IN THE TENNESSEE COURT OF CRIMINAL APPEALS
AT JACKSON
MARCH 1999 SESSION
FILED
December 8, 1999
Cecil Crowson, Jr.
VICTOR JAMES CAZES, ) Appellate Court Clerk
) No. W1998-
00386-CCA-R3-PC
Petitioner, )
) Shelby County
VS. )
) Honorable Chris Craft
STATE OF TENNESSEE, )
) (Post-conviction: underlying offenses- first
Respondent. ) degree felony murder, aggravated rape,
) first degree burglary)
For the Petitioner: For the Respondent:
Brock Mehler John Knox Walkup
751 Roycroft Place Attorney General and Reporter
Nashville, TN 37203
Michael E. Moore
Solicitor General
William D. Massey and
3074 East Street Jennifer L. Smith
Memphis, TN 38128 Assistant Attorney General
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
and
John Campbell
Assistant District Attorney General
201 Poplar Avenue - Third Floor
Memphis, TN 38103-1947
OPINION FILED:__________________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Victor James Cazes, appeals as of right from the order of
the Shelby County Criminal Court denying him post-conviction relief from his 1990
convictions for felony murder, aggravated rape and first degree burglary. The petitioner
was sentenced to death for the murder conviction and received twenty-five-year and
six-year sentences, respectively, for the aggravated rape and burglary convictions. The
judgments of conviction were affirmed on direct appeal. State v. Cazes, 875 S.W.2d
253 (Tenn. 1994). In this post-conviction appeal, the petitioner raises the following
issues:
(1) whether the trial judge at the evidentiary hearing should
have recused himself and reassigned the petition to another
division of the trial court;
(2) whether the petitioner was denied the effective assistance
of counsel;
(3) whether the petitioner was denied his right to an impartial
jury;
(4) whether the use of the petitioner’s felony convictions as an
aggravating circumstance violated the principles of due
process and ex post facto;
(5) whether the state withheld exculpatory information;
(6) whether the reasonable doubt jury instructions were
constitutional;
(7) whether the cumulative effect of the foregoing errors
deprived the petitioner of a fair trial and due process;
(8) whether a harmless error analysis relative to invalid
aggravating circumstances is constitutional; and
(9) whether the trial court erred by not conducting an in camera
review of the prosecutor’s files.
We affirm the trial court’s denial of the post-conviction petition.
The facts surrounding the crimes in this case are described by the
Tennessee Supreme Court in its opinion on direct appeal as follows:
The State’s proof introduced at the guilt phase of trial
demonstrated that on Sunday morning, April 24, 1988, the
body of Gladys Skinner, an older woman who lived alone, was
found in her home in the Frayser area of Memphis. She had
last been seen alive late Saturday night by Ben Harris, a friend
who brought her home from a card game. After checking Ms.
Skinner’s house to make sure everything was “safe and
secure,” Harris left around 12:10 a.m.
The next morning, because her telephone was busy
each time they called, Gladys Skinner’s daughter and
grandson went to her house to check on her. When they
arrived, they noticed that a front window screen had been
removed, that the window was broken, that blood was on the
window blinds, and that the doors to the house were locked.
The grandson and a neighbor entered the house through the
2
front window and found Gladys Skinner’s body lying beneath
some bedcovers on the bedroom floor, between the bed and
the wall. The wall next to the bed was spattered with blood as
were several pictures from the wall that lay broken on the floor.
Blood also stained the floor and the fitted sheet on the bed.
While the bedroom had been ransacked, nothing of value was
missing from the house.
Gladys Skinner’s nude body was lying face down, her
knees underneath her with her buttocks “jacked up off the
floor” and her legs spread apart. Scrape marks were found on
her inner legs and vagina. Her right breast had been bitten
and her left breast was scraped. Dilation of the vagina and
rectum demonstrated penetration at or after the time of death;
however, no sperm were found. Numerous marks and bruises
were found on her body, including defensive wounds to her
arms and hands, and a large bruise on her back that the proof
indicated could have been caused by a fist.
The Shelby County medical examiner testified that the
victim’s death was caused by skull injuries that were inflicted
by multiple blows to the head with a blunt instrument, like a
welder’s chipping hammer. According to the medical examiner
and a forensic anthropologist who examined the skull, the
number of blows had ranged from eight to fifteen and the skull
had been “virtually shattered” by the force of the blows. Their
proof showed that one or more of these injuries would have
caused death within minutes to an hour, but the victim would
not necessarily have lost consciousness immediately. A
forensic serologist’s testimony indicated that the assault may
have continued for some time. The serologist testified that
some blows may have been struck after the blood from some
of the wounds had begun clotting, and that it takes three to
fifteen minutes for blood to clot outside the body.
At the time of the murder, the defendant, Victor Cazes,
a welder, worked sporadically as a handyman at an automotive
repair garage owned by Michael Lucas, Gladys Skinner’s step-
grandchild. Before the murder, Cazes had been to Gladys
Skinner’s house two to three times to work on her car. On
Saturday night, April 23, 1988, Cazes attended a birthday
cookout at Lucas’s home, which was a few blocks from
Skinner’s house. He left the gathering alone around 10 or 11
p.m.
Circumstantial evidence tied the defendant, Victor
Cazes, to the offense. His finger and palm prints were found
on the front window screen and frame. Two of his fingerprints
were lifted from a light bulb beside the back door and fresh pry
marks were found on the [back door]. Gladys Skinner routinely
left this back light on at night, and it was on when Ben Harris
left her house shortly after midnight Sunday morning. When
her body was found, the light was off and the bulb was loose
in its socket, as if it had been unscrewed.
Michael Lucas testified that Victor Cazes owned two or
three chipping hammers, which Lucas described as blunt
instruments made entirely of steel with a point on one end, a
chisel flat on the other end, and a coil-wired handle. A forensic
anthropologist testified that a pattern of depressions located in
the involved portion of the victim’s skull were consistent with
ridges on the striking surface of a particular welder’s chipping
hammer owned by Cazes. The hammer had been crafted into
a metal knick-knack by Cazes after the crime and given to a
friend’s mother. The forensic serologist also testified that a
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transfer blood stain on the victim’s bedsheet was caused by
contact with a wet, bloody object which was consistent with the
size and shape of this same chipping hammer and another like
it that Cazes had left at the home of his friend’s mother.
Dr. Richard Souviron, a forensic odontologist, testified
that, based upon his comparison of the bite marks on Gladys
Skinner’s breasts with molds and models of Cazes’ teeth, he
had concluded to a reasonable degree of dental certainty that
Cazes’ teeth had made the bite marks on the victim’s body at
or about the time of her death. Another forensic odontologist,
Dr. Harry Mincer, testified that the defendant Cazes could have
made the bite marks on the victim. Two women who had
engaged in sexual intercourse with Cazes testified that he had
also bitten them, and that the victim’s body position was one
he preferred during sex.
The defendant presented no proof.
Based on this evidence in the guilt phase, the jury found
the defendant, Victor Cazes, guilty of first-degree felony
murder in the perpetration of rape, and also guilty of
aggravated rape and first-degree burglary.
In the sentencing phase of the trial, the State relied
upon the evidence presented during the guilt phase and also
introduced records of the defendant’s previous convictions in
Shelby County, Tennessee, in February 1990 for “assault [with
intent to commit murder in the first degree] with bodily injury”
and for aggravated rape.
In mitigation, the defendant introduced medical records
from the period of his incarceration in the Shelby County Jail
to show that he had required medical treatment on several
occasions as a result of fights, and that he had been placed on
suicide watch twice while incarcerated. An acquaintance
testified that the defendant was a heavy user of alcohol,
marijuana and cocaine, and that he sometimes could not
remember what he had done while he was intoxicated.
The defendant and two of his brothers testified about his
background. One of twelve children, the defendant had been
unable to control his urination until he was twenty. He testified
that his father had beaten him when he was young. One
brother described the defendant as “hot-tempered” and
“always fighting.” The defendant said that he fought because
other people would tease him when he wet on himself. In the
seventh grade, after being arrested for truancy, the defendant
set fire to his jail cell. He underwent a psychiatric examination
and was sent to reform school, where the fights continued.
After his release from reform school, the defendant married
twice. He has one child from his second marriage. The
defendant had worked for a substantial wage as a welder in
Louisiana, and a brother described him as a “hard-working
man.” The defendant testified he began drinking after his first
divorce and admitted using various drugs and flying into rages.
As to the crime itself, the defendant testified that on
Saturday night, April 23, 1988, he was “full of it” and “well on
[his] way” to being drunk when he left the cookout at Michael
Lucas’s home. After leaving the cookout, he drank a bottle of
Jim Beam on his way to a bar where he “got totally drunk.” He
stated that he remembered nothing more about the night.
4
Dr. Wyatt Nichols, a clinical psychologist, testified that
while the defendant was competent to stand trial and not
legally insane, there were signs to indicate psychological
problems. Dr. Nichols specifically mentioned the defendant’s
long history of chemical dependency and multiple drug abuse.
He also suggested that the defendant might have an impulse
control problem which, along with the history of bedwetting,
was possibly indicative of minimal neurological damage.
Based on the proof, the jury found the existence of three
aggravating circumstances beyond a reasonable doubt, which
were: (1) that the defendant had been previously convicted of
violent felony offenses; (2) that the murder was especially
heinous, atrocious, or cruel in that it involved torture or
depravity of mind; and (3) that the murder was committed while
the defendant was engaged in committing a felony. Tenn.
Code Ann. § 39-2-203(i)(2), (5), and (7) (1982).1 In addition,
the jury found that the mitigating circumstances were not
sufficiently substantial to outweigh the aggravating
circumstance and as a result, sentenced the defendant to
death.
Cazes, 875 S.W.2d at 257-59.
At the post-conviction evidentiary hearing, Gloria Shettles, a private
investigator hired on behalf of the petitioner, testified that she obtained the names of
twenty-eight witnesses from the prosecutor’s original trial files. She said she located
fifteen of these witnesses and interviewed nine of them, including former employers.
Ms. Shettles testified that those interviewed were very cooperative but that they could
not recall some information. She said that three of the petitioner’s former employers
indicated that the petitioner was an excellent worker but that the petitioner had difficulty
getting along with coworkers and following directions. Ms. Shettles said that the
employers also reported that the petitioner did not take criticism well and was impatient,
emotional and impulsive. Ms. Shettles said that others told her that the petitioner was
quiet and a loner. Ms. Shettles testified as follows:
A lot of these people had been, or had observed [the
petitioner] when he was drinking. And so a lot of their remarks
had to do with a definite change in his behavior under the
influence of alcohol. And they spoke to that . . . . They talked
about [the petitioner] literally being in control one minute and
not being in control the next. They couldn’t give -- they were
consistent in their remarks, but they couldn’t give me any basis
for it, even in their opinion. That he was sitting there and was
fine, and then the next minute [he] might become very angry
at somebody and would act out on that anger . . . . Well,
people made -- almost everyone made a remark such as, it
seemed as though he had a mental problem. He might have
1
The felon y murd er aggra vating circ umsta nce w as reve rsed on appea l, and the su preme court
found that its application was harmless.
5
had a split personality. Obviously, these people aren’t experts.
But, in their opinion he would have a wild look, for instance,
after he was drinking. There was a noticeable change that
they could describe.
Ms. Shettles testified that the information she gathered from her interviews was
consistent with the information found in the police reports.
Dr. Pamela Auble, a clinical neuropsychologist, testified that she
conducted a psychological and neuropsychological evaluation of the petitioner. Dr.
Auble stated that before testifying at the evidentiary hearing, she reviewed a social
history prepared by Sarah Ottinger; reports prepared by Drs. Rossby, Nurcombe and
Smith; and the results of tests she administered on the petitioner, including an
intelligence test, an achievement test in reading and writing, a memory test, two tests of
mental flexibility, two language tests, two tests of motor speed and dexterity, and five
personality tests. Dr. Auble said she also interviewed the petitioner.
Dr. Auble testified that the petitioner was cooperative during the tests and
the interview. She also stated:
[T]here was no evidence, or no strong and conclusive
evidence that the memory and thinking that [the petitioner]
does is a lot different from what other people do. A problem
that would indicate or suggest that parts of his brain, you know
there might be holes in parts of his brain, or damage in certain
areas of his brain. . . . It’s known that, things like head injuries,
often cause emotional lack of control, impulsiveness and an
inability to control emotions. But, they’re also associated with
difficulties with memory and thinking. I didn’t really find that
with [the petitioner], which indicates to me that the troubles that
he has controlling his emotions are more likely to be the result
of a chemical imbalance, or something along that line, rather
than the results of a head injury, per se.
With regard to the personality tests, Dr. Auble testified as follows:
[The petitioner] is someone who tends to brood and ruminate
about wrongs that have been done to him. He thinks a great
deal. He has probably a rich internal life, that is how he kind
of copes with his world. He kind of retreats into fantasy or
thinking. The personality testing indicated that he can be
impulsive and he can act out under stress. He doesn’t have
very good emotional controls. From the personality testing [the
petitioner] is somebody who has a lot of difficulty relating to
other people. Some parts of him wants [sic] closeness, other
parts feel angry and rejected. He is ambivalent about both
women and men, and in general, I think, tries to keep people
at a distance. He tends to be suspicious of people. You know,
to believe that others would hurt him if they were given the
chance. There was also evidence on the personality testing of
confusion about sexuality, and [mother-son] relationships.
6
Regarding the petitioner’s social history, Dr. Auble testified that the
petitioner is the ninth of eleven children and that until he was in his twenties, the
petitioner suffered from enuresis, which caused the petitioner to urinate on himself both
while asleep and awake. Dr. Auble stated that because of this condition, the petitioner
was “picked on” by his family and other children. Dr. Auble testified about physical
abuse the petitioner suffered from both parents at an early age, fights he had with his
siblings, and discipline problems he had in school, including an attack on a teacher and
a principal and his inability to relate to other students, which led to expulsion from two
elementary schools.
Dr. Auble testified that she diagnosed the petitioner with intermittent
explosive disorder, which she said is consistent with Dr. Rossby’s finding of low
serotonin levels. With respect to serotonin, Dr. Auble stated that:
Serotonin is a neuro-transmitter. It’s one of several in the
brain. Neuro-transmitters have various functions. Serotonin
has been associated, primarily, with inhibitory functions.
Specifically, and probably the most relevant for this inhibitor,
are functions of the amygdala which is a brain structure, kind
of in the mid-brain limbic system. The amygdala is responsible
for emotional memory. Disruption of amygdala function causes
rage reactions. A low serotonin level would be something that
would decrease inhibition in the amygdala, making it more
likely that a rage reaction might occur.
Dr. Auble testified that the petitioner’s intermittent explosive disorder is “characterized
by periods of rage, which are often triggered by fairly minor events, during which the
person has no control . . . [a]nd then, they eventually subside.” According to Dr. Auble,
the petitioner has suffered from this disorder since childhood. Dr. Auble testified that
this disorder could be attributed to traumatic experiences the petitioner had as a child,
as well as the petitioner’s low serotonin level. Dr. Auble stated that the petitioner would
sometimes enter a dissociative state, triggered by a minor event related to past
traumatic experiences, and afterward, the petitioner would have no memory of what
occurred while he was in that state. Dr. Auble also concluded that the petitioner
exhibited schizotypal personality disorder with antisocial and compulsive traits.
Dr. Auble testified that the petitioner’s history of alcohol and drug abuse
would contribute to lowering his serotonin levels and inhibitions. Dr. Auble testified that:
7
[the petitioner’s] violence towards women increased, from the
time he was married and coincided with the greater alcohol
use . . . . Yes. Certainly, a correlation, yes. An association
between the disinhibition of alcohol and, you know, [the
petitioner] has just immense amounts of underlying anger. A
lot of that towards women. In the context of alcohol and
substance abuse, in the context of relating to a woman, you
know, those would come together and make it more likely for
him to experience anger, rage, intermittent explosive disorder
and dissociative episodes.
Dr. Auble testified that had she been contacted before trial, she would
have recommended further analysis and investigation of the petitioner’s brain
chemistry, specifically testing of the cerebrum spinal fluid, which would have shown the
low serotonin levels. Dr. Auble explained that “given the organic and psychological
problems, the history of physical and emotion [sic] abuse and neglect, the intoxication
at the time, that it is . . . likelier than not that [the petitioner] was in a dissociative state
and was unable to conform his conduct to the requirements of the law, unable to control
his behavior.”
Dr. Auble testified that she did not personally perform all the tests
administered on the petitioner during the evaluation; only reviewed a summary of the
transcript prepared by post-conviction counsel; and did not discuss the matter with Dr.
Nichols, the defense expert at trial, except for reviewing his notes and data. Dr. Auble
testified that she did not remember whether she asked the petitioner about the events
surrounding the murder or whether he was using alcohol or drugs at the time. She
testified, however, that she believed that another expert was supposed to focus on that
aspect.
Dr. Murray Smith, a specialist in internal and addiction medicine and the
Medical Director of Baptist Hospital’s drug and alcohol treatment center, testified that he
evaluated the petitioner both medically and in terms of addiction medicine. Dr. Smith
testified that he reviewed summaries of the trial transcript and previous medical records
prepared by post-conviction counsel; the reports of Drs. Rossby, Auble and Nurcombe;
the social history prepared by Sarah Ottinger, and he interviewed the petitioner for
about four hours. Dr. Smith stated that he also performed blood and glucose tests on
the petitioner. Dr. Smith testified that the petitioner exhibited signs of hypoglycemia,
8
which is a significantly low blood sugar level that results in stressful, hyper-irritable and
excitable feelings. He said that adrenaline levels would increase to raise the blood
sugar level. Dr. Smith further testified that alcohol, though initially raising the blood
sugar level, would eventually lower the level. He stated that persons suffering from
hypoglycemia would crave alcohol to get a “quick fuel supply.” Dr. Smith stated as
follows:
There’s [sic] two symptoms a person feels. One is the affect
of the low sugar itself. And the second is the affect of the
adrenaline. The affect of the low sugar itself may be the
feeling of confusion. A feeling like spaciness, like things aren’t
working well, like poor focus, poor concentration, poor
memory. Then the affect of the adrenaline includes increased
heart rate, increased breathing rate, increased blood pressure,
increase [sic] muscular activity with shakiness. A sense of
impending doom. A sense of anxiety. A sense of irritability.
Even some paranoia.
Dr. Smith testified that stress, the petitioner’s alcohol and chemical
dependency, and the petitioner’s diet of “fast food type foods with a very heavy intake
of Coca-Cola, regular Coca-Cola” caused the petitioner’s hypoglycemic condition. Dr.
Smith believed that the petitioner inherited the brain chemistry which fostered his
alcohol and chemical addiction. Dr. Smith stated that the petitioner informed him that
he experienced alcohol induced blackouts. Dr. Smith also stated that the summary of
the trial transcript indicated that other witnesses testified about the petitioner’s
blackouts. Dr. Smith testified that the general opinion in his profession is that alcohol
releases the inhibition against violent rageful behavior rather than producing that type of
behavior. Dr. Smith testified that for people who suffer from intermittent explosive
disorder, the addition of alcohol and drug addiction “would be like pouring gasoline on a
fire.” In addition, Dr. Smith testified that alcohol and cocaine use increases the
likelihood of the severity of hypoglycemic reactions.
Dr. Smith testified that alcohol contributes to lowering the serotonin level
over time, which causes irritable and suspicious feelings, and an inability to inhibit
behavior. Dr. Smith testified that a combination of alcohol abuse, low serotonin,
hypoglycemia and intermittent explosive disorder, such as he believed was present in
the petitioner, would prevent a person under severe emotional stress from controlling
his behavior. Dr. Smith stated that all these conditions are treatable and that treating
them would reduce the risk of uncontrollable behavior. Dr. Smith agreed with Dr.
9
Auble’s diagnosis of intermittent explosive disorder and stated that he believed the
petitioner has antisocial personality disorder as well.
In response to a question about what might have triggered the petitioner’s
violent behavior on the night of the crime, Dr. Smith stated:
I can tell you what I believe. I believe that as a child [the
petitioner] had something very, very horrible happen to him in
regards to an older woman. His mother says that she will take
whatever it was to her grave and will not talk about it. And
because of dissociation, [the petitioner] cannot ever know what
it was. And that whatever triggered his violent, uncontrollable
activity that night, was triggered by something that related to
an older woman and that particular situation. And I may never
know and you may never know. And [the petitioner] certainly
wouldn’t know. But, I believe it happened. And I believe it
based on a lot of literature and based on a training program
that I went to in New Orleans at River Oaks Hospital. That this
type of thing happens . . . . It’s more than a guess. It’s an
educated summary of all the materials. If I took just one part
of it, no I couldn’t, but taking the big picture of what his mother
said, of his history, of his reactivity to women. The big picture
would suggest that this is what happened to him. And that he
was triggered into a dissociative state where he had absolute
loss of control that his functional self wasn’t there. All he was
was a reactive self.
Dr. Smith further testified that a person in a dissociative state could premeditate, i.e.,
act “very clever . . . because it is survival.”
Dr. Smith stated that although he reviewed the summary of the transcript
prepared by post-conviction counsel, he did not ask the petitioner any questions about
the facts and circumstances surrounding the crime. Dr. Smith testified that it was not
necessary to question the petitioner on this because the summary of the transcript
noted that the petitioner had no recollection of the events. He testified that in addition,
the only report of the petitioner’s intoxication on the night of the murder came from the
petitioner himself. He said that the petitioner told him that he started drinking between
3:00 and 5:00 p.m. and consumed two pints of whiskey. Dr. Smith testified that
although the petitioner could not recall the specific events of that night, the petitioner
told him that he would normally ingest two Valium pills and several lines of cocaine and
smoke two to three marijuana cigarettes.
Dr. Barry Nurcombe, a psychiatry professor and the director of child and
adolescent psychiatry at Vanderbilt University, testified that he interviewed the
10
petitioner four or five times for a total of eleven hours. Dr. Nurcombe said he also
reviewed the petitioner’s social history; a summary of the trial transcript; and reports
from Drs. Rossby, Smith and Auble during his evaluation. Dr. Nurcombe said he did
not test the petitioner. Dr. Nurcombe testified that the petitioner suffered from
intermittent explosive disorder, polysubstance abuse, paranoid personality disorder,
hypoglycemia and a low serotonin level. He testified that ninety-nine percent of the
same sex, race and age population as the petitioner have higher serotonin levels than
the petitioner. Dr. Nurcombe stated that the combination of these factors would cause
the petitioner to have difficulty controlling violent impulses. According to Dr. Nurcombe,
the petitioner’s capacity to conform his conduct to the requirements of the law was
impaired at the time of the offense in this case.
Dr. Nurcombe testified that research in this field since the early 1980s has
demonstrated that low serotonin levels are associated with violent impulsive behavior.
He said the research further demonstrates that recidivist offenders of violent crimes
tend to have a lower serotonin level than do nonrecidivist offenders. He said that a
combination of hypoglycemia and low serotonin levels seems to be a possible indicator
of recidivism. Dr. Nurcombe stated that alcohol consumption and intermittent explosive
disorder are also factors.
Dr. Nurcombe testified that individuals have certain memories that are
reactivated by situations or events that remind the individual of terrifying or emotionally
arousing experiences from the past. He said the person will not usually remember the
past event, but when the emotion from the past event is triggered by something in the
present, not necessarily recognized by the person, an automatic discharge of behavior,
feeling and emotion occurs. He testified that serotonin helps the individual control
these automatic discharges. According to Dr. Nurcombe, lower serotonin levels, like
the petitioner has, severely impair the ability to control the automatic discharges of
emotion or behavior. Dr. Nurcombe stated that after reviewing the petitioner’s social
history prepared by Ms. Ottinger, he found the following factors relevant with regard to
the generation of emotional memory in the petitioner:
The social history . . . did indicate a considerable degree of
emotional and physical abuse . . . . First of all [the petitioner]
was the ninth of eleven children. He was born . . . into a family
11
which was identified, I think, ethnically with the Cajun group in
Louisiana. His family was very poor. Early in their marriage
[the petitioner’s] parents are said to have had a turbulent
marriage. Although by the time he was born, this was less
apparent. The parents, however, were described as
disengaged from each other. This was a family in which
affection was not expressed. And, in fact, the only emotion
that was expressed, and in fact, encouraged to be expressed
was fighting between the siblings. By the time [the petitioner]
was born, his mother left much of the child rearing and child
care to the older daughters in the family . . . . [The petitioner]
suffered from early childhood to the age of 21 with severe
problem [sic] of urinary incontinence, which involved both
daytime and nighttime incontinence . . . . The mother is said to
have been punitive towards him for this. The other siblings
humiliated him. His nickname at home was “piss-bug.” . . . In
fact, from the very first day of school he remembers being
separated from the classroom for having been incontinent and
being made to stand in a corner. And this happened frequently
when he was at school. And for other children rejecting him or
humiliating him on these grounds . . . . [The petitioner] was
subject from middle childhood, onward, to attacks of rage,
which became extremely severe by the age of 11 to 12 years.
As a result of his attacks of rage, of impulsive running away
from school, he was suspended, expelled, in fact, from two
schools. And had very significant difficulties in the third and
final school that he attended. Rage, assaults on teachers,
impulsive running away, provocation towards other children,
together with the problem of enuresis indicated that by the time
he reached grade five he was in serious difficulties,
emotionally.
Dr. Nurcombe testified that the petitioner’s social history suggests that he
had low serotonin levels as a child. Dr. Nurcombe discussed the physical abuse the
petitioner suffered from his parents, and he said it is significant that the petitioner has
no memory of his mother’s physical abuse toward him. Dr. Nurcombe stated that the
evidence of abuse by the petitioner’s mother was gathered from the petitioner’s
siblings. Dr. Nurcombe believed that the petitioner repressed these memories. Dr.
Nurcombe also considered significant two school reports that described the petitioner
as being in a “trance” and “out of touch at times.” According to Dr. Nurcombe, these
reports are consistent with a dissociative tendency.
Dr. Nurcombe testified that the petitioner abused alcohol in an effort to
overcome his anger toward his wives. Dr. Nurcombe explained that the more the
petitioner drank, the more irritable and explosive he became because his serotonin
levels would eventually drop even further. Dr. Nurcombe stated that low serotonin,
aggravated by alcohol abuse, disinhibits and enables the release of repressed
emotional memories. Dr. Nurcombe testified that the petitioner’s hypoglycemia, in
12
connection with the low serotonin, intermittent explosive disorder and alcohol abuse,
would increase the petitioner’s lack of control.
Dr. Nurcombe testified that he would not necessarily have described the
petitioner’s condition in the same way as Dr. Nichols. Dr. Nurcombe stated that the
petitioner was in a “fugue state,” wherein the petitioner was in a continuing impulsive
violent rage triggered by a momentary experience. When asked whether the petitioner
would have the capacity to conform his conduct to the requirements of the law, Dr.
Nurcombe initially responded that the petitioner’s ability to do so would be significantly
impaired. Upon further questioning, he stated that assuming the petitioner was
intoxicated, hypoglycemic, and experiencing a low serotonin level and intermittent
explosive disorder triggered by some event, the petitioner’s ability would be so
significantly impaired as to prevent the petitioner from conforming his conduct to the
requirements of the law.
Dr. Nurcombe testified that although the petitioner did not remember
committing the murder, the petitioner did remember that he drank and took drugs earlier
that evening. Dr. Nurcombe also stated that the petitioner was convicted in Louisiana
of a sexual offense about which he was able to remember the circumstances
surrounding the offense. Dr. Nurcombe testified that the ingestion of drugs and alcohol
were the main factors that triggered the event in the present case. Dr. Nurcombe
admitted that he could not identify any emotional trigger, but he added that the trigger
could be something minor that would not necessarily be identified by anyone else.
When asked by the court how an explosive disorder can be justified when
there was evidence of planning in this case, Dr. Nurcombe explained that because the
petitioner drank so heavily and blacked out, something likely occurred during this
intoxicated state to trigger the petitioner’s emotional memories. According to Dr.
Nurcombe, this in turn led the petitioner to act out his revenge fantasies against
women. Dr. Nurcombe stated that although the petitioner did not inform him of any
revenge fantasies toward women because he is not consciously aware of them, the
petitioner did describe revenge fantasies and violent reactions against people in prison
who had slighted or humiliated him. Dr. Nurcombe explained that there is some sense
13
of primitive self-protective behavior when a person is in a “fugue state” and that the
person’s behavior in a “fugue state” is more automatic and outside conscious
awareness. Finally, Dr. Nurcombe testified that the petitioner’s “plain meanness” would
be attributable to his mental disorders.
James Ball testified that he and Dwight Duncan were appointed to
represent the petitioner after the trial court relieved the Office of the Public Defender.
Mr. Ball testified that he had been practicing law since 1961 and estimated that he had
been involved in thousands of criminal cases, including several capital cases. Mr. Ball
testified that he assumed the case was “pretty much worked up” when he took it over
because the capital defense team at the Public Defender’s Office had the case for
about thirteen months. Mr. Ball testified that the court appointed him to the case around
July 9, 1990. He said that the trial was originally scheduled to start on September 10,
1990, but they obtained a continuance until September 24, 1990. Mr. Ball further
testified that Mr. Duncan was not available to assist him until late August.
Mr. Ball testified that he did not recall whether he was familiar with the
filing of ex parte motions for expert services in capital cases. He said that Dr. Nichols
evaluated the petitioner while the public defender represented him. Mr. Ball testified
that his first contact with Dr. Nichols was sometime in September and that Dr. Nichols
suggested the possibility that the petitioner suffered from an organic brain impairment,
which severely limited his ability to control his impulses when angry. Mr. Ball testified
that Mr. Duncan filed a motion for additional support services on September 29, 1990,
upon receiving a letter from Dr. Nichols on September 28, 1990, explaining that the
petitioner might be suffering from an organic brain disorder. Mr. Ball testified that they
wanted an M.R.I. and a Q-beam performed on the petitioner. He said that they filed the
motion during the guilt phase of trial, and the trial court denied it.
Mr. Ball testified that he received discovery from the state but that he did
not receive the police reports from the case. Mr. Ball also testified that both Mr. Duncan
and the public defender requested the petitioner’s school records from Louisiana but
never received them. Mr. Ball testified that he personally traveled to Louisiana and met
with the petitioner’s family for several hours but that they were not very cooperative. He
14
said he asked to talk to the petitioner’s mother, but the family refused because they did
not want her to be involved. Mr. Ball testified that although he attempted to have the
entire family testify during the sentencing phase, only two of the petitioner’s brothers
appeared. Mr. Ball said he did not meet with any of the petitioner’s former teachers or
principals. However, he said he knew that the petitioner had a troubled childhood,
including problems in school. Mr. Ball said that from conversations with the petitioner
and some of his acquaintances, he discovered that the petitioner abused drugs and
alcohol. He said he reviewed the petitioner’s social history prepared for the post-
conviction hearing and testified that the information would have been helpful to the
defense at trial. However, he stated that during sentencing, testimony revealed facts
about the petitioner’s childhood and alcohol and drug abuse, as well as his possible
neurological problems.
Mr. Ball testified that he met with the petitioner often before trial and was
able to carry on intelligent conversations about the proof and available defenses. He
said he believed that the petitioner was competent to assist in his defense. Mr. Ball
said he never considered the petitioner to be out of touch with reality during the trial.
He said he knew that the petitioner was taking antipsychotic drugs while in jail. He
stated that the most damaging evidence against the petitioner at trial was
circumstantial: the fingerprints at the scene and the bite marks on the victim. Mr. Ball
said that the state apparently lost one of the fingerprints taken from the screen in front
of the victim’s house. Mr. Ball testified that he and Mr. Duncan defended on the merits
of the case, meaning they made the state prove its case beyond a reasonable doubt
because “that’s what [he] thought needed to be done.” Mr. Ball stated that the
petitioner had been to the victim’s residence before because he was a friend of her
grandson. He said that he and Mr. Duncan filed a motion on August 29, 1990, for
expert services to assist in rebutting the state’s experts on the fingerprints, the bite
marks, and the chipping hammer, but the motion was denied. Mr. Ball testified that
they fully discussed the case with the petitioner and that the petitioner did not object to
the trial strategy. Mr. Ball testified that the petitioner was not in favor of an insanity
defense. He said the decision to forgo an insanity defense was made before Dr.
Nichols sent him the letter suggesting that more testing might be helpful. Mr. Ball
testified that Dr. Nichols examined the petitioner before trial and that Dr. Nichols stated
15
that he believed the petitioner was competent and legally sane at the time of the
offense.
Judge James C. Beasley, Jr., former Assistant District Attorney General,
testified that he helped prosecute the petitioner’s case. Judge Beasley testified that he
gave defense counsel a copy of his entire file when they were appointed to represent
the petitioner. Judge Beasley testified that this was not his normal procedure but
because petitioner’s counsel were appointed after the public defender was relieved
prior to trial, he gave new counsel everything he had, except possibly the police reports.
Judge Beasley recounted the mitigation proof presented by the defense, including the
petitioner’s own testimony, as follows:
It was -- I mean, I think you would have to be very cold
not to have been moved by it. Even though I was the
prosecutor and even though I was seeking the death penalty,
I felt it was moving testimony. And I think I was concerned,
especially when the jury stayed out in the sentencing phase for
five or six hours, two or three times longer than they had in the
guilt phase. It concerned me greatly that they may be being
swayed by this proof that he had put on.
Judge Beasley testified that the state questioned the petitioner on cross-
examination about the events on the night of the murder but that the petitioner testified
that he did not recall anything about the offense. Judge Beasley testified that the jury
appeared to be very emotional when they returned with their verdict. Judge Beasley
testified that even if the defense had offered expert testimony during the guilt phase
suggesting that the crime was impulsive, he still would have argued to the jury that the
petitioner planned his actions and acted with premeditation.
Dr. Daniel A. Martell, a forensic neuropsychologist, testified that forensic
neuropsychology encompasses the study of brain damage and its effects on human
behavior as it relates to the law. Dr. Martell stated that before his two-day evaluation of
the petitioner, he reviewed the post-conviction testimony of the petitioner’s experts, the
petitioner’s prison records, the police reports, and selected portions of the trial transcript
and the medical records of the petitioner’s mother. Dr. Martell said he interviewed the
petitioner and administered several tests, including memory tests; a language test; a
psychological disassociation test; a battery of tests to detect malingering; tests
16
measuring psychopathy, antisocial behaviors and substance abuse; and the MMPI
psychological personality test.
Dr. Martell testified that the petitioner has low serotonin and
hypoglycemia. However, he also testified that:
the research that attempted to link low serotonin to violent
behavior I think is -- has been over represented to the Court,
the strength of that association. A careful reading of the
literature indicates that it’s not tied to violent behavior per se,
but rather is tied to impulsive behavior, of which violence or
aggression is sometimes a subset.
A careful examination of the trial record indicates that
Mr. Cazes’s behavior in conducting the crime was not
impulsive. And the finding from the research is that low
serotonin is related to impulsive criminal offending.
In fact, when you look at the criteria for the research
groups, people were determined not to be impulsive if, number
one, they knew the victim, which Mr. Cazes did in this case;
and number two, if there was evidence of premeditation in the
conduct of the violent crime. And I believe a reading of the
record indicates that there was that level of premeditation, of
non-impulsive, planned, goal-oriented behavior, and I’m
prepared to give the Court my impression from reading the trial
record of evidence of that lack of impulsivity.
....
The first issue is the fact that he selected a victim that
was known to him, which, as I mentioned from the research
studies, would be rule-out [sic] for impulsivity.
In addition, upon arriving at her residence, he obtained
a chipping hammer, which I understand to be a welder’s tool,
from his car, which he used both in attempting to gain entry to
her residence as well as in the assault on Ms. Skinner. The
fact that he had the foresight to plan ahead and obtain this tool
to help him indicates that he was not behaving in an impulsive
way, but rather in a goal-oriented way. He appreciated the
nature and consequences of what he wanted to do, i.e., obtain
entry into her locked house and gain access to her, and it also
indicates an ability to control his behavior. He didn’t go
rushing out of his car and banging on the door or smashing out
the window. He was careful in taking a tool with him to
perpetrate the crime.
The fact that he unscrewed the light bulb illuminating
the backyard is further indication that he knew what he was
doing or what he wanted to do was wrong and that he wanted
to reduce his risk of detection by reducing the illumination in
that situation. So it’s purposeful behavior directed at avoiding
detection of his behavior. Again, that is not impulsive. He
didn’t go cracking at the door and smashing out the window
until he reduced his risk.
There’s evidence at the back door of evidence of trying
to -- of pry marks to open that door. Failing . . . for some
reason at being able to do that, whether it was making too
much noise or he couldn’t get the door open, I don’t know, but
17
for some reason he abandoned that effort, he then was able to
plan an alternative strategy. He was able to shift from trying to
gain entry through the back of the house and go around to the
front of the house, where he may have attempted to gain entry
through the front door, which had an iron gate on it, and
ultimately selected an accessible window as his mode of entry.
The ability to shift your behavior, to start in on one plan
of attack, meet an impediment and then have the problem
solving ability to avoid that and go around and find another
way to get in again is evidence that it’s not impulsive. This is
focused, goal-oriented behavior, aimed at obtaining a specific
reward; that is, getting access into her secured home and
gaining access to her.
Even upon selecting the window he still had to deal with
the screens that had been installed there and had to remove
the screens. Again his dogged pursuit of his goal of gaining
entry into the house at whatever means necessary, mangling
the screen, breaking out the window, all of these things are not
impulsive, but instead are planned, focused, goal-oriented
behaviors.
Once inside the house, the evidence indicates that he
centered his behavior on the victim’s bedroom where she was.
He is not elsewhere in the house breaking into things.
Everything is focused where the scene of the sexual assault
takes place.
Upon encountering Ms. Skinner, he subdued her with
blows to her head and body with the chipping hammer. This
was to render her compliant to his wishes, to reduce her ability
to call the police or to scream or to call for help. This is
behavior that’s very characteristic of sexual homicide offenders
as they have been profiled by the FBI’s Behavioral Science
Unit and as they’ve published about the behavior of individuals
who do this. This is very typical behavior of sexual homicide
offenders to use this kind of blitz attack on the victim to subdue
them and to get them to cooperate with their wishes.
Again, this is not impulsive behavior. This is purposeful,
goal-directed behavior in order to permit him to accomplish the
sexual act that he has come there to do.
In addition, after subduing her, he engages in sexual
behaviors that are particularly pleasing to him, including biting
the victim in certain places and posing her body in sexual
positions that he found arousing and that were his favorite
positions to do that. Again, this is practiced and purposeful
behavior for his own sexual gratification, not impulsive
behavior driven by some biochemical imbalance.
Following the assault, the evidence indicates that he
ransacked her bedroom, pulling things out of the drawers,
staging the crime scene to perhaps appear as if a robbery had
occurred. Again, this kind of staging of the crime scene is not
impulsive behavior, but rather is purposeful, goal-directed
behavior, intended to misdirect investigators who come on to
the scene and make them think that there was some other goal
in mind during the course of the assault.
This type of forensic behavioral analysis to me indicates
that this was not an impulsive crime, but rather was purposeful,
focused, goal-directed, planned behavior, and that would be
inconsistent with the research literature on glucose metabolism
18
and low serotonin that suggests that some of these offenders
will engage in aggressive behavior that is impulsive.
Dr. Martell testified that the petitioner met the criteria for conduct disorder
in childhood and antisocial personality behavior as an adult, but he testified that he
disagreed with the diagnosis of intermittent explosive disorder because this disorder is
characterized by sudden, unexpected rage attacks that must occur outside the context
of other specific mental disorders, including intoxication. Dr. Martell testified that
according to the petitioner’s history, the petitioner’s rage occurred only when he was
intoxicated. Dr. Martell also disagreed that the crime was committed while the
petitioner was in a dissociative mental state. He said that during his evaluation of the
petitioner, the petitioner informed him that he had about twenty blackout spells after
which he would not remember anything and that they all occurred while he was abusing
either drugs or alcohol. According to Dr. Martell, the diagnosis of a dissociative
disorder cannot be made if the disorder only occurs during a state of intoxication. Dr.
Martell said that in addition, the petitioner scored below the cutoff for dissociation on the
test he administered. Dr. Martell testified that the petitioner never engaged in a violent
act during any of the other blackouts he experienced and that the petitioner did not
claim to have amnesia during previous violent acts. Dr. Martell said that this indicates
that the petitioner was not in a dissociative state at the time of the crime.
Dr. Martell testified that contrary to Dr. Auble’s findings, he did not find
any evidence of neuropsychological impairment. Dr. Martell opined that the petitioner
was not giving his best efforts on the neuropsychological tests administered by Dr.
Auble. Dr. Martell testified that the petitioner exaggerated his responses on some of
the personality tests administered by Dr. Auble, which could have caused her to
misinterpret the results. Dr. Martell testified that the petitioner was “emotionally labile,
that he’s demanding, that he can be hostile and irritable and evasive and suspicious
and distrustful.”
Dr. Martell testified that he reviewed Dr. Nichols’ recommendation that the
petitioner undergo further neurological evaluation and stated that even if further
evaluation had been performed before trial, the results would not have supported an
19
insanity defense. Dr. Martell stated:
I think even if it had led to the full examination that has
been done in the last year or two, because of the reasons I’ve
outlined for the Court this morning, none of these factors would
have been relevant to his mental state.
Serotonin doesn’t matter because the crime was not
impulsive. He doesn’t meet criteria for intermittent explosive
disorder or dissociation. He is an antisocial character. And
even if this additional testing were done, we’d be at the same
point that we are today, that it wouldn’t support it.
Dr. Nichols was the defense doctor, and he himself felt
that he was not insane. He thought it would be nice to know
more about his neuropsychological status, but even if we had
pursued that at that -- if the Court had pursued that or the
defense had pursued that at the time and it yielded the findings
that we have today, it still wouldn’t have contributed to his
defense or to mitigation evidence.
Dr. Martell admitted that he used his own method instead of an official
computer program from National Computer Systems in scoring some of the tests
administered to the petitioner. Dr. Martell also admitted that more than one published
authority exists regarding the results of some of the psychological tests administered.
The petitioner’s attorney attempted to discredit Dr. Martell’s conclusions. For example,
after citing to one of the authorities upon which Dr. Martell relied that stated that a
disorganized crime scene suggests an impulsive crime, the attorney asked Dr. Martell
how he concluded that the petitioner acted with purpose when the victim’s bedroom
was in such disarray. Dr. Martell supported his conclusion with the fact that the
petitioner tried to deter detection by unscrewing the light bulb above the back door and
by trying to pry the door open rather than kicking it open. Dr. Martell explained that the
petitioner may have left the crime scene in disarray to mislead the police about the
purpose of the crime. Regarding the petitioner’s low serotonin level, alcohol abuse, and
hypoglycemia, the following colloquy occurred:
ATTORNEY: So those three factors in combination are good
predictors of the likelihood of violent impulsive behavior?
DR. MARTELL: Of impulsive violent behavior, that’s correct.
ATTORNEY: That’s correct. And Mr. Cazes has all three of
those factors in evidence, does he not?
DR. MARTELL: He has the factors, but in committing this
crime he was not impulsive.
ATTORNEY: Well, again that goes to your definition of impulsivity.
....
20
DR. MARTELL: This is based on an analysis of his behavior
as he conducted the crimes.
ATTORNEY: According to your notion of impulsivity?
DR. MARTELL: It is my opinion. That’s correct.
Regarding the petitioner’s treatment with Prozac while in prison, the following colloquy
occurred:
ATTORNEY: And you asked him about how it had affected him,
correct?
DR. MARTELL: I did.
ATTORNEY: And he responded that it had calmed him down?
DR. MARTELL: He did.
ATTORNEY: Isn’t that in itself corroborative of the behavioral effects
of low serotonin in Mr. Cazes?
DR. MARTELL: No, it is not, and let me tell you why. Mr.
Cazes, during the period of time when he was being treated
with Prozac, he had historically refused any treatment or
contact until these proceedings and Dr. Nurcombe’s diagnosis
and the serotonin findings, at which time he did agree to take
the Prozac. And he reports he felt better, and there is actually
a note in the chart that said there was some improvement in
his behavior.
However, at the same time that he was taking the Prozac
he had at least two incidents where he flung feces on
correctional officers during the time when he is being treated.
And then he later refused to take the medication and continued
to have this kind of behavior, not necessarily the throwing
feces, but acting out to the point where he had to be put in the
administrative segregation.
And it’s also a consistent pattern with his prior disciplinary
history in the institution. So that to me shows that there’s no
correlation between the Prozac treatment and his impulsive
acting-out kind of behavior. I think it reflects antisocial
personality, not serotonin depletion.
COURT: You’re saying he felt better but he didn’t act any better?
DR. MARTELL: That’s correct, sir.
Dr. Auble was recalled and testified that she and Dr. Martell disagreed on
whether the petitioner had intermittent explosive disorder, whether impulsive behavior
can be purposeful and whether evidence of low serotonin, hypoglycemia and the
findings in the petitioner’s social history are significant mitigating factors. Dr. Auble
testified that the petitioner could have acted “purposefully in the grip of an emotional
impulse,” similar to the actions of people with impulse control disorders like pyromania,
kleptomania and pathological gambling. According to Dr. Auble, the crime in this case
was the product of an emotional impulse with low serotonin, intoxication and
21
hypoglycemia contributing to impair the petitioner’s inhibition of the emotional impulse.
Dr. Auble could not describe or identify any triggering event that caused
the petitioner to retreat to this emotional state. She testified that she and Dr. Martell
also disagreed about what personality disorder the petitioner has. She said Dr. Martell
believes the petitioner has antisocial personality disorder, whereas she believes he has
intermittent explosive disorder. Dr. Auble testified that the petitioner’s aggressive
outbursts did not occur only when the petitioner was intoxicated. She also testified that
the petitioner could have been in a dissociative state while intoxicated. However, Dr.
Auble said she could not identify any time during which the petitioner claimed to
blackout while not intoxicated. After reviewing some of the physical exhibits from the
original trial, Dr. Auble testified that the verbal description of the crime scene she
received was sufficient for her to form an opinion about the impulsive nature of the
crime without having viewed the exhibits. Based upon the foregoing proof, the trial
court denied the post-conviction petition.
Under the Post-Conviction Procedure Act in effect at the time the
petitioner filed his petition, the petitioner has the burden of proving the allegations in his
petition by a preponderance of the evidence. McBee v. State, 655 S.W.2d 191, 195
(Tenn. Crim. App. 1983). The trial court’s findings of fact and conclusions of law in
post-conviction cases are conclusive on appeal unless the appellate court finds that the
evidence preponderates against the findings. Black v. State, 794 S.W.2d 752, 755
(Tenn. Crim. App. 1990); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).
Furthermore, this court may not reweigh or reevaluate the evidence or substitute its
inferences for those drawn by the trial court. Black, 794 S.W.2d at 755. This includes
giving deference to the trial court concerning witness credibility. Id.
I. RECUSAL AND REASSIGNMENT
The petitioner contends that the trial judge conducting the post-conviction
evidentiary hearing erred by denying the petitioner’s motions to recuse the judge and to
have the case reassigned to the division of the trial court to which it was originally
assigned. The state contends that the issues are not properly before this court
because they have been previously determined against the petitioner. Alternatively, the
22
state contends that the trial court properly denied the petitioner’s motions.
Initially, we address the state’s contention that the issues were previously
determined against the petitioner. The state claims that the law of the case doctrine
precludes reconsideration of these issues on direct appeal because the petitioner
previously sought and was denied extraordinary review of these issues pursuant to
T.R.A.P. 10. The grant of a T.R.A.P. 10 application is conditioned upon a showing by
the appellant that “the lower court has so far departed from the accepted and usual
course of judicial proceedings as to require immediate review” or that immediate review
is necessary for complete determination of the action on appeal. If these requirements
are not met, the application for permission to appeal is denied. However, this court
does not necessarily reach the merits of the particular claims raised when it denies a
T.R.A.P. 10 application. Instead, the court decides whether the claims raised must be
addressed in an interlocutory or extraordinary fashion rather than subsequently on
direct appeal. In the present case, the court concluded that immediate, interlocutory
review was not necessary. Although the court’s order refers to the particular issues
raised, the court did not fully address the merits of the underlying claims. Accordingly,
we conclude that these issues were not previously addressed and are now properly
before us. See, e.g., State v. Ruane, 912 S.W.2d 766, 773-77 (Tenn. Crim. App. 1995)
(addressing the merits on direct appeal even though the appellant’s T.R.A.P. 10
application was denied and the order of denial referred to the underlying issue raised).
A. Motion to Recuse
The petitioner contends that because the trial court judge was employed
by the Office of the District Attorney General during the prosecution of the petitioner on
an earlier, separate matter, thereby giving the appearance of partiality, the judge should
have recused himself. The state contends that the trial court did not err by denying the
petitioner’s motion. We note that the trial court has discretion in determining whether to
grant a motion to recuse. The court’s decision will not be reversed on appeal unless
the face of the record reveals clear abuse. State v. Hines, 919 S.W.2d 573, 578 (Tenn.
1995).
Canon 3(E)(1), Rule 10, Tenn. Sup. Ct. R., provides as follows:
23
A judge shall disqualify himself . . . in a proceeding in which
the judge’s impartiality might reasonably be questioned,
including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a
party or a party’s lawyer, or personal knowledge of disputed
evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy,
or a lawyer with whom the judge previously practiced law
served during such association as a lawyer concerning the
matter, or the judge has been a material witness concerning it.
The commentary to this section provides:
A lawyer in a government agency does not ordinarily have an
association with other lawyers employed by that agency within
the meaning of Section E(1)(b); a judge formerly employed by
a government agency, however, should disqualify himself . . .
in a proceeding if the judge’s impartiality might reasonably be
questioned because of such association.
We hold that the petitioner has not demonstrated that the trial court
abused its discretion in denying the motion to recuse. The record reflects that although
the trial judge was present in the courtroom during a hearing in a previous proceeding
involving the petitioner, the judge stated that he merely received a copy of a motion
filed by defense counsel because the prosecutor handling the matter was unavailable at
the time. While the judge’s name appears on the cover of the transcript in the earlier
proceeding, no other mention of the judge’s participation in the earlier proceeding
exists. Moreover, the judge stated that he did not remember or know anything about
the petitioner or his cases.
Nothing in the record before us suggests that the trial judge’s impartiality
could reasonably be questioned. The judge sufficiently explained why his name
appeared on the cover of the transcript from the earlier proceeding involving the
petitioner. Although the petitioner claims that the trial court’s bias against him is
evidenced by the denial of the petitioner’s claims, adverse rulings by a court are
generally insufficient grounds to establish bias. Alley v. State, 882 S.W.2d 810, 820
(Tenn. Crim. App. 1994). The record is devoid of any suggestion that the trial judge
demonstrated antagonism toward the petitioner or expressed any opinion about the
merits of the proceeding before the hearing. See Id. at 821-22.
24
B. Motion to Reassign
The petitioner contends that his petition was transferred from one division
of the trial court to another in violation of local court rules and that the trial court should
have granted his motion to reassign the petition to the court in which it was originally
filed. The state contends that the trial court properly denied the motion.
Initially, we note that some discrepancy exists as to which court the
petition was originally assigned. The petitioner suggests that the petition was originally
assigned to Division IX of the Shelby County Criminal Court. However, the court
records reflect that the petition was filed in Division VII but that the trial judge in Division
VII had a conflict with the petitioner and asked Judge Craft of Division VIII to hear the
matter. The record shows that Judge Craft agreed, and the petition was heard in
Division VIII, the same division in which the original trial was conducted. However, the
trial judge who presided over the trial in Division VIII retired before the petitioner filed
the present petition.
Rule 4.03 of the Shelby County Criminal Court Rules requires that a
written order of transfer be filed to transfer a case from one division to another. The
record in the present case contains no written order of transfer. However, Rule 4.05
provides that “[t]he judges may transfer cases among themselves by mutual consent”
without the consent of the parties or counsel. Our reading of the record shows that this
is what occurred in the present case. Obviously, the better practice would have been
for a written order to have been filed. However, the petitioner has failed to demonstrate
that he was prejudiced by the lack of a written order. See T.R.A.P. 36(b).
II. INEFFECTIVE ASSISTANCE OF COUNSEL
The petitioner contends that his trial attorneys were ineffective at both the
guilt and sentencing phases of the trial. Specifically, the petitioner argues that his
attorneys failed to conduct an adequate investigation into his background, including his
mental and physical conditions. He argues that the attorneys’ deficient performance
precluded the jury from considering possible defenses during the guilt phase and
important mitigating evidence during sentencing. The state contends that the petitioner
received the effective assistance of counsel.
25
Under the Sixth Amendment, when a claim of ineffective assistance of
counsel is made, the burden is upon the petitioner to show (1) that counsel’s
performance was deficient and (2) that the deficiency was prejudicial in terms of
rendering a reasonable probability that the result of the trial was unreliable or the
proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied to the right to counsel under
Article I, Section 9, of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417,
419 n. 2 (Tenn. 1989).
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
decided that attorneys should be held to the general standard of whether the services
rendered were within the range of competence demanded of attorneys in criminal
cases. Further, the court stated that the range of competence was to be measured by
the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,
in reviewing counsel’s conduct, a “fair 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.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
We also note that the approach to the issue of the ineffective assistance
of counsel does not have to start with an analysis of an attorney’s conduct. If prejudice
is not shown, we need not seek to determine the validity of the allegations about
deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
Initially, we note that the petitioner contends that this court should adopt a
de novo standard of review when addressing ineffective assistance of counsel claims in
post-conviction appeals. He argues that the trial court’s findings with respect to
ineffective assistance are not binding on appeal because the issue involves a mixed
question of law and fact.
26
In Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997), our supreme
court stated the following relative to review of a trial court’s post-conviction
determinations following an evidentiary hearing:
The findings of fact of the trial judge on a petitioner for post-
conviction relief are afforded the weight of a jury verdict and
are conclusive on appeal unless the evidence in the record
preponderates against those findings. [Tidwell v. State, 922
S.W.2d 497, 500 (Tenn. 1996)]; Cooper v. State, 849 S.W.2d
744, 746 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990). In evaluating whether the evidence
preponderates against the trial court’s findings, we are guided
by longstanding rules of appellate procedure. Appellate courts
in this State do not reweigh or reevaluate the evidence. We
can not substitute our inferences for those drawn by the trial
judge. Moreover, questions concerning the credibility of
witnesses, the weight and value to be given their testimony,
and the factual issues raised by the evidence are to be
resolved by the trial judge. Finally, the party seeking to
overturn the findings of the trial judge bears the burden on
appeal of demonstrating why the evidence contained in the
record preponderates against the findings of the trial judge.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966);
Cooper, 847 S.W.2d at 527; Black v. State, 794 S.W.2d 752,
755 (Tenn. Crim. App. 1990). It is with these principles in mind
that we evaluate the findings of the trial court and the Court of
Criminal Appeals with respect to the petitioner’s claim of
ineffective assistance of counsel at sentencing.
The court stated that the issue before it was “whether the evidence in the record
preponderates against the trial court’s finding that the petitioner failed to establish that
he was denied his constitutional right to effective assistance of counsel.” 960 S.W.2d at
580. See also Richard C. Taylor v. State, No. 01C01-9709-CC-00384, Williamson
County (Tenn. Crim. App., July 21, 1999) (citing Henley and holding that the
appropriate standard of review is whether the evidence preponderates against the trial
court’s findings). In light of Henley and Taylor, we reject the petitioner’s claim that our
review should be de novo.
We are aware, however, that the Tennessee Supreme Court recently
used a de novo review standard in a direct appeal of a conviction when the issue of the
effective assistance of counsel was presented. See State v. Brenda Ann Burns, No.
W1996-00004-SC-R11-CD, Henry County, slip op. at 12 (Tenn. Nov. 8, 1999) (for
publication). Given the summary fashion in which the court addressed the standard of
review in Burns, we seriously doubt that it intended to overrule Henley and thirty years
of similar post-conviction jurisprudence. In any event, even if we are to use a de novo
27
standard relative to the question of whether the petitioner received the effective
assistance of counsel, we do not believe that the petitioner received the ineffective
assistance of counsel, given the underlying facts as found by the trial court.
A. Guilt Phase–Failure to Investigate
The petitioner contends that his trial attorneys were ineffective during the
guilt phase of his trial because they failed to investigate the petitioner’s low serotonin
and blood sugar levels and to explore a possible insanity defense. He argues that his
attorneys were ineffective by defending the case solely “on the merits.” The state
contends that the trial court correctly found that the petitioner received the effective
assistance of counsel.
The trial court found that the petitioner’s attorneys rendered effective
assistance, making the following findings and conclusions:
Petitioner was examined twice at the request of his attorneys
by a competent forensic psychologist, Dr. Wyatt Nichols, who
would not support a defense of insanity. Although not called
by either side at the hearing on this petition, Dr. Nichols
testified at petitioner’s trial that at the time of the trial he had
been practicing clinical psychology for eleven or twelve years,
with specialized training in forensic psychology. The State
stipulated to his qualifications, and he was accepted by the trial
court as an expert in the field of forensic psychology. The
constitutional requirements of Ake v. Oklahoma, 470 U.S. 68
(1985), were satisfied. Dr. Nichols testified at petitioner’s trial
that
A. . . . . It was my opinion that [petitioner] was
not criminally insane and did not appear to me to
suffer from a mental illness that was sufficient for
me to be concerned.
Sometimes people who are really
severely mentally ill will say they didn’t do it, but
in fact they may have and there’s a real severe
illness there that will interfere with their ability to
communicate. But I did not see that. So it was
my final opinion that he failed the Graham Vs.
State test, and so basically he was criminally
responsible.
Q. Does that mean that he -- that you didn’t see
any psychological problems at all?
A. No. It doesn’t mean that. It just means that
he didn’t meet the Graham Vs. State criteria that
I mentioned earlier as far as a mental illness.
There was no indication at the time of petitioner’s trial that Dr.
28
Nichols’ opinion was in any way impeachable, and the
attorneys therefore had no “specialized need” for further
evaluation that they could have given the trial court on the
issue of an insanity defense during the guilt phase . . . .
Mr. Ball . . . testified that in his experience, insanity
defenses aren’t very successful, and that he would have to
basically admit to the murder, but say petitioner was not legally
responsible for it. On redirect, he testified that even though he
had no expert proof to rebut the fingerprint evidence, the proof
at the trial was that petitioner had been at the victim’s house
before, having known the victim and having hung around with
her grandson. (The garage petitioner worked at was owned by
Mike Lucas, the employer, friend and drug partner of petitioner.
He was also the step-grandson of Ms. Skinner.) Mr. Ball felt
the case could have been won.
. . . . Eliminating the “distorting effect of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time,” Strickland at 689 and Hellard at 9, it
would have been extremely risky to have attempted a defense
of insanity, in light of the entirely circumstantial proof offered,
even if an expert witness who would support an insanity
defense could have been found, knowing that Dr. Nichols in
that event would then be called as a state’s witness against the
petitioner.
This Court finds that not only were petitioner’s attorneys
not deficient in their performance during the guilt phase on the
issue of insanity, but that there has also been no showing of
prejudice to petitioner.
....
Petitioner has completely failed to carry his burden of
proving that his attorneys 1) should have known to file a
motion for additional psychological assistance on the issue of
insanity, 2) that his attorneys could have shown a specialized
need for that assistance, if requested, 3) that the expert
assistance, had it been granted, would have revealed a
chemical imbalance in petitioner’s system, and 4) if it had, that
a viable theory of [insanity] could have been made out to the
jury that would have been better than the defense actually
tried. Petitioner has not shown that there is a reasonable
probability (a probability sufficient to undermine confidence in
the outcome) that but for counsel’s not asking for additional
psychological assistance, the result of the guilt phase would
have been different. Strickland, at 694. Petitioner has not
established either prong of the Strickland test, either deficiency
or prejudice, in the guilt phase, and therefore this allegation is
without merit.
We hold that the petitioner has failed to establish that the record
preponderates against the trial court’s findings. Mr. Ball testified that the petitioner
could carry on intelligent conversations and that the petitioner did not act out of touch
with reality. Mr. Ball further testified that the petitioner did not want to pursue an
insanity defense. The petitioner was examined twice by Dr. Nichols, and although he
29
recommended further testing to discover the extent of the petitioner’s mental condition,
he stated that his findings would not support an insanity defense. Thus, the petitioner
has not shown that his attorneys would have been able to demonstrate a specialized
need for further evaluation of the petitioner to pursue an insanity defense.
B. Sentencing Phase–Failure to Investigate and Request Expert Services
The petitioner contends that his attorneys were ineffective during the
sentencing phase of trial. He argues that the attorneys failed to investigate fully the
petitioner’s background and failed to seek expert mental services for mitigation until the
trial had already begun. The petitioner argues that the jury might have returned a life
sentence if it was presented with the evidence regarding the petitioner’s low serotonin
level, hypoglycemia and alcohol addiction, as well as more detailed information about
the petitioner’s tumultuous relationship with his family, particularly his mother. The
state contends that the attorneys were not deficient and that the petitioner has failed to
demonstrate prejudice. Regarding the presentation of mitigating evidence during the
capital cases, our supreme court has stated as follows:
Where the alleged prejudice under Strickland involves
counsel’s failure to present mitigating evidence in the penalty
phase of a capital trial, several factors are significant. First,
courts have analyzed the nature and extent of the mitigating
evidence that was available but not presented. Second, courts
have considered whether substantially similar mitigating
evidence was presented to the jury in either the guilt or penalty
phase of the proceedings. Finally, the courts have considered
whether there was such strong evidence of aggravating factors
that the mitigating evidence would not have affected the jury’s
determination.
Goad v. State, 938 S.W.2d 363, 371 (Tenn. 1990) (citations omitted).
First, we will address the petitioner’s contention that his attorneys were
ineffective for failing to conduct further investigation into his social background for
mitigation evidence at the sentencing phase. We believe that the petitioner has
demonstrated neither deficiency nor prejudice. With respect to the attorneys’ failure to
secure the petitioner’s school records, Mr. Ball testified that both he and the public
defender requested but never received the materials. Mr. Ball testified that he went to
Louisiana and spoke with the petitioner’s family but that he was not allowed access to
the petitioner’s mother. He testified that during his interviews with the petitioner’s father
and brothers, he learned that the petitioner was severely abused as a child. Defense
30
counsel presented this evidence during the sentencing phase of the trial, along with
evidence of the petitioner’s enuresis and the problems associated with it and the
petitioner’s abuse of alcohol and drugs. The trial court’s order denying post-conviction
relief states the following:
This brief summary of the high points in the mitigation
evidence presented in petitioner’s trial does not adequately
reflect the quality or extent of the proof offered. Altogether,
petitioner presented 167 pages of transcript in mitigation
during the sentencing phase. Much of it was highly emotional,
and even from a cold reading of the transcript seven years
later this Court was moved by petitioner’s account, and his
brothers’ accounts, of his tragic childhood.
The petitioner has failed to show that his attorneys did not adequately investigate and
present his social history, nor has he shown a reasonable probability that, had they
performed further investigation, the outcome of the sentencing phase would have been
different.
With respect to the petitioner’s contention that his attorneys were
ineffective for failing to request expert mental services for mitigation until after the trial
had started, the trial court found that the attorneys were deficient. The trial court stated
that because Dr. Nichols suggested additional neurological testing to explore the
petitioner’s mental condition, the trial judge “would most likely have given the attorneys
funds for this neurological workup and also a continuance to obtain it.” However, the
trial court found that the petitioner failed to demonstrate prejudice. The trial court
determined that all of the proof raised at the evidentiary hearing was presented at the
mitigation hearing, except for the evidence of the petitioner’s hypoglycemia, low
serotonin, and the effects of the two when combined with alcohol and drugs. The trial
court determined that even if the petitioner had been further evaluated, it is unlikely that
his serotonin and glucose levels would have been tested. The trial court found that
substantially similar mitigating evidence was presented at trial in that Dr. Nichols
testified that the petitioner may have had an organic brain impairment that interfered
with his ability to control urges. Finally, the trial court determined that the strong
evidence of other aggravating factors shows that the mitigating evidence would not
have affected the jury’s determination. See Goad, 938 S.W.2d at 371.
The record supports the trial court’s finding of deficient performance. The
31
petitioner’s attorneys originally made an ex parte motion for expert services that was
denied for failure to comply with Rule 13, § 2(B)(10), Tenn. Sup. Ct. R. Then, in what
the trial court characterized as a last ditch effort to secure expert services, the attorneys
presented a letter from Dr. Nichols to support their specialized need for evaluation, and
they requested a continuance in order to conduct the evaluation. However, they did not
present the letter until the fifth day of trial. As the trial court stated in its order denying
the post-conviction petition, “[w]hen proof of a specialized need is not obtained until the
fifth day of trial, however, there is not much likelihood that a continuance will be
granted.” The petitioners have provided no reason why this letter or an affidavit from
Dr. Nichols was not presented before trial. Failure to investigate, follow up, and present
evidence of a history of mental problems for use at the sentencing phase of a capital
case is deficient performance. Cooper v. State, 847 S.W.2d 521, 530-32 (Tenn. Crim.
App. 1992).
Despite the attorneys’ deficiency, the petitioner has failed to demonstrate
that the record preponderates against the trial court’s determination of no prejudice.
Most significant is the fact that the petitioner has not shown that if the evaluation
suggested by Dr. Nichols had been performed, evidence of the petitioner’s
hypoglycemia or low serotonin would have been discovered. The trial court found as
follows:
[A]t the time of petitioner’s trial in 1990, the “low serotonin”
defense and the “low blood sugar” defense were relatively
unknown. There were only three significant articles
produced by petitioner that had been published in this area
in scientific journals. . . . It is clear that the relationship
between serotonin and impulsive behavior was not widely
known in 1990. Dr. Auble had not yet attended any
seminars in forensic psychology at the time of petitioner’s
trial, and Dr. Martell had not yet published any of his articles
on the relationship between serotonin and violent behavior.
Dr. Nichols had suggested to the attorneys that a “Q Beam”
or an “MRI” be performed . . . . Both Drs. Auble and Martell
agree that those tests would have turned up nothing useful
in petitioner’s defense had the attorneys requested and
obtained funds for them. No one at any time ever suggested
to petitioner’s trial attorneys that they test the chemical
balance of his spinal fluid.
They could hardly have been expected to have been familiar
with 5-Hydroxyindoleacetic Acid, or to have read any of those
three articles on their own.
In light of the fact that the “low serotonin” and “low blood sugar” research and theories
were not widely known and that Dr. Nichols’ suggested evaluation did not contemplate
32
testing for such imbalances, the petitioner has not demonstrated a reasonable
probability that but for his attorneys’ deficiency in failing to request expert services in a
timely fashion, the outcome of the sentencing phase would have been different.
In making this determination, we are also mindful of the principles set forth
in Goad. The trial court made the following determinations with respect to these
principles:
The first question to be considered under Goad . . . is
the nature and extent of the mitigating evidence that was
available but not presented. Except for proof at the hearing on
this petition of petitioner’s low serotonin levels and low glucose
tolerance level, and their effect on petitioner when combined
with drug and alcohol use, all other proof of mitigation raised
by petitioner in the hearing on this petition had already been
presented at trial by his attorneys, in one form or another,
through jail records, lay witnesses, family members of
petitioner, and Dr. Nichols. . . .
The second consideration under Goad is “whether
substantially similar mitigating evidence was presented to the
jury in either the guilt phase or penalty phase of the
proceedings.” The possibility that petitioner had these
problems due to a medical or psychological condition was
presented to the jury during mitigation proof by Dr. Nichols. He
testified that
Mr. Cazes’s behavior as far as his history of
chemical dependency which causes brain
damage over an extended period of time like
he’s abused chemicals, plus even before he
started abusing chemicals he had a lot of
difficulties with impulse control, rages, becoming
angry for no apparent reason, and becoming –
going into a rage and being destructive at times.
And people who have these problems, a fairly
high number of them have neurological
problems.
What I mean by neurological problems,
some kind of organic impairment with their brain
that interferes with their ability to control an urge,
a momentary urge. Not necessarily that it would
interfere with their ability to plan out something
over a long term, but any time their affect or their
feelings are elevated, be it anxiety, be it anger,
be it excitement, they’re happy about something
just like a little child at Christmas may get into a
lot more trouble because they’re real excited
about things, well, they’re having impulse control
problems. Well, that’s what I’m talking about
here, that when his affect is up, his feeling level
is up, then he may have more difficulty or he
does have more difficulty controlling himself.
There’s a possibility that that is due to
some brain impairment or organic impairment .
...
33
Even though we know now, after petitioner has been
thoroughly tested, that he had no significant brain damage due
to drug use or head trauma, still the jury was told that it was a
distinct possibility that many of his problems were caused by
a condition out of his control.
The third Goad consideration is “whether there was such
strong evidence of aggravating factors that the mitigating
evidence would not have affected the jury’s determination.”
Assuming therefore, that the attorneys had properly and timely
requested and received funds, and time, to further evaluate
petitioner, and that they had in fact found an expert who was
acquainted with the relationship between serotonin and
impulsive behavior, and petitioner decided to present that
mitigation evidence to the jury (that a combination of low
serotonin, low blood sugar, extensive substance abuse, tragic
childhood and hatred of women had all combined to make
petitioner not responsible for his actions), the state would have
been able to rebut that theory with petitioner’s history of
continued violence in a prison setting while awaiting trial,
during a time when he had a raised serotonin level, was not on
junk food, and was not using alcohol or illegal drugs. This
violent behavior would most likely have alienated the jury. An
important part of this theory of petitioner also concerns his
hatred of women and his continued violence toward them, a
rage which was “triggered” by an “emotional memory,”
compelling him to rape and murder Ms. Skinner in a “fugue
state.” This would have also tended to alienate the jury, and
in view of the aggravating circumstance offered in this trial that
petitioner had been convicted of the Aggravated Rape and
Attempted Murder of another woman which was committed
after the murder of Ms. Skinner, may have practically ensured
a sentence of death.
....
Considering the nature of the omitted mitigation, necessarily
involving petitioner’s hatred of women and his lack of control
even when not on drugs, alcohol, junk food and low serotonin,
as compared to the strong aggravating factors [1) “heinous,
atrocious and cruel,” in that the crime involved a driving to the
scene, a systematic, premeditated breaking into the home of
a known elderly victim, an extremely bloody, brutal murder and
rape . . . ., plus 2) “prior convictions for crimes of violence” in
that petitioner, after raping and killing Ms. Skinner, committed
and was convicted of another Aggravated Rape and Assault
to Murder] petitioner has failed to show prejudice. . . . “Given
the overwhelming aggravating factors, there is no reasonable
probability that the omitted evidence would have changed the
conclusion of the jury that the aggravating circumstances
outweighed the mitigating circumstances and hence, the
sentence imposed.” Strickland, at 697.
Considering the petitioner’s inability to demonstrate even a possibility that serotonin
and blood sugar testing would have been performed and considering the principles set
forth in Goad and their application to this case, we conclude that the petitioner has not
demonstrated prejudice.
C. Petitioner’s Right to a Limited Cross-examination
34
The petitioner contends that his attorneys were ineffective for failing to protect
his right to a limited cross-examination during the sentencing phase of trial. He
contends that he wanted to testify at the sentencing phase about his background
without being subject to cross-examination regarding details of the crime and that his
attorneys filed a motion to prevent the state from asking questions about the crime,
which the trial court denied. The petitioner argues that his attorneys offered no support
for their motion and inadvertently waived the issue for appeal by asking the petitioner
what he remembered about the day of the murder.
On direct appeal, our supreme court acknowledged that “in the limited
sphere of a death penalty sentencing hearing, a capital defendant’s testimony regarding
mitigating factors that are wholly collateral to the merits of the charges against him does
not operate as a complete waiver of the privilege against self-incrimination.” Cazes,
875 S.W.2d at 266. Nevertheless, the court determined that the petitioner was not
prejudiced by the cross-examination because the petitioner could not recall anything
about the crime. Id. Similarly, in denying post-conviction relief, the trial court concluded
that the “state’s cross-examination was therefore effectively limited by petitioner’s
testimony that he lacked any knowledge of the circumstances of the offense.” The
petitioner has not demonstrated that the record preponderates against this finding.
D. Conceding Premeditation
The petitioner contends that counsel were ineffective during closing argument
at sentencing because they mentioned that the jury had already found premeditation.
The petitioner contends that because he was convicted of felony murder, which does
not require premeditation, this erroneous reference by counsel resulted in prejudice.
The petitioner offers no support for this argument, and we hold that it is without merit. A
review of the closing argument shows that counsel focused not on the crime itself but
on mitigation. The petitioner has not demonstrated prejudice.
E. Failure to Raise all Issues on Appeal
The petitioner contends that his attorneys were ineffective on appeal for
failing to raise all issues. Specifically, he contends that the attorneys should have
argued that (1) the jury’s finding of the “prior violent felony” aggravating circumstance
35
violated the ex post facto and due process clauses of the Tennessee and United States
Constitutions, (2) the reasonable doubt jury instruction violated the due process clause
of the United States Constitution, and (3) the manner in which appellate courts conduct
harmless error analysis in capital cases violates state guarantees of trial by jury and
federal guarantees of due process. Our supreme court has previously determined that
these issues are without merit. See King v. State, 992 S.W.2d 946 (Tenn. 1999); State
v. Bigbee, 885 S.W.2d 797, 817 (Tenn. 1994); State v. Nichols, 877 S.W.2d 722, 734
(Tenn. 1994); State v. Howell, 868 S.W.2d 238 (Tenn. 1993).
III. IMPARTIAL JURY
The petitioner contends that he was denied the right to an impartial jury
because the trial court refused to allow individual, sequestered voir dire concerning
pretrial publicity. In conjunction, he argues that his attorneys were ineffective for failing
to include examples of pretrial publicity in the record for appeal.
With respect to the petitioner’s claim of ineffective assistance of counsel,
the petitioner claims that his attorneys failed to include examples of the pretrial publicity
in the record for appeal. The petitioner argues that this precluded the supreme court
from adequately addressing the jury voir dire issues on appeal. However, this particular
claim was neither included in the post-conviction petition below nor addressed by the
trial court. Accordingly, this issue is not properly before this court and is waived. See
Tenn. Code Ann. § 40-30-112 (1990); Butler v. State, 789 S.W.2d 898, 902 (Tenn.
1990); Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App. 1996). Regardless, the
petitioner has failed to establish prejudice.
“Individual voir dire is mandated only when there is a ‘significant
possibility’ that a juror has been exposed to potentially prejudicial material.” State v.
Harris, 839 S.W.2d 54, 65 (Tenn. 1992) (citing State v. Porterfield, 746 S.W.2d 411,
447 (Tenn. 1988)). The decision of the trial court to deny individual voir dire of the
venire remains within the sound discretion of the court and will not be reversed on
appeal absent a finding of manifest error. Howell, 868 S.W.2d at 247-48. The
petitioner must demonstrate that the jurors were biased or prejudiced against him
36
because of the pretrial publicity. State v. Melson, 638 S.W.2d 342, 360-61 (Tenn.
1982). Mere exposure to news accounts of the incident does not, standing alone,
establish bias or prejudice. Prospective jurors can have knowledge of the facts
surrounding the crime and still be qualified to sit on the jury. State v. Bates, 804
S.W.2d 868, 877 (Tenn. 1991). The test is “whether the jurors who actually sat and
rendered verdicts were prejudiced by the pretrial publicity.” State v. Kyger, 787 S.W.2d
13, 18-19 (Tenn. Crim. App. 1989).
In support of his claim, the petitioner relies upon State v. Claybrook, 736
S.W.2d 95 (Tenn. 1987) and State v. Shepherd, 862 S.W.2d 557 (Tenn. Crim. App.
1992). In both of these cases, the court determined that the trial court’s refusal to allow
individual, sequestered voir dire was prejudicial error because the prospective jurors
admitted that they knew the defendants had been charged with or convicted of other
crimes. In Claybrook, the court determined that the need to conduct individual,
sequestered voir dire became apparent “when it was made known to the trial court that
80% of the first group of prospective jurors had heard information regarding the
defendant’s case, two members of that initial panel mentioned in the presence of other
prospective jurors that they had heard that the defendant had been in prison before.”
736 S.W.2d at 100.
In the present case, however, the jurors were not questioned about their
knowledge of the petitioner’s previous record. Additionally, as the trial court noted in
denying post-conviction relief, “[o]f the prospective jurors examined, approximately
twenty-five percent had been exposed to some pretrial publicity about this case . . . .”
The record establishes that only two of the jurors who heard the petitioner’s case had
been exposed to pretrial publicity, and unlike Claybrook, no evidence exists that the
jurors heard information that the petitioner had previously been in jail. The empaneled
jurors stated that they could render an impartial verdict based solely upon the evidence
presented at trial. Thus, the petitioner has not demonstrated, as is required, that the
jurors who actually heard his case were biased or prejudiced because of pretrial
publicity.
37
Finally, we note that in his reply brief, the petitioner asserts in a footnote
that Rule 606(b), Tenn. R. Evid., effectively precluded him from demonstrating prejudice
by disallowing the testimony of jurors at the evidentiary hearing. He relies upon Henley
v. State, 960 S.W.2d 572 (Tenn. 1997). In Henley, the petitioner presented affidavits
from jurors at the evidentiary hearing stating that they were swayed against the
petitioner because his mother did not testify during the sentencing phase of a capital
trial. The court concluded that the affidavits were not admissible because they “related
to the precise subject matter about which a juror is strictly forbidden from testifying by
Rule 606(b)- the effect of the mother’s failure to testify on the jury verdict.” 960 S.W.2d
at 581. However, we do not believe that the holding in Henley precludes the use of
juror affidavits to prove prejudicial exposure to pretrial publicity. See, e.g., Claybrook,
736 S.W.2d at 100-01 (holding that jurors’ testimony regarding exposure to pretrial
publicity allowed at motion for new trial); State v. Robert Emmet Dunlap, Jr., No.
02C01-9801-CC-00009, Henry County (Tenn. Crim. App. Sept. 21, 1998) (holding that
the “extraneous prejudicial information” exception to the admissibility of juror testimony
includes a juror’s personal knowledge of an accused’s prior criminal record).
IV. USE OF AGGRAVATING CIRCUMSTANCE
The petitioner contends that the use of his previous convictions for
aggravated rape and assault with intent to murder, based on conduct that occurred
after the present offenses but for which the petitioner was convicted before the present
offenses, violates the due process and ex post facto clauses of the state and federal
constitutions.
The petitioner committed the crimes against Ms. Skinner at issue in this case
in April 1988. In June 1989, the petitioner committed separate offenses of attempted
murder and aggravated rape, and he was convicted of these crimes before the trial in
the present case. The state relied upon these previous convictions as an aggravating
circumstance. See Tenn. Code Ann. § 39-2-302(I)(2).
The petitioner contends that using convictions for crimes committed after the
offense in the present case to enhance his punishment in the present case violates due
38
process and ex post facto. Our supreme court rejected the same argument in State v.
Caldwell, 671 S.W.2d 459, 465 (Tenn. 1984). In Caldwell, the court stated:
The Defendant avers that it was error for the Trial Court to
allow the introduction of his conviction for first degree murder
in the Lipford case as an aggravating circumstance in this
case, since the Lipford murder occurred after the [murder in
this case].
....
Caldwell claims that using the subsequent murder as an
aggravating circumstance permits an ex post facto law. The
language in the statute, “previously convicted” clearly indicates
that the date of the conviction, not of the commission of the
crime, is the important factor. The order in which the crimes
were actually committed is irrelevant, as long as the
convictions have been entered before the sentencing hearing
at which they are introduced into evidence.
Id. at 464-65; see also State v. Hodges, 944 S.W.2d 346, 357 (Tenn. 1997) ( “We have
previously held on numerous occasions that so long as a defendant is convicted of a
violent felony prior to the sentencing hearing at which the previous conviction is
introduced, this aggravating circumstance is applicable.”). In the present case, the
aggravating circumstance was in effect at the time the petitioner committed the crimes
against Ms. Skinner. In addition, Caldwell provided further notice to the petitioner that
future convictions could be used to enhance punishment, regardless of when the
criminal acts underlying the convictions were committed. This issue is without merit.
V. EXCULPATORY EVIDENCE
The petitioner contends that the state withheld police reports containing
exculpatory information in violation of Brady v. Maryland, 370 U.S. 83, 83 S. Ct. 1194
(1963). He argues that the information in the police reports was exculpatory, claiming
that it provided substantial clues that should have led the trial attorneys to investigate
petitioner’s mental condition. The state contends that the prosecutor was not required
to disclose the complete police investigation and that, in any event, the information
contained in the reports was not exculpatory.
The state has a duty to furnish exculpatory evidence to the accused, and any
“suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83
39
S. Ct. at 1196-97. This evidence may pertain to the guilt or innocence of the accused
or to the punishment which may be imposed if the accused is convicted of the crime.
See State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). Moreover, this
duty to disclose extends to all favorable information regardless of whether the evidence
is admissible. Branch v. State, 469 S.W.2d 533, 534 (Tenn. Crim. App. 1969).
Although Brady does not require the state to investigate for the defendant, it does
burden the prosecution with the responsibility of disclosing statements of witnesses
favorable to the defense. State v. Reynolds, 671 S.W.2d 854, 856 (Tenn. Crim. App.
1984). The duty does not extend to information that the defense already possesses or
is able to obtain or to information not in the possession or control of the prosecution.
Banks v. State, 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977). Similarly, there is “‘no
constitutional requirement that the prosecution make a complete and detailed
accounting to the defense of all police investigatory work on a case.’” State v. Walker,
910 S.W.2d 381, 389 (Tenn. 1995) (quoting Moore v. Illinois, 408 U.S. 786, 92 S. Ct.
2562 (1972)).
In order to establish a Brady due process violation, the following elements
must be proven:
(1) The defendant must have requested the information
(unless the evidence is obviously exculpatory, in which case
the State is bound to release the information whether
requested or not);
(2) The State must have suppressed the information;
(3) The information must have been favorable to the accused;
and
(4) The information must have been material.
State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). In Edgin, our supreme court
adopted the following standard for materiality:
[T]here is constitutional error “if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.”
....
“[The] touchstone of materiality is a ‘reasonable probability’ of
a different result, and the adjective is important. The question
is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting
in a verdict worthy of confidence. A ‘reasonable probability’ of
a different result is accordingly shown when the Government’s
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evidentiary suppression ‘undermines confidence in the
outcome of the trial.’”
902 S.W.2d at 390 (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1556
(1995)).
The petitioner’s attorney testified at the evidentiary hearing that he never
received copies of the police reports. Gloria Shettles testified that she interviewed the
persons named in the report and that they stated that the petitioner was an excellent
worker; did not take criticism well; was impatient, emotional and impulsive; and would
become angry and out of control when he was drinking. The trial court dismissed the
claim, finding that the petitioner did not specifically define his issue and offered
insufficient proof to support his allegations.
We believe that the petitioner’s claim fails because he has not established
that he was unable to obtain the information himself, that the evidence was favorable,
or that the information was material. The information contained in the police reports is
general background information of the petitioner’s demeanor, provided by the
petitioner’s friends, acquaintances and former employers. Because the information
came from people the petitioner knew, there is no reason why he could not have
obtained the information himself. Additionally, the information does not contain direct
exculpatory information. Despite the petitioner’s argument that the information could
have led his attorneys to investigate the petitioner’s mental status further, the police
reports do not provide any additional information of which the attorneys were not
already aware at trial. Furthermore, we believe that the petitioner has not
demonstrated a reasonable probability that the result of the proceeding would have
been different had his attorneys been aware of the reports. We have previously
determined that the trial court properly found against the petitioner regarding his claim
of ineffective investigation into a possible insanity defense. Thus, the petitioner has
failed to show that the information is material.
VI. REASONABLE DOUBT JURY INSTRUCTION
The petitioner contends that the reasonable doubt jury instructions at both
phases of his trial were unconstitutional because the trial court used the term “moral
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certainty” and excluded from the definition a “doubt that may arise from possibility.” The
reasonable doubt jury instructions contested by the petitioner were upheld as
constitutional. See Carter v. State, 958 S.W.2d 620, 625 (Tenn. 1997); Nichols, 877
S.W.2d at 734. This issue is without merit.
VII. CUMULATIVE EFFECT OF ERROR
The petitioner contends that the cumulative effect of all the alleged
constitutional errors resulted in the petitioner being deprived of a fair trial. See State v.
Cadle, 634 S.W.2d 623, 626 (Tenn. Crim. App. 1982). Considering our rulings in this
case, we conclude that no errors exist that cumulatively would deprive the petitioner of
a fair trial. See Rosenthal v. State, 292 S.W.2d 1, 4-5 (Tenn. 1956).
VIII. HARMLESS ERROR ANALYSIS
The petitioner contends that the Tennessee Supreme Court’s harmless
error analysis on direct appeal with respect to the jury’s erroneous application of the
felony murder aggravating circumstance violated his right to a jury determination of
sentencing and to due process of law. He argues that Tennessee law creates a due
process liberty interest in jury resentencing that precludes the court’s application of a
harmless error analysis when the sentencing jury has considered an invalid aggravating
circumstance. This argument has been rejected by our supreme court. See Boyd v.
State, 959 S.W.2d 557, 560 (Tenn. 1998) (holding that a jury’s reliance on an invalid
felony murder aggravating factor does not require a resentencing hearing if the
reviewing court concludes beyond a reasonable doubt that the sentence would have
been the same had the jury given no weight to the invalid aggravating factor). This
issue is without merit.
IX. IN CAMERA REVIEW OF PROSECUTOR’S FILES
The petitioner contends that the trial court erred by failing to conduct an in
camera review of the prosecutor’s files regarding other crimes with which the petitioner
had been charged. The petitioner sought to review the files to find information
pertaining to his post-conviction issues, particularly the issue of his mental state, but the
trial court denied the motion. The files pertain to alleged acts of child sexual abuse,
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and the trial court denied the request pursuant to Tenn. Code Ann. § 37-1-612, which
prohibits the disclosure of all records concerning reports of child sexual abuse. The
statute provides limited circumstances under which disclosure may be allowed, but the
trial court determined that those circumstances did not apply in this case.
The petitioner cites Munke v. Munke, 882 S.W.2d 803, 804 (Tenn. Ct.
App. 1994), to support his contention that the trial court was required to conduct an in
camera inspection. However, in that case, the court held that an inspection was
required under the statutory exception to disclosure “for the purpose of protecting a
child or children from child abuse or child sexual abuse . . . .” Tenn. Code Ann. § 37-1-
612(h). This exception does not apply to the petitioner’s case. This issue is without
merit. See, e.g., State v. Caughron, 855 S.W.2d 526, 541 (Tenn. 1993) (holding that a
trial court is not required to review the entire prosecutor’s file absent a specific showing
from the petitioner).
In consideration of the foregoing and the record as a whole, the judgment
of the trial court is affirmed.
______________________________
Joseph M. Tipton, Judge
CONCUR:
________________________________
Gary R. Wade, Presiding Judge
________________________________
Thomas T. Woodall, Judge
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