
His mother did not supervise the Petitioner and his siblings. Dr. Auble noted the Petitioner’s
problems at school began when he was in the third grade during the same time period in
which his parents separated.

Dr. Auble testified the Petitioner was eight years old when Pam became sick and
fourteen years old when she died. She reviewed Pam’s medical records and noted she was
diagnosed with lupus and degeneration of the cerebellum, which is a structure of the back
of the brain relating to motor control. Pam was unable to walk and was confined to a
wheelchair. As the disease progressed, she became unable to roll over or sit up for any
length of time. Pam took prednisone for four years, resulting in an enlarged heart. The

-34-
Petitioner was alone with Pam in their home when she died. Pam told the Petitioner that she
knew she was going to die and then went into the bathroom where she died. Their mother
returned and was unable to enter the bathroom because Pam had fallen against the door. The
Petitioner’s brother had to enter the bathroom through a window. The Petitioner told Dr.
Auble that he did not know how Pam’s death had affected him and had not dealt with her
death.

Dr. Auble said Pam was bright and wanted to attend college. Her maternal
grandfather had agreed to pay her tuition. Pam, however, became ill after graduating high
school and never recovered. Out of the six siblings, only Pam and Carolyn graduated high
school.

Dr. Auble testified that in 1980 or 1981 when the Petitioner was sixteen years old, he
was outside of a convenience store when he heard what he believed to be firecrackers. When
he looked inside the store, he witnessed a robbery and murder. The Petitioner became
frightened and ran. He later told police officers that he witnessed the murder and testified
for the State at trial. The two defendants were convicted of first degree murder and received
the death penalty.

Dr. Auble said many deaths occurred in the Petitioner’s family beginning in the mid-
1980s. His grandfather died in 1984; his father died of cancer in 1985; his brother, Ricky,
died in 1986; and his grandmother died in 1986 or 1987. Dr. Auble believed the death of the
Petitioner’s father and brother were particularly difficult for him. She explained that the
Petitioner had ambivalent feelings about his father and felt abandoned by him when his
parents separated. Due to the ambivalent feelings, the Petitioner was unable to come to terms
with his father’s death and did not know how to grieve. The Petitioner’s primary approach
to grief or loss was to avoid thinking about it.

The Petitioner reported to Dr. Auble that Ricky came to his home at approximately
1:00 or 2:00 a.m. on the morning of his death to borrow a screwdriver. Ricky said he and his
girlfriend were having relationship issues but did not want to discuss it further. Two hours
later, someone came to the Petitioner’s door and informed him that Ricky was in a swimming
pool. The Petitioner ran to the swimming pool and saw Ricky dead and floating in the water.
The Petitioner could not swim and called 911. By the time the ambulance arrived, Ricky was
dead. Dr. Auble stated the police report of Ricky’s death confirmed the Petitioner’s version
of the events. She acknowledged that members of the Petitioner’s family seemed to believe
Ricky was murdered or that his death was the result of foul play. Dr. Abule said the
Petitioner did not know how to deal with the fact that Ricky died in front of him.

-35-
 Dr. Auble testified the Petitioner and his family did not address illness, death, and
tragedy but kept their feelings to themselves. She noted that according to a discharge
summary in 1977, Pam was referred to a mental health center because she could not burden
her family with the agony of her illness. Dr. Auble noted that Mr. Folson described the
Petitioner as quieter than others in his family. She also noted that the Petitioner and his
family members rarely showed emotion. When the Petitioner was drinking alcohol, however,
he became angry. Dr. Auble said that the Petitioner’s behavior deteriorated following Pam’s
death and that his grades began to suffer. In the 1980’s, the Petitioner’s drinking and drug
usage increased, and he began using crack cocaine. Joyce and her boyfriend reported the
Petitioner had used crack cocaine in their car. The Petitioner was unable to maintain long
term employment. He worked at Goodwill Industries from 1999 to 2000 but was fired after
he was caught drinking while on the job.

Dr. Auble noted a witness saw the Petitioner drinking a beer and purchasing drugs on
June 18, 2000, the date of the victim’s death. Dr. Murray Smith and Dr. Angelillo discussed
the Petitioner drinking and using drugs that day. The Petitioner reported to Dr. Auble that
he used crack cocaine, LSD, and alcohol on June 18.

Dr. Auble administered eighteen tests to the Petitioner, including testing for
intelligence, memory, mental flexibility, achievement, motor skills, language, attention and
concentration, adaptive functioning, malingering, and personality. Dr. Auble said that while
Dr. Angelillo administered an I.Q. test and personality tests, the remaining tests that she
administered were neuropsychological tests that Dr. Angelillo would not have been expected
to know how to administer. She administered the Test of Memory Malingering and
determined the Petitioner was not malingering. She also administered the Wechsler Adult
Intelligence Scale, Fourth Edition and determined the Petitioner’s full scale I.Q. to be 76.
Dr. Auble said this score was consistent with the scores of testing administered by Dr.
Angelillo and the school system.

Dr. Auble said those people who are not intelligent generally experience more
difficulties in coping with life. She noted the Petitioner’s intelligence was lower than the
other members of his family as he was the only one who was enrolled in special education
classes. Dr. Auble said the Petitioner’s functional intelligence worsened when he was
intoxicated. He was born into a family whose way to cope with problems was to “shut
down.” She described the Petitioner as someone who did not understand his emotions so that
“he ends up like his father having emotional outbursts against women mostly. You know,
his intelligence has limited his ability to cope with his world.”

Dr. Auble noted that at the end of May 2000, the Petitioner was fired from his job at

-36-
Goodwill. She explained that as a result, he had more time to use drugs and drink alcohol,
which further impaired his functioning. His wife left him in early June 2000. Dr. Auble did
not believe the Petitioner was capable of processing or coping with this stressor. He
continued to increase his intake of alcohol and crack cocaine. He had been arrested for
assault and was on probation and in an anger management program as a result. Two days
before the victim’s death, the Petitioner learned that a former girlfriend with whom he was
involved in a relationship for ten years had died.

Dr. Auble understood that the Petitioner and Tracie Rice married because they used
crack cocaine together. She said Tracie was unstable and may have had a history of
psychological treatment. Tracie and the Petitioner fought often. When the Petitioner ran out
of money, Tracie would leave him and obtain crack cocaine elsewhere. Dr. Auble said
Tracie’s abandonment was difficult for the Petitioner.

Dr. Auble administered the Wechsler Memory Scale and determined the Petitioner’s
memory was below the first percentile for his age category. She said fewer than 1% of those
with his full scale I.Q. would have a obtained such a low score. She also said that as a child,
the Petitioner was unable to remember information told to him. His achievement tests did
not improve as he advanced each grade level because he was not learning what other students
learned during each year. As a result, the discrepancy between the information that the
Petitioner learned and his grade level increased each year. Dr. Auble understood the
Petitioner was enrolled in the GED program for several years while in prison but never
obtained his GED. She believed the Petitioner was unable to obtain his GED because his
memory was impaired.

Dr. Auble believed the Petitioner’s problems with memory also affected his job
performance. She noted that while employed at Goodwill, the Petitioner had difficulties
maintaining his log and keeping track of his schedule. She believed the Petitioner’s memory
“is something that effects his functioning in his life and that cumulatively had an effect on
where he was in the few weeks before this offense.”

Dr. Auble also tested the Petitioner’s ability to multi-task or plan and change behavior.
The Petitioner’s performance was average on the structured testing. He found open-ended
questions to be more difficult. Dr. Auble said the results from the testing revealed the
Petitioner was unable to adapt to change in open-ended situations. She explained the
Petitioner was overwhelmed by the events that were occurring at the time of the offense and
was unable to determine a rational solution to the problem. She said that as a result, the
Petitioner “ends up in a situation where terrible and tragic things happen.” Dr. Auble noted
that the Petitioner had adapted well to a structured setting like prison and only had one write-

-37-
up while in prison.

Dr. Auble testified the Petitioner’s drug and alcohol use also impaired his mental
functioning and affected his ability to cope. She said he would have likely behaved in an
impulsive manner with drug and alcohol use. As a result, he was more likely to engage in
irrational behavior. Dr. Auble diagnosed the Petitioner with cognitive disorder not otherwise
specified with particular deficits in verbal memory, reading, and spelling and some
impairment in concentration and executive functioning.

On cross-examination, Dr. Auble testified she did not know whether the Petitioner’s
parents divorced or whether his father’s death ended the marriage. The children continued
to see their father after their parents separated. Dr. Auble acknowledged Joyce Rice had
stated that the children were close to their father. The Petitioner said he had regular contact
with his father but felt that his father was not there for him.

Dr. Auble explained that a person who is raised in a violent environment will
sometimes address situations in a violent matter as the person grows older. The Petitioner
admitted his violent behavior to Dr. Auble. The doctor saw the seeds of such behavior at an
early age, and the behavior proceeded in the Petitioner’s relationship with his wife.

Dr. Auble was unsure when the Petitioner began drinking alcohol and stated he could
have begun at age eight, nine, eleven, or twelve. She identified the danger of using alcohol
on a regular basis at an early age when the brain is forming. Dr. Auble believed the
Petitioner was “reasonably” upfront with her about his alcohol and drug abuse.

Dr. Auble testified that when the Petitioner was confronted with an event such as a
death in the family, he responded by drinking alcohol and ingesting drugs. He also had
emotional outbursts, particularly when he was intoxicated. He was under the influence of
drugs and alcohol on a regular basis around the time of the victim’s death. Dr. Auble found
that throughout the Petitioner’s life, his explosive outbursts were generally directed against
the women in his life.

Dr. Auble acknowledged that Dr. Angelillo discussed the Petitioner’s explosive
temper and personality characteristics and listed his social history. Dr. Auble said Dr.
Angelillo was never asked from where the Petitioner’s behavior came and why he behaved
in such a matter. She did not know what information Dr. Angelillo reviewed for the
Petitioner’s social history. She acknowledged that Dr. Angelillo found that the Petitioner’s
daily functioning was characterized by severe dependency needs and that the Petitioner could

-38-
not function without the approval and acceptance of others. Dr. Auble agreed with Dr.
Angelillo’s finding that the Petitioner was likely to be very angry at those who he had
become dependent upon as well as himself for being so dependent. Dr. Auble said, “Dr.
Angelillo was never asked to say where did that come from, how did he get to be that way.
Which is something that I think normally would be asked if you’re an expert.”

Dr. Auble testified that while the Petitioner was capable of learning, he learned at a
much slower pace than others. She said the more complicated the information, the less likely
that the Petitioner would have been able to remember it.

On redirect examination, Dr. Auble testified she did not discuss the case with Dr.
Angelillo. She said the general psychological testing administered by Dr. Angelillo would
have been the same testing that she would have administered had she been a general
psychologist.

Dr. Murray Smith, a physician in Nashville, Tennessee, was admitted by the post-
conviction court as an expert in addiction medicine. Dr. Smith testified he was asked to
identify the effect the Petitioner’s drug and alcohol use might have had on his behavior and
decisions at the time of the offense on June 18, 2000. In evaluating the Petitioner, Dr. Smith
relied upon Dr. Auble’s report, Dr. Angelillo’s report, the transcript of Dr. Angelillo’s
testimony at trial, and summaries of interviews of witnesses conducted by Inquisitor in 2001
and 2009. Dr. Smith also met with the Petitioner on November 12, 2009, at the Riverbend
Maximum Security Prison in Nashville. He acknowledged that blood testing of the Petitioner
at the time of the offense was not available.

Dr. Smith testified family and social history is important in his analysis as past events
influence present and future behavior. He noted the Petitioner and his family lived in a
small, crowded home. The Petitioner’s father exhibited violent behavior toward his mother
and two sisters. The Petitioner witnessed his father strike his mother on multiple occasions.
His father struck his sister, Pam, who had lupus and neurologic complications from lupus that
confined her to a wheelchair. His father also beat another sister with an electric cord.

Dr. Smith noted the Petitioner’s parents divorced when he was eight years old. Pam
died of complications from lupus. Dr. Smith said the Petitioner was close to Pam and was
with her when she died. The Petitioner felt responsible for her death. The Petitioner’s
brother, Ricky, drowned. Dr. Smith said the Petitioner was taken to the swimming pool, saw
Ricky lying in the bottom of the pool, and felt helpless.

Dr. Smith testified the Petitioner informed him that he began drinking alcohol when

-39-
he was approximately eleven years old and would obtain it from friends and older relatives.
He also reported to smoking marijuana and cigarettes during that same time period. He told
Dr. Smith that by the age of fifteen or sixteen, he was smoking marijuana and cigarettes and
drinking alcohol daily. Dr. Smith noted this time period correlated with the Petitioner’s
failing the seventh grade twice and his truancy. The Petitioner informed the doctor that at
the age of eighteen, he substituted the marijuana with crack cocaine while continuing to
smoke cigarettes and drink alcohol. The Petitioner estimated drinking eight to twelve beers
most evenings. He increased the amount of alcohol that he consumed on weekends.

Dr. Smith testified he believed the Petitioner was addicted to alcohol, crack cocaine,
and tobacco. He described crack cocaine as one of the most addictive substances. He said
the drug caused a “sudden rush of tremendous pleasure and a feeling of strength and being
superman or superwoman.” The feeling lasts from thirty minutes to one hour. Once that
feeling is over, the person begins to crave that feeling again. Alcohol, however, results in
a calming effect and blocks the receptors that cause anxiousness.

Dr. Smith noted that Dr. Angelillo administered personality tests and an I.Q. test to
the Petitioner. Dr. Angelillo concluded the Petitioner exhibited anxiety, depression, some
degree of paranoia, difficulty with interpersonal relationships, diminished intelligence, and
some degree of explosiveness in terms of violence. Dr. Smith also noted that Dr. Auble
administered more extensive testing to define brain functioning as it related to intelligence,
memory, and his ability to address complex problems that arose in daily living. Dr. Smith
said both doctors concluded that the Petitioner “had significant dysfunction not only in terms
of . . . the decreased intelligence, but also decrease in terms of how well he could handle
problems, understand problems. How well he could organize a plan about how to handle
things. How well he could understand what was happening.” Dr. Smith acknowledged that
he listed the Petitioner’s dysfunctions in his report as anxiety, depression, and paranoia as
those were the dysfunctions that Dr. Angelillo found in his testing.

Dr. Smith testified dysfunctions of the brain and some personality characteristics
worsen with alcohol and crack cocaine use. Alcohol increases impulsivity, decreases
inhibitions and comprehension, and shortens the fuse for violence. Cocaine diminishes the
blood flow to the brain thereby diminishing brain function. Dr. Smith explained that cocaine
also affects a person’s ability to understand a problem, devise a plan to address the problem,
and implement or change the plan. He described the combination of alcohol and crack
cocaine on brain function as “devastating” and said the combination worsened the
Petitioner’s existing dysfunctions.

Dr. Smith noted the stressors in the Petitioner’s life had increased at the time of the
offense. On May 24, 2000, he lost his job at Goodwill Industries where he was being paid

-40-
$12,000 to $13,000 per year. On June 6, his wife left him. During the weekend of June 17,
the Petitioner learned that Vernetta Houston, with whom he had a ten-year relationship, had
died of liver disease. Because the Petitioner was no longer employed and had been upset,
he increased his daily intake of alcohol and drugs beginning at approximately the first of June
2000. He reported to Dr. Smith that he would go to sleep at 2:00 or 3:00 a.m. and waken at
6:00 a.m. When the Petitioner did sleep, it was a “restless worried type sleep.” The
Petitioner told the doctor that on June 18, at 10:00 or 11:00 a.m., he went to his drug dealer’s
home where he drank alcohol and smoked crack cocaine. He also tried LSD, a hallucinogen
for the first time by dipping a cigarette into the LSD solution and smoking it. The Petitioner
also told Dr. Smith that from June 18 to June 25, he used alcohol and crack cocaine on a
daily basis.

Dr. Smith stated the Petitioner told him that on Sunday, June 25, at midday, police
officers arrested him, drove him to an area across the street from where the victim’s body
was discovered, and parked there for a period of time. He reported that while at the police
station, officers constantly harassed and questioned him and did not allow him to rest. Smith
testified that because the Petitioner was using alcohol and crack cocaine daily, he would
begin to have withdrawal symptoms within twelve to eighteen hours after his last use of
alcohol and cocaine. He said the treatment for withdrawal included little noise, dim lighting,
and rest, none of which the Petitioner was afforded at the police station.

Dr. Smith testified the Petitioner was emotionally upset on June 18, 2000, due to the
events that had been occurring in his life. He did not possess the tools to address those
stressors. Rather, he reacted by continuing to ingest alcohol and cocaine.

On cross-examination, Dr. Smith testified the Petitioner was calm and polite during
their meeting. The doctor recognized the Petitioner suffered from memory problems in
attempting to recall dates and occurrences. Otherwise, the Petitioner attempted to answer all
questions to the best of his ability. Dr. Smith acknowledged that Dr. Angelillo found the
Petitioner to be very angry, somewhat sullen, mistrustful, and generally self-indulgent. Dr.
Smith said the Petitioner was more polite and cooperative with him. Dr. Smith did not
administer tests but considered the results and interpretations of testing administered by
others in his diagnosis. He acknowledged that Dr. Angelillo found that the Petitioner had a
disregard for authoritative figures and a tendency to deny responsibility and blame others for
his problems. He also acknowledged that “every addict is a con artist.”

Dr. Smith noted Dr. Angelillo found the Petitioner used a large amount of drugs and
alcohol. He said the fact that the Petitioner was using drugs appeared throughout the record.
He acknowledged that he obtained the information regarding the amount and frequency of
the drug use from the Petitioner. The Petitioner reported he obtained money to purchase

-41-
cocaine, alcohol, and cigarettes during the last weeks in June 2000 when he was unemployed
by “[h]ustling.” He also reported three to five people with whom he shared cocaine and that
his dealer would also “front” him drugs.

Dr. Smith concluded in his report that “because of the effects of alcohol, cocaine, LSD
and sleep deprivation on the psychological and cognitive dysfunction of Mr. Rice’s brain, he
would have difficulty understanding the circumstances and conforming his behavior in an
appropriate manner on 18 June, 2000.” Dr. Smith said the Petitioner never discussed the
victim’s death or his involvement.

Dr. Gregory DeClue, a forensic psychologist, was admitted by the post-conviction
court as an expert in forensic psychology. Dr. DeClue focused upon the psychology of
interrogations and confessions and evaluated the Petitioner with regard to his statements to
police. He reviewed the reports of Dr. Angelillo, Dr. Auble, and Dr. Murray Smith and the
videotape of the walkthrough of the crime scene with the Petitioner and the police officers.
He also interviewed the Petitioner and administered tests. He said the Petitioner appeared
calm and relaxed during the interview.

Dr. DeClue did not administer intelligence testing but relied on testing previously
administered by others. Dr. Auble assessed the Petitioner in 2008 and determined his I.Q.
was 76. In 2001, Dr. Angelillo determined the Petitioner’s I.Q. was 79. The Petitioner’s
school records indicated two other scores in the 70s. Dr. DeClue noted from the Petitioner’s
childhood to his adult years, he had an I.Q. in the borderline range.

Dr. DeClue administered the Woodcock-Johnson test, a battery of tests that address
reading and listening comprehension. He found the Petitioner’s reading skills were at about
the third grade level. His oral language, oral expression, and listening comprehension skills
were at the fourth grade level. His memory tests scores fell within the kindergarten to first
grade level.

Dr. DeClue said he analyzed the Petitioner’s statement to police to determine whether
he knowingly, voluntarily, and intelligently waived his Miranda rights and whether his
statement was voluntary and reliable. In making these determinations, Dr. DeClue utilized
the Instrument for Assessing, Understanding, and Appreciation of Miranda Rights, which
included four subtests. With regard to the first subtest, the Comprehension of Miranda
Rights, Dr. DeClue presented a set of rights to the Petitioner and asked him to explain them
in his own words. The Petitioner was able to see the words, and the doctor read the words
to him. Dr. DeClue said the Petitioner received a score of six out of a possible eight points.
He explained the Petitioner demonstrated some understanding of the Miranda rights and was
able to paraphrase the rights fairly well.

-42-
 In the second subtest, the Comprehension of Miranda Rights Recognition, Dr. DeClue
gave the Petitioner two sentences for each of the rights and asked him whether the sentences
were similar or different. He said that while the sentences appeared to state the same thing,
the meaning of each sentence was different. The Petitioner received a score of six out of
twelve.

In the third subtest, the Comprehension of Miranda Vocabulary, Dr. DeClue asked the
Petitioner to define words included in the Miranda rights. The Petitioner was able to
correctly define “attorney,” “entitled,” and “right.” He understood “consult” to mean
“something about talking” but was unable to be more specific. He was unable to correctly
define “interrogation” and “appoint.” The Petitioner received a score of seven out of twelve.

In the fourth subtest, the Function of Rights and Interrogation, Dr. DeClue provided
the Petitioner with different scenarios and questions to determine whether he understood the
rights and could put them in context. The Petitioner received a score of fourteen out of thirty.
The doctor said that while the Petitioner had some understanding of the issues, he did not
have a good understanding of some of the important issues. For example, when questioned
about a defendant who is consulting with his attorney, the Petitioner stated he believed the
defendant should remain silent.

Dr. DeClue testified that according to the results of these tests, the Petitioner was able
to do “somewhat good” in defining the Miranda rights in his own words. The Petitioner
missed important distinctions in recognizing the differences in the rights. The doctor said
the Petitioner “did not show very good ability” in applying the rights or putting them into
practice. Dr. DeClue acknowledged that there could have been some changes in the
Petitioner’s understanding in the rights between the time he was questioned by law
enforcement officers in 2000 and the testing in 2010. He said he saw no evidence suggesting
the Petitioner would have had a better understanding of his rights in 2000. Rather, Dr.
DeClue noted the Petitioner made comments suggesting that he knew more about his rights
after the trial was completed.

Dr. DeClue also administered the Gudjonsson Suggestibility Scale (GSS), a test of
interrogative suggestibility. He read a fairly long paragraph to the Petitioner and asked him
to state what he remembered. Dr. DeClue said that on average, a person will recall
approximately twenty different details but that the Petitioner only recalled four and one-half
details. The doctor believed the results were consistent with the results of other testing that
he administered and demonstrated the Petitioner’s memory for details was quite low. As part
of the test, the doctor was supposed to wait thirty minutes and then ask the Petitioner to again
repeat as many details as he recalled. Dr. DeClue explained that when a person like the
Petitioner scores very low on the immediate recall, it is recommended that this portion of the

-43-
test not be administered. He believed the Petitioner had a very low I.Q., a learning disability,
and serious memory problems. He said a person with those issues is not likely to recall any
portion of the paragraph after thirty minutes.

Dr. DeClue testified the next portion of the GSS required that he ask the Petitioner a
series of questions, many of which were leading to determine whether he would yield to
subtle interpersonal pressure from the leading questions to tell the story that the doctor
wanted him to tell even if it did not match the story that he heard. The doctor said the
Petitioner’s lack of memory for details set him up to be suggestible. The Petitioner yielded
to the leading questions and gave a wrong answer more than twice as often as the average
person. Dr. DeClue then told the Petitioner that he made a number of errors and instructed
him to be more accurate. He explained he was testing whether the Petitioner would shift his
answers in response to the pressure. The Petitioner changed his answers three times, which
was as often as the average person. Dr. DeClue said that the Petitioner’s total score was
thirteen and that the average score was seven and one-half. The score revealed the Petitioner
was significantly above average in the amount of suggestibility that he showed. The doctor
explained, “So he’s–particularly if he doesn’t know the answer and you ask the question in
a way that–he’ll try to answer it the way the person wants to hear it.”

Dr. DeClue noted the Petitioner’s reading skills, oral language skills, and memory
skills were very low. He said that as a result, it was “very unlikely that he would be able to
understand and appreciate any detailed communication without special accommodations, and
it would decrease his ability to understand and appreciate the Miranda warnings.” Dr.
DeClue stated the Petitioner cannot read the Miranda form unless the form is simple. He
believed that the Petitioner would not be able to understand the rights when presented orally
because his listening skills were only slightly better than his reading skills. He stated the
Petitioner’s suggestibility would make him more vulnerable to police pressure than the
average person.

Dr. DeClue also assessed whether the Petitioner’s waiver of his Miranda rights was
knowing, intelligent, and voluntary. He noted that in this case, there was no clear direct
record showing the Petitioner understood his Miranda rights because the interrogation was
not recorded. He also noted that the Petitioner’s ability to read was at a third grade level and
that his ability to understand what he was told was at a fourth grade level. Dr. DeClue
reviewed the transcript of the officer’s testimony regarding the interrogation and the Miranda
form that the Petitioner initialed. He determined that the form was presented at a reading
level grade of 8.4 and that one portion of the form was at a 12.0 grade reading level. Dr.
DeClue testified that as a result, the Petitioner was able to read some of the words but was
unable to understand them. Reading the form to the Petitioner only made it slightly easier
for him to understand. Dr. DeClue said the police officers did not employ a procedure to

-44-
show that the Petitioner understood his rights. He explained that to determine whether the
Petitioner understood his rights, the officers would need to instruct the Petitioner to explain
those rights in his own words.

Dr. DeClue also determined whether the Petitioner’s statement to the police was
voluntary. He noted that the Petitioner did not go to the police and confess but that the police
went to him. The Petitioner initially denied any involvement in the victim’s death. The
doctor said the Petitioner changed his statement in response to questioning and pressure by
the police. He acknowledged that because the interrogation was not recorded, there was no
accurate and thorough record of how the police officers persuaded the Petitioner to change
his statement. Dr. DeClue said that while he believed the Petitioner’s statement took two to
three hours to record, he could not offer such an opinion to a reasonable degree of certainty.
The Petitioner informed Dr. DeClue that the process of taking his written statement did not
involve a detective asking questions, the Petitioner answering them, and someone typing the
questions and answers. Rather, the Petitioner maintained that he and the officer were
involved in a continuous conversation and that only a portion of the conversation was typed.

Dr. DeClue testified that during the walkthrough of the crime scene, the officers did
not allow the Petitioner to lead them. Rather, when the Petitioner pointed in one direction
in response to a question of where the stabbing occurred, the officer immediately pointed in
a different direction. Dr. DeClue noted the officer supposedly knew where the victim’s
remains were discovered. He further noted that the Petitioner appeared to be unsure and that
the officer led him in the direction in which the officer had pointed. He said the officers then
presented the location to the Petitioner as if he discovered it, which the doctor believed to be
coercive.

Dr. DeClue also considered the reliability of the Petitioner’s statement. He testified
that because the victim’s remains had been discovered at the time the Petitioner was
interviewed, the officers had evidence regarding the location of the victim’s body and the
condition of the body and possibly some evidence regarding the victim’s cause of death. The
doctor noted the Petitioner did not reveal any details of the crime scene during the
walkthrough that were not told to him by the officers. The Petitioner told the doctor that the
officer informed him that Mr. Evans said the killing occurred “in a particular nonbuilding
area.” The Petitioner maintained the officers told him during the course of the interrogation
who the victim was and where she had been found. Dr. DeClue said that while the Petitioner
identified where the co-defendant entered the area and where certain events occurred,
“[n]one of that really actually nails down the known facts.” For example, the Petitioner did
not produce the murder weapon. The doctor said the Petitioner walked around in the woods,
pointed in different directions, and discussed matters that did not “particularly nail down”
any independently verified evidence.

-45-
 Dr. DeClue said there was no evidence that the Petitioner spontaneously confessed
to any involvement in the offense. He acknowledged he did not have full knowledge of the
events leading the Petitioner to make incriminating statements because the interrogation was
not recorded. He understood that the police informed the Petitioner that the victim was
sexually assaulted and that either his DNA had been found or would be tested. The doctor
said his understanding of the police officers’ testimony was that the Petitioner then informed
them of his sexual activity with the victim in the kitchen which would have been considered
voluntary but for her age.

Dr. DeClue noted a reliable method to obtain a confession is to withhold details of the
crime from the suspect so that if the suspect subsequently confesses, he can show guilty
knowledge by providing details that had not been shared with him by the police. The
officers, however, shared with the Petitioner details about the location of the killing, the
identity of the victim, and her cause of death. The Petitioner informed the doctor that the
officers read Mr. Evans’ statement to him. Dr. DeClue said he did not know how many
details the officers told the Petitioner or means by which the details were shared. He did not
find evidence of additional details that the Petitioner provided to the police demonstrating
guilty knowledge. Dr. DeClue explained the Petitioner contradicted himself in his statement,
changed his story, and never produced a statement accounting for the crime scene evidence
that made sense. Although the Petitioner said the victim was stabbed in the head, he did not
describe in detail the injuries illustrated in the autopsy report. He further noted that in his
statement, the Petitioner said the co-defendant stabbed the victim in the head, neck, and
chest, but that during the walkthrough, he only stated the co-defendant stabbed the victim in
the head.

Dr. DeClue summarized his opinions as follows: The Petitioner initially denied any
involvement in the victim’s death. Under continuing pressure from the police “throughout
the wee hours of the morning,” the Petitioner gave contradictory statements. After “so called
waiving rights that he could not understand,” the Petitioner signed a statement that he could
not read. He eventually participated in a videotaped walkthrough of the crime scene that did
not lead to real tangible proof of guilt, such as finding a murder weapon or other physical
evidence or taking the police to the exact spot where the victim’s remains were discovered.
During the walkthrough, the Petitioner did not detail wounds that matched those described
in the autopsy report.

On cross-examination, Dr. DeClue testified he interviewed the Petitioner for two and
one-half hours the day before he testified at the post-conviction hearing. The interview
process consisted of an introduction and a discussion of the circumstances and the testing
procedures. The doctor then questioned the Petitioner about the facts and tested him. Dr.
DeClue estimated that the testing took approximately 80% of the time and that the

-46-
introduction and interview took approximately 20% of the time. He said that while the
Petitioner never told him that he killed the victim, he had informed the Petitioner that he was
not assessing his guilt or innocence.

Dr. DeClue acknowledged that in the Petitioner’s written statement, he denied killing
the victim and said the co-defendant killed her. The Petitioner said the co-defendant killed
the victim because he did not like how the Petitioner’s wife had been treating the Petitioner.
Dr. DeClue was also aware that the co-defendant gave a statement of admission.

Dr. DeClue testified that while the Petitioner told the police that he understood his
Miranda rights, he did not believe the Petitioner did so. Rather, he believed the Petitioner
showed significant deficits in his understanding of the rights. The doctor said that while he
asked the Petitioner about his drug use, he did not focus on it “very much.”

Dr. DeClue said that while the fact that he was determining the Petitioner’s
understanding of his Miranda rights ten years ago was a disadvantage, he did not believe it
to be a tremendous disadvantage. He explained that forensic psychologists routinely examine
past events in attempting to reconstruct a defendant’s mental state. He also said the lack of
a recording and not the passage of time made reconstruction in this case more difficult.

POST-CONVICTION COURT’S FINDINGS

Following the evidentiary hearing, the post-conviction court entered an order denying
the Petitioner relief regarding both the guilt and penalty phases of the trial. The court
rejected the Petitioner’s claim that trial counsel were ineffective in failing to challenge the
testimony of the forensic pathologist regarding the probability that the victim suffered
bruising or injury to her vagina. The court noted evidence was presented at trial that there
was no tissue left in the victim’s pelvic region and that her underwear was found around her
ankles. The Petitioner told officers that he saw the victim pull her underwear down when
confronted by Mario and believed she did so because she probably thought that she would
be raped. The court stated that when the Petitioner was asked for a DNA sample, he
volunteered that he had consensual sex with the victim, even though another witness who
was present during the time frame, refuted the Petitioner’s statement. The court concluded
the allegation failed for lack of a showing of prejudice.

The court rejected each of the Petitioner’s claims regarding trial counsel failure to
retain and present testimony from additional expert witnesses. The court reviewed evidence
presented during the post-conviction hearing regarding the difficulties that trial counsel
experienced in persuading the trial court to approve funds for expert assistance. The court
observed that “[i]t is evident from [Lead Counsel’s] testimony that he clearly knew what he

-47-
was doing, had been in this position several times before in capital trials, and had obtained
everything he needed as soon as practicable.” The post-conviction court found Lead Counsel
would not have been able to establish particularized need at that time to obtain the funds for
the additional experts. Dr. Angelillo did not recommend that the Petitioner be further
examined by a neuropsychologist or an addiction specialist, and trial counsel had no reason
to request funding for these experts. The Petitioner had no history of head injury, strokes,
or seizures.

The court found that Dr. Angelillo “did an excellent job of describing the medical and
psychological condition of the Petitioner during both the guilt and sentencing phase of his
trial, and getting those facts before the jury for their consideration.” The post-conviction
court also found the testimonies of Dr. Auble and Dr. Murray Smith did not add “much, if
anything,” to the basic facts surrounding the Petitioner’s drug use and low I.Q. According
to the court, although Dr. Auble conducted additional testing, “everything mitigating about
the Petitioner’s mental condition, mental processing and IQ at the time of the offense and the
trial had essentially already been offered at trial by Dr. Angelillo.” The court described Dr.
Auble’s report and testimony as “largely technical” and said that the majority of Dr. Auble’s
report related to the Petitioner’s social history and the results of tests that would have been
obscure to the average juror. With regard to Dr. Auble’s testimony, the post-conviction court
also stated:

As this court was listening to her testimony, with all due respect to Dr. Auble
and her legitimate expertise, it was struck with how tedious and impersonal
this testimony would feel to the average juror. It is not “compelling”
mitigation. Dr. Angelillo’s testimony, even when only read from the cold,
printed page, seemed much more mitigating and more directly related to the
character, situation and plight of the Petitioner, seemingly much more effective
in helping the jury to find “any aspect of the Petitioner’s character or record,
or any aspect of the circumstances of the offense favorable to the Petitioner
which is supported by the evidence.” T.P.I.–Crim. 7.04(b) (the “catchall”
mitigating circumstance).

While acknowledging that Dr. Auble concluded that the Petitioner had memory deficits, the
court stated such deficits “would not readily adapt itself, in the thought processes of the
average juror, into an explanation of why a 35 year old man would lure his 13 year-old step-
daughter into the woods so that she could be raped, killed and her body left to decompose.”

The court found that while Dr. Auble testified to other factors, these factors were not
mitigating. No other witness testified that the Petitioner was exposed to any violence by his
father. Moreover, no other witnesses testified to the Petitioner’s claims to Dr. Auble that his

-48-
father cut up clothing or purses and threatened people with unloaded guns. The court further
found that the mitigating evidence that was available but not presented was “slight” and
“hardly mitigating.” Acknowledging that the Tennessee Supreme Court held that
consideration of the prior violent felony aggravating circumstance in Tennessee Code
Annotated section 39-13-204(i)(2) was improper, the post-conviction court concluded that
the other two aggravating circumstances were so strong as to outweigh any additional
mitigating evidence. The court observed that some of the evidence in Dr. Auble’s report
regarding the substance abuse and the Petitioner’s prior violence against women would have
had a negative effect on his case.

The post-conviction court rejected the Petitioner’s claim that trial counsel were
ineffective in failing to investigate whether his statements to the police were influenced by
crack cocaine withdrawal, threats, lack of sleep, neurological problems, or coercion. The
court noted Dr. Murray Smith’s testimony was based upon the assumption that the Petitioner
was using drugs at the time, was sleep deprived, and was under the influence. There was no
independent proof that the Petitioner was sleep-deprived or used drugs that day. The court
found that Dr. Smith’s testimony would have been admissible only in the penalty phase of
the trial and that no proof that would have been admissible at the suppression hearing was
presented indicating that crack cocaine withdrawal, threats, lack of sleep, neurological
problems, or coercion influenced the Petitioner’s statements to the police. The Petitioner did
not testify at the suppression hearing, the trial, or his post-conviction hearings regarding any
heavy drug use or sleep deprivation. The Petitioner never mentioned drug or alcohol use in
his statements to the police. The court observed that the opinions of Dr. Auble, Dr. Smith,
and Dr. DeClue were based upon their interviews with the Petitioner, “given for purposes of
litigation years after the suppression hearing and trial, but shortly before their testimony at
the hearing.” The post-conviction court concluded that trial counsel were not deficient in this
regard and that any deficiency did not result in prejudice.

With regard to Dr. DeClue, the post-conviction court observed that because the waiver
of the Petitioner’s rights and his written statement were not audio or video recorded, the
doctor could not opine whether the Petitioner understood his rights and gave a valid waiver
of those rights. He also could not opine whether the contents of the Petitioner’s statement
were the result of suggestion by the police. The court noted Dr. DeClue never opined that
the Petitioner’s written and videotaped walkthrough were false. Rather, he could only testify
that due to the lack of a recording of the written statement and waiver of rights, he could
never rule out that they were false. The court also noted that Dr. DeClue never asked the
Petitioner whether the confessions were false and took steps to ensure that the Petitioner
never volunteered such information. The post-conviction court found it unusual that Dr.
DeClue admitted that in attempting to determine the Petitioner’s mental state during the time
of the confessions, he never asked the Petitioner whether he ever used drugs, let alone during

-49-
the time of the offense or around the time in which he made the statements to police. The
court observed “[i]t seems this would be something an examiner would want to know in
deciding whether or not rights were understood and voluntarily waived.” The court noted
Officer Clark’s testimony at trial that the Petitioner was read his rights, understood his rights,
and voluntarily waived them.

The post-conviction court also watched the “walk-through” video and stated,
it was immediately obvious to this court and would have been to any juror
watching it, even after hearing Dr. DeClue’s testimony about false confessions,
that the comments made by the Petitioner on the video were voluntary and not
made because suggested by Sgt. Fitzpatrick. He constantly corrected the
officer, disagreed with him (“No, we went through here.” “Not that I know of.
No, sir.”), answered questions in the negative (“Was she wearing a radio head
set at the time?” “No.”), pointing out landmarks without being asked, after
several seconds of walking without speech (“Mario met us down here.” “All
three of us stopped right here.”) and was very alert and cooperative. He
displayed no memory problems, and volunteered much detail without being
asked (“I remember I went down this valley behind this trench” (pointing)).

The post-conviction court rejected the Petitioner’s claim that trial counsel failed to
present a case for life during the penalty phase of the trial. The court noted that Mr. Folson
disagreed with post-conviction counsel during much of the direct examination or stated that
he had no knowledge. Mr. Folson recalled little and had to be prompted and examined
through leading questions. The post-conviction court found Mr. Folson’s testimony was not
mitigating and painted a picture of the Petitioner as a child who was constantly getting
intoxicated and skipping school. The court further found that because Mr. Folson was sent
to prison several years prior to the victim’s murder, he could not testify regarding the events,
character, and actions of the Petitioner at the time of the murder. The post-conviction court
also rejected the Petitioner’s claim that trial counsel were ineffective in failing to present Mr.
Legler as a witness, finding that Mr. Legler’s testimony was not mitigating.

The post-conviction court found trial counsel were not ineffective in failing to present
the testimony of Brandy and Monica Downey. The court characterized Brandy’s testimony
as a “struggle” and noted that when asked repeated leading questions, Brandy often disagreed
with post-conviction counsel who was attempting to lead her into favorable testimony for the
Petitioner. The post-conviction court found the testimonies of Brandy and Monica would not
have been helpful to the Petitioner in the guilt or penalty phases of the trial and would have
strengthened the Petitioner’s connection with the victim as the last person to see her alive.

The post-conviction court examined Joyce Rice’s testimony at the post-conviction

-50-
hearing and found that the same testimony regarding the Petitioner’s family and their deaths
was presented during his trial. The court noted Joyce’s testimony that her father beat her
with an extension cord and slapped Pam would have been inadmissible as it was not
mitigating evidence and was not relevant because the Petitioner did not witness the acts. The
court also noted Joyce’s testimony about the Petitioner’s drug use with his wife would not
have been mitigating.

The post-conviction court also examined the testimony of Mr. Tools and found that
much of his testimony would have been damaging to the Petitioner. The court further found
that the majority of the testimony that was not damaging was introduced at trial through other
witnesses. According to the court, “[d]espite the best efforts of the Petitioner’s post-
conviction counsel, they also failed to ‘humanize’ the Petitioner by presenting detailed
evidence of his background and the life he had led prior to the crimes.”

ANALYSIS

The Petitioner maintains trial counsel were ineffective in both the penalty and guilt
phases of the trial. The Petitioner’s post-conviction petition is governed by the Post-
Conviction Procedure Act. See T.C.A.. §§ 40-30-101 to -122. To obtain post-conviction
relief, the Petitioner must show that his conviction or sentence is void or voidable because
of the abridgement of a constitutional right. See T.C.A. § 40-30-103. The Petitioner must
establish the factual allegations contained in his petition by clear and convincing evidence.
See T.C.A. § 40-30-110(2)(f).

Once the post-conviction court has ruled upon a petition, its findings of fact are
conclusive on appeal unless the evidence in the record preponderates against them. Wallace
v. State, 121 S.W.3d 652, 656 (Tenn. 2003); State v. Nichols, 90 S.W.3d 576, 586 (Tenn.
2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). This Court could not may
reweigh or reevaluate the evidence or substitute its inference for those drawn by the
post-conviction court. Nichols, 90 S.W.3d at 586. Questions concerning the credibility of
witnesses and the weight to be given their testimony are for resolution by the post-conviction
court. Id. (citing Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997)). It is, therefore, the
burden of the Petitioner to show that the evidence preponderated against those findings.
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

Notwithstanding, determinations of whether counsel provided a defendant
constitutionally deficient assistance present mixed questions of law and fact. Wallace, 121
S.W.3d at 656; Nichols, 90 S.W.3d at 586. As such, the findings of fact are reviewed under
a de novo standard, accompanied with a presumption that those findings are correct unless
the preponderance of the evidence is otherwise. See Fields v. State, 40 S.W.3d 450, 458

-51-
(Tenn. 2001) (citations omitted). In clarifying the standard, our supreme court explained that
the standard for reviewing the factual findings of a trial court has always been in accordance
with the requirements of the Tennessee Rules of Appellate Procedure, specifically Rule
13(d). Fields, 40 S.W.3d at 456.

In pertinent part, the Sixth Amendment provides, “In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S.
Const. amend. VI. This right to counsel is “‘so fundamental and essential to a fair trial, and
so, to due process of law, that it is made obligatory upon the States by the Fourteenth
Amendment.’” Gideon v. Wainwright, 372 U.S. 335, 340 (1963) (quoting Betts v. Brady, 316
U.S. 455, 465 (1942)). Inherent in the right to counsel is the right to the effective assistance
of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced
a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984).

The United States Supreme Court adopted a two-prong test to evaluate a claim of
ineffectiveness:

First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687. The performance prong of the Strickland test requires a showing
that counsel’s representation fell below an objective standard of reasonableness, or “outside
the wide range of professionally competent assistance.” Id. at 690. “Judicial scrutiny of
performance is highly deferential, and ‘[a] fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.’” Combs v. Coyle, 205 F.3d 269, 278 (6 th Cir. 2000) (quoting
Strickland, 466 U.S. at 689).

Upon reviewing claims of ineffective assistance of counsel, the court “must indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland,
466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Additionally, courts

-52-
should defer to trial strategy or tactical choices if they are informed ones based upon
adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Finally, we note that
criminal defendants are “not entitled to perfect representation, only constitutionally adequate
representation.” Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other
words, “in considering claims of ineffective assistance of counsel, ‘[w]e address not what
is prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp, 483
U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 655 n.38 (1984)).
Notwithstanding, we recognize that “[o]ur duty to search for constitutional error with
painstaking care is never more exacting than it is in a capital case.” Id. at 785.

If the Petitioner shows that counsel’s representation fell below a reasonable standard,
then he must satisfy the prejudice prong of the Strickland test by demonstrating “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. The reasonable
probability standard “requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different
result. Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011). In evaluating whether a Petitioner
satisfied the prejudice prong, a court must ask “whether counsel’s deficient performance
renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart
v. Fretwell, 506 U.S. 364, 372 (1993) (citing Strickland, 466 U.S. at 687). In other words,
“a Petitioner must establish that the deficiency of counsel was of such a degree that it
deprived the [Petitioner] of a fair trial and called into question the reliability of the outcome.”
Nichols, 90 S.W.3d at 587. That is, “the evidence stemming from the failure to prepare a
sound defense or [to] present witnesses must be significant, but it does not necessarily follow
that the trial would have otherwise resulted in an acquittal.” State v. Zimmerman, 823
S.W.2d 220, 225 (Tenn. Crim. App. 1991). “A reasonable probability of being found guilty
of a lesser charge, or a shorter sentence, satisfies the second prong in Strickland.” Id.

I. GUILT PHASE

The Petitioner asserts trial counsel were ineffective in the guilt phase of the trial in
failing to (1) investigate the mental health issues related to his confession; (2) challenge the
forensic pathologist’s testimony regarding injury in the victim’s vaginal area; and (3) object
to certain jury instructions.

A. Failure to Investigate Mental Health Issues Related to Confession

The Petitioner argues that the evidence presented at the post-conviction hearing
establishes that trial counsel’s failure to investigate the mental health issues related to the
Petitioner’s confession violated his right to effective assistance of counsel. According to the

-53-
Petitioner, Dr. DeClue’s testimony, in conjunction with the testimonies of Dr. Auble and Dr.
Murray Smith, undermined the credibility of the Petitioner’s statement to the police. The
State contends that the evidence demonstrates that trial counsel were not deficient and that
any deficiency did not result in prejudice. We agree with the State.

We note that at the post-conviction hearing, the Petitioner argued that trial counsel
should have presented testimony of mental health experts both in a suppression hearing
challenging the statements and at trial. On appeal, however, the Petitioner only argues that
the evidence should have been presented at trial.

The post-conviction court found trial counsel would have been unable to show a
particularized need for additional mental health experts and an addiction specialist and that
as a result, the trial court would have denied any request for funding to retain these experts.
See State v. Barnett, 909 S.W.2d 423, 426-28 (Tenn. 1995). The Tennessee Supreme Court
has held that “while a State need not provide an indigent defendant with all the assistance his
wealthier counterpart might buy . . . fundamental fairness requires a State to provide an
indigent defendant with the ‘basic tools for an adequate defense on appeal.’” Id. at 426
(quoting Ake v. Oklahoma, 470 U.S. 68, 66 (1985)). The trial court’s obligation to afford
an indigent defendant with the benefit of expert assistance does not arise unless the defendant
makes a threshold showing of a “particularized need” for the expert assistance. See Tenn.
Sup. Ct. R. 13, § 5(c)(1); Barnett, 909 S.W.2d at 430-31. Particularized need is established:

When a defendant shows by reference to the particular facts and circumstances
that the requested services relate to a matter that, considering the inculpatory
evidence, is likely to be a significant issue in the defense at trial and that the
requested services are necessary to protect the defendant’s right to a fair trial.

Tenn. Sup. Ct. R. 13, § 5(c)(2).

Particularized need cannot be established and the trial court should deny requests for
funding when the motion for funding includes only:

(A) undeveloped or conclusory assertions that such services would be
beneficial;

(B) assertions establishing only the mere hope or suspicion that favorable
evidence may be obtained;

(C) information indicating that the requested services relate to factual
issues or matters within the province or understanding of the jury; or

-54-
 (D) information indicating that the requested services fall within the
capability and expertise of appointed counsel.

Id. at (c)(4). Unsupported assertions that an expert is necessary to counter proof offered by
the State is not sufficient to establish particularized need. Barnett, 909 S.W.2d at 431. The
defendant must reference facts and circumstances of the particular case and demonstrate that
the appointment of the expert is necessary to ensure a fair trial. Id. The issue of whether a
defendant has made the threshold showing is to be determined on a case-by-case basis. Id.

Trial counsel obtained approval from the trial court of funds to retain Dr. Angelillo,
a clinical psychologist, to evaluate the Petitioner. Dr. Angelillo concluded that the Petitioner
fell within the borderline range of intellectual functioning, had a dependent personality with
passive-aggressive personality traits, and was suffering from psychological pathology. In
reaching these conclusions, Dr. Angelillo reviewed the affidavit of complaint, the Petitioner’s
school records, his social and family history, his criminal background, his juvenile court
records, and a memorandum of the investigator’s interview with the Petitioner’s mother. Dr.
Angelillo administered tests and met with the Petitioner on five occasions for a total of five
and one-half hours, during which they discussed, among other things, the different versions
of the events that the Petitioner had provided to others, including his insistence of innocence.
Dr. Angelillo produced a detailed report of his findings which did not include any
recommendation of additional testing by other mental health professionals.

Throughout the Petitioner’s brief, he maintains there were “red flags,” such as his
borderline I.Q., history of alcohol and drug abuse, and pattern of problems with impulse
control, establishing that testing and evaluations by other mental health professional or
addiction specialists were necessary. Dr. Angelillo, however, considered these factors in his
evaluation and did not view these factors as “red flags” that necessitated additional testing
and evaluations by other mental health professionals. Trial counsel was “not required to
question a diagnosis put forth by a professional expert in the field” and cannot be faulted for
relying upon an expert’s assessment of the Petitioner. Christa Gail Pike v. State, No. E2009-
00016-CCA-R3-PD, 2011 WL 1544207, at *54 (Tenn. Crim. App., at Knoxville, Apr. 25,
2011), perm. app. denied (Tenn. Nov. 15, 2011). All of the facts and circumstances
demonstrate that any funding for additional mental health professionals would have been
sought in the mere “hope or suspicion” that favorable evidence could be obtained from an
evaluation. Such “hope of suspicion” does not constitute particularized need.

Moreover, the post-conviction court found that had Dr. DeClue been called as a
witness in the guilt phase of the trial, his testimony would not have raised any reasonable
doubt in the minds of the jurors. The Petitioner asserts that the determination of the post-
conviction court regarding Dr. DeClue’s testimony “was one of admissibility only.”

-55-
According to the Petitioner, once the post-conviction court served its “gatekeeping” function
regarding Dr. DeClue’s expert opinion, the court usurped the role of the jury in determining
the weight of his testimony.

In post-conviction proceedings, the post-conviction court serves as the finder of fact.
See T.C.A. § 40-30-105(b), -110, -111(b). The post-conviction court must assess the impact
of evidence presented at the post-conviction hearing had it been presented at trial. See
Strickland, 466 U.S. at 694-95. In making this assessment, the post-conviction court must
resolve questions concerning the credibility of the witnesses, the weight and value to be
given their testimony, and the factual issues raised by the evidence. See Henley, 960 S.W.2d
at 579. Accordingly, the post-conviction court was well within its authority in considering
the weight and credibility of Dr. DeClue’s testimony and finding that his testimony would
not have raised reasonable doubt in the jurors’ minds.

As noted by the post-conviction court, Dr. DeClue did not consider the prior testimony
of the officers who questioned the Petitioner but relied upon the Petitioner’s version of the
interrogation and the method by which his written statement was taken that he relayed to the
doctor years after the trial. Dr. DeClue did not question the Petitioner regarding any drug or
alcohol abuse or whether he was intoxicated at the time that he gave his statements to the
police. The post-conviction court noted that Dr. DeClue admitted difficulty in analyzing the
case because the Petitioner’s waiver of rights and initial statement to the police were not
audio or video recorded. The Petitioner contends that the lack of a recording should be
charged against the State. However, there is no state or federal constitutional right requiring
the recording of interrogations. State v. Rollins, 188 S.W.3d 553, 564-65 (Tenn. 2006); State
v. Godsey, 60 S.W.3d 759, 771 (Tenn. 2001).

The post-conviction court also found that the videotaped walkthrough of the crime
scene, during which the Petitioner volunteered information without being asked, identified
landmarks, disagreed with the officer, and appeared alert, contradicted Dr. DeClue’s
testimony about the coercive nature of the walkthrough. The evidence does not preponderate
against the post-conviction court’s extensive findings. The Petitioner is not entitled to relief
with regard to this issue.

B. Failure to Challenge the Forensic Pathologist’s Testimony

The Petitioner asserts that trial counsel were ineffective in failing to challenge the
testimony of the forensic pathologist at trial regarding injury to the victim’s vaginal area. He
further asserts that because trial counsel failed to challenge the forensic pathologist’s
testimony, the only explanation for the advanced decomposition of the victim’s vaginal area
that was presented at trial was that she had been raped by the Petitioner.

-56-
 At trial, Dr. Cynthia Gardner with the Shelby County Medical Examiner’s Office
testified that she did not find any wounds to the victim’s vaginal area and that due to
decomposition, minimal soft tissue remained in the area. She did not find any sharp trauma
on the bone in the area. Dr. Gardner said that because the decomposition in the vaginal area
was separate from the decomposition in other areas, “that does indicate to me that there was
probably some trauma there and, . . . it could be sharp trauma or it could be just bruising,
severe bruising. The Petitioner faults trial counsel for failing to obtain an independent
forensic pathologist, such as Dr. O.C. Smith, to rebut this testimony.

The post-conviction court rejected the Petitioner’s claim finding that any deficiency
did not result in prejudice. The Petitioner maintains that the post-conviction court’s ruling
“is yet another example of the post-conviction court substituting its own judgment for that
of a properly qualified juror.” He contends that the post-conviction court “is not empowered
to choose between legitimate competing expert theories by excluding the lesser of the two.”
The post-conviction court, however, did not exclude the testimony of Dr. Smith based upon
its admissibility. Rather, the court considered Dr. Smith’s opinion and the weight to be
afforded to it based upon other evidence presented at trial. The court found there was no
reasonable probability that Dr. Smith’s testimony would have affected the jury’s finding of
rape. These findings are within the purview of the post-conviction court.

The post-conviction court’s findings are also supported by the record. Dr. Smith
could not rule out trauma as testified by Dr. Gardner. Rather, he said he believed Dr.
Gardner overstated the possibility of trauma and offered an alternative explanation for the
differential decomposition of the victim’s vaginal area. Furthermore, the victim was found
in an advanced stage of decomposition with her underwear around her ankles. The Petitioner
told police that the victim pulled down her underwear before her death because she likely
believed she would be raped. When officers requested a DNA sample from the Petitioner,
he admitted to having sex with her at his home. The Petitioner’s stepfather, however, said
the victim never left his sight while in the home. Based upon the evidence submitted at trial,
including the Petitioner’s admission to having sex with the victim, we cannot conclude that
there was a reasonable probability that Dr. Smith’s testimony would have altered the jury’s
finding of rape.

C. Failure to Object to Jury Instructions

The Petitioner asserts that trial counsel were ineffective in failing to challenge jury
instructions (1) defining “intentionally” with respect to the “nature of the conduct” or a
“result of the conduct” and (2) providing that absolute certainty is not required to convict.
As the State notes, the Petitioner did not raise these issues in his initial or amended post-
conviction relief petitions, and the post-conviction court did not address the issues in its order

-57-
denying post-conviction relief. Therefore, these issues are waived. See T.C.A. § 40-30-
106(g) (a ground for post-conviction relief is waived “if the Petitioner personally or through
an attorney failed to present it for determination in any proceeding before a court of
competent jurisdiction in which the ground could have been presented”).

II. PENALTY PHASE

The Petitioner contends that trial counsel were ineffective with regard to the penalty
phase of the trial in failing to (1) retain a neuropsychological expert to evaluate him; (2)
present evidence of the Petitioner’s character and background in mitigation; and (3) object
to erroneous jury instructions.

The Tennessee Supreme Court has held that when challenging a death sentence in an
ineffective assistance of counsel claim, the Petitioner must show that “‘there is a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the balance
of the aggravating and mitigating circumstances did not warrant death.” Henley, 960 S.W.2d
at 579-80 (quoting Strickland, 466 U.S. at 695); see Goad v. State, 938 S.W.2d 363, 371
(Tenn. 1996). The Petitioner contends this standard for prejudice is no longer applicable.
According to the Petitioner, the United States Supreme Court in Wiggins v. Smith, 539 U.S.
510 (2003), set forth a new standard for prejudice in claims of ineffective assistance of
counsel in capital proceedings requiring “a reasonable probability that at least one juror
would have struck a different balance and voted for life had he or she heard the mitigating
evidence that was not presented at trial.” The Petitioner submits that the prejudice standard
used by the post-conviction court conflicts with the standard set forth in Wiggins and that the
post-conviction court’s order should be reversed as a result.

The Petitioner in Wiggins alleged his trial counsel were ineffective in his capital
sentencing hearing for failing to present mitigation evidence of his life history. Wiggins, 539
U.S. at 514. The United States Supreme Court concluded that trial counsel were deficient
in their investigation into the Petitioner’s background. Id. at 534. In examining prejudice,
the Court held that “had the jury been confronted with this considerable mitigating evidence,
there is a reasonable probability that it would have returned with a different sentence.” Id.
at 536. The Court held later in the opinion that “[h]ad the jury been able to place Petitioner’s
excruciating life history on the mitigating side of the scale, there is a reasonable probability
that at least one juror would have struck a different balance.” Id. at 537. The Court cited a
jury instruction in Maryland where the Petitioner was convicted that required the jury
unanimously find that the aggravating factors outweigh the mitigating factors. Id.

The opinion in Wiggins includes no language expressly overruling the standard of
prejudice in cases of ineffective assistance of counsel in capital sentencing hearings set forth

-58-
in Strickland and applied by Tennessee courts. Rather, the Court in Wiggins did apply the
standard of “reasonable probability that [the jury] would have returned a different sentence”
as set forth in Strickland. See Wiggins, 539 U.S. 536; Strickland, 466 U.S. at 695. Because
Maryland required an unanimous verdict, if there is a reasonable probability one juror would
have concluded that the aggravating circumstances did not outweigh the mitigating
circumstances, there is also a reasonable probability that the jury would have returned a
different sentence. Thus, when the Court in Wiggins also held that there was a reasonable
probability that “at least one juror would have struck a different balance,” the Court was not
applying a new standard but was simply restating the same standard that it had applied earlier
in its opinion in Wiggins, as well as in Strickland, in a different way. Moreover, the United
States Supreme Court has recently reiterated the standard set forth in Strickland. See Cullen
v. Pinholster, 131 S. Ct. 1388, 1408 (2011).

Accordingly, we reject the Petitioner’s contention that the post-conviction court
applied a wrong standard in determining prejudice with regard to his claims of ineffective
assistance of counsel during the penalty phase of the trial. Rather, the post-conviction court
correctly considered whatever the Petitioner had shown that “‘there is a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the balance
of the aggravating and mitigating circumstances did not warrant death.” Henley, 960 S.W.2d
at 579-80 (quoting Strickland, 466 U.S. at 695).

A. Failure to Retain a Neuropsychological Expert

The Petitioner argues that “significant red flags” prompting neurological testing were
present and that trial counsel were ineffective in failing to retain a neuropsychological expert
to evaluate him. He asserts that had trial counsel retained a neurological expert, mitigating
evidence of brain damage could have been presented and that a reasonable probability exists
that the jury would not have imposed a sentence of death.

Counsel does not have a constitutional duty to present mitigation evidence at the
penalty phase of a capital trial but does have a duty to investigate and prepare for both the
guilt and penalty phases. See Goad, 938 S.W.2d at 369. Counsel does not have an absolute
duty to investigate particular facts or a certain line of defense; however, counsel does have
a duty to make a reasonable investigation or to make a reasonable decision that makes a
particular investigation unnecessary. Strickland, 466 U.S. at 691. In determining whether
counsel breached this duty, this Court reviews counsel’s performance for reasonableness
under prevailing professional norms, which includes a context-dependent consideration of
the challenged conduct as viewed from counsel’s prospective at that time. Wiggins, 539 U.S.
at 523 (citations omitted).

-59-
 Counsel is not required to investigate every conceivable line of mitigation evidence
regardless of how unlikely the effort would be to assist the defendant at sentencing. Id. at
533. Likewise, counsel is not required to interview every conceivable witness. Hendricks
v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). This Court will not conclude that counsel’s
performance was deficient for failing to discover all mitigating evidence, if, after a
reasonable investigation, counsel has not been put on notice that such evidence exists. See
Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998) (citation omitted). In addition, the
United States Supreme Court has held that

no particular set of detail rules can satisfactorily take account of the variety of
circumstances faced by defense counsel. Rather, courts must judge the
reasonableness of counsel’s conduct on the facts of the particular case, viewed
as of the time of counsel’s conduct, and judicial scrutiny of counsel’s
performance must be highly deferential.

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (internal citations and quotations omitted).

We review the following factors in determining whether trial counsel were ineffective
in failing to present mitigating evidence: (1) the nature and extent of the mitigating evidence
that was available but not presented by trial counsel; (2) whether trial counsel presented
substantially similar mitigation evidence to the jury in either the guilt or penalty phase of the
proceedings; and (3) whether the evidence of applicable aggravating factors was so strong
that mitigating evidence would not have affected the jury’s determination. Goad, 938
S.W.2d at 371 (citations omitted).

As we have held above, the facts and circumstances did not establish particularized
need for additional mental health experts, including a neuropsychologist. The Petitioner
contends that trial counsel knew they needed a neuropsychologist but failed to retain one
because they did not have sufficient time before trial to do so. The proof, however, does not
support the Petitioner’s contention. Trial counsel were not experts in the mental health field.
While Lead Counsel identified a note that he had written in which he referred to a
neuropsychologist, he said he was merely “brainstorming” and considering mental health
professionals in different fields. This evidence does not demonstrate that Lead Counsel
knew the services of a neuropsychologist were necessary. Furthermore, Dr. Angelillo did not
recommend an evaluation by a neuropsychologist. Thus, even if trial counsel had additional
time to seek mental health experts, trial counsel would not have been able to establish
particularized need for such experts. The Petitioner has failed to present evidence sufficient
to demonstrate deficient performance by trial counsel.

B. Failure to Present Evidence of Character and Background

-60-
 The Petitioner claims that trial counsel failed to present mitigation evidence of his
character and background through expert and lay witnesses. The Petitioner faults trial
counsel for failing to present experts such as Dr. Auble and Dr. Murray Smith to testify
during the penalty phase. We have held that trial counsel were not ineffective in failing to
retain a neuropsychological expert, such as Dr. Auble. Likewise, we have held that trial
counsel would have been unable to establish particularized need for an addiction specialist,
such as Dr. Smith, and that the trial counsel likely would have denied any request for funds
to retain an addiction specialist.

Moreover, evidence of the Petitioner’s history of drug and alcohol abuse was
presented during the penalty phase through the testimony of Dr. Angelillo. As noted by the
post-conviction court, Dr. Smith’s testimony regarding the Petitioner’s statements to the
police were based upon the assumption that the Petitioner was under the influence of drugs
and alcohol at the time and was sleep deprived. The post-conviction court found no credible
independent proof to support the Petitioner’s claims. Rather, Dr. Smith, as well as the mental
health experts presented in the post-conviction hearing, relied upon the statements of the
Petitioner made years after trial in reaching their conclusions.

The Petitioner maintains trial counsel were ineffective in failing to present mitigating
evidence through lay witnesses. The Petitioner focuses upon the testimony of Andrew
Folson, Joyce Rice, James Tools, and Don Legler. At the post-conviction hearing, trial
counsel and Ms. Shettles testified at length regarding the reluctance of the Petitioner’s
relatives to testify on his behalf. Many of the Petitioner’s family members were angry at him
to implicating Mario Rice, his nephew, in the victim’s murder. Despite these challenges, trial
counsel were able to present mitigating evidence during the penalty phase of the trial that:
(1) the Petitioner’s sister, Pam, died of lupus in 1979 when the Petitioner was fourteen years
old; (2) his father died of cancer in 1985 when the Petitioner was twenty years old; (3) his
brother, Ricky, drowned in 1986 when the Petitioner was twenty-one years old; (4) his sister,
Carolyn, died of colon cancer in 2001; (5) the Petitioner performed poorly in school, repeated
the third and seventh grades, and left school in the eighth grade; (6) he witnessed a murder
when he was sixteen years old and testified for the State resulting in the convictions of the
two defendants; (7) he came from a close family; (8) his father argued with his mother daily,
and they later separated; (9) his father slapped Pam on one occasion; (9) Pam was confined
to a wheelchair; (10) the Petitioner had a low I.Q. that fell within the borderline range of
intellectual functioning; (11) he was unable to maintain employment for a long period of
time; (12) he had a history of alcohol and drug use, including marijuana and crack cocaine;
(13) he experimented with LSD; (14) he reported auditory and visual hallucinations; (15) he
had a prior suicide attempt; (16) he had no incidents of violence while in jail; and (17) his
behavior was good while in a structured environment such as prison.

-61-
 Ms. Shettles testified at the post-conviction hearing that the decision of the
Petitioner’s family members to cooperate was due to the passage of time. In determining
whether trial counsel were ineffective in failing to present the testimony of these witnesses,
every effort must be made “to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s conduct, and to evaluate the conduct from the perspective of
counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006). The fact that
Joyce Rice was more cooperative and forthcoming at the post-conviction hearing that during
the penalty phase does not render trial counsel deficient.

With respect to Mr. Tools, the Petitioner’s family informed Ms. Shettles prior to trial
that Mr. Tools had little contact with the Petitioner, his mother, and his siblings. Based upon
this information, trial counsel’s actions in focusing their investigation elsewhere was
reasonable. The post-conviction court also refused to accredit the testimony of Mr. Folson
noting that he disagreed with post-conviction counsel during much of the direct examination,
recalled little, and had to be prompted through leading questions. Mr. Folson admitted he
stopped spending time with the Petitioner in the 1980's and was incarcerated at the time of
the victim’s murder. The evidence does not preponderate against the findings of the post-
conviction court.

Even if trial counsel had performed deficiently, the deficiency did not result in
prejudice. At trial, the State relied upon and the jury found three aggravating circumstances
beyond a reasonable doubt: (1) the Petitioner had previously been convicted of a violent
felony offense; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder
was committed during the perpetration of a rape. See T.C.A. § 39-13-204(i)(2), (5), (7)
(1997). On direct appeal, the Tennessee Supreme Court found that the reliance upon the
prior violent felony aggravating circumstance was error but that the error was harmless
beyond a reasonable doubt due to the strength of the evidence supporting the remaining two
aggravating circumstances. Rice, 184 S.W.3d at 677-78. The Court described the evidence
of the two remaining aggravating circumstances as “overwhelming.” Id. at 678. We agree.
The evidence presented at trial supporting these aggravating circumstances established that
the thirteen-year-old victim was stabbed a total of sixteen times, including areas of her neck,
head, and chest. She suffered defensive wounds and was left in the woods to die. Her shorts
and underwear were around her ankles. The Petitioner admitted to having sexual intercourse
with the victim. He maintained it was “consensual” and occurred earlier that day at his
stepfather’s house. The Petitioner’s stepfather rebutted the claim that the Petitioner and the
victim engaged in sexual activity in his home.

While the Petitioner asserts that evidence presented at the post-conviction hearing
from various expert and lay witnesses was mitigating and that trial counsel’s failure to
present such evidence during the penalty phase was prejudicial, we disagree. The post-

-62-
conviction court described Dr. Auble’s testimony as “tedious and impersonal.” Dr. Angelillo
had offered similar testimony at trial regarding the Petitioner’s drug use, social history, and
low I.Q. As found by the post-conviction court, Dr. Auble’s testimony regarding the
Petitioner’s acts of violence against women would have had a negative impact in the penalty
phase after the jury had just convicted the Petitioner of the violent murder of a thirteen-year-
old girl. This evidence was not “clearly mitigating” as the jury could have concluded that
the Petitioner was “simply beyond rehabilitation.” See Cullen, 131 S.Ct. at 1410 (holding
that evidence regarding serious substance abuse, mental illness, and criminal problems was
not “clearly mitigating” because the jury might have concluded that the defendant was
beyond rehabilitation); see also Atkins v. Virginia, 536 U.S. 304, 321 (2002) (noting that
mitigating evidence can be a “two-edged sword” that juries might find to show future
dangerousness).

While Dr. Auble concluded the Petitioner had cognitive disorder not otherwise
specified and memory deficits, much of the information upon which Dr. Auble relied such
as the Petitioner's social history, alcohol and drug abuse, background, low I.Q., and inability
to maintain employment were presented to the jury through the testimony of Dr. Angelillo.
Even though Dr. Auble administered additional tests to the Petitioner, we cannot conclude
Dr. Auble’s testimony would have affected the jury’s determination due to the strong
evidence supporting the applicable aggravating factors. See Goad, 938 S.W.2d at 371.

As noted by the post-conviction court, Dr. Murray Smith’s testimony regarding the
Petitioner's statements to the police were based upon the assumption that the Petitioner was
under the influence of drugs and alcohol at the time and was sleep deprived. The
post-conviction court found no credible independent proof to support the Petitioner’s claims.
Rather, Dr. Smith, as well as the mental health experts presented in the post-conviction
hearing, relied upon the statements of the Petitioner made years after trial in reaching their
conclusions.

The Petitioner’s statements to Dr. Smith and other experts presented at the
post-conviction hearing and Dr. Smith’s resulting conclusions regarding the Petitioner’s
condition when he was interrogated by the police were not consistent with the evidence
presented at trial. Contrary to the Petitioner’s claims of sleep deprivation, Officer Clark
testified at trial that the Petitioner had been sleeping prior to being questioned. The
Petitioner was offered food, a drink, and the opportunity to use the restroom. Officer Clark
said the Petitioner appeared coherent and alert and did not appear to be intoxicated. Sergeant
Fitzpatrick also testified the Petitioner appeared to understand his questions, was responsive
to those questions, and never indicated that he was under the influence of drugs or alcohol.
Finally, the post-conviction court found that the video of the walkthrough of the crime scene
demonstrated that the Petitioner was alert and cooperative, displayed no memory problems,

-63-
volunteered details without being asked, and gave responses that were not the result of
suggestions by the officers. The evidence does not preponderate against the findings of the
post-conviction court.

Moreover, the testimony of Joyce, Mr. Folson, Mr. Tools, and Mr. Leagler at the post-
conviction hearing were largely cumulative to the evidence presented during the penalty
phase of the trial. Accordingly, based upon the mitigating evidence presented and the strong
evidence supporting the aggravating circumstances, the Petitioner has failed to show a
“reasonable probability” or a “substantial” likelihood that the presentation of the additional
evidence would have resulted in a different sentence. See Cullen, 131 S.Ct. at 1403 (defining
“reasonable probability as a ‘substantial,’ not just ‘conceivable,’ likelihood of a different
result”).

C. Failure to Object to Jury Instructions

The Petitioner contends trial counsel were ineffective in failing to object to a jury
instruction that did not require a finding that the petitioner intended to inflict serious physical
abuse in support of the heinous, atrocious, or cruel aggravating circumstance. The Petitioner
did not raise the issue in his initial or amended post-conviction petitions, and the post-
conviction court did not address the issue in its order denying relief. Accordingly, this issue
is waived. See T.C.A. § 40-30-106(g).

III. CUMULATIVE ERROR

The Petitioner asserts trial counsel’s performance were constitutionally deficient based
upon the cumulative effect of the errors. We conclude the Petitioner’s counsel were not
ineffective based upon any single alleged error or the cumulative effect thereof. The
Petitioner is not entitled to relief on this issue.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the post-conviction court.

______________________________
CAMILLE R. McMULLEN, JUDGE

-64-