IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE August 12, 1999
Cecil Crowson, Jr.
NOVEMB ER SESSION, 1998 Appellate C ourt
Clerk
DAVID LEE McNISH, ) C.C.A. NO. 03C01-9712-CR-00550
)
Appe llant, )
)
) CARTER COUNTY
VS. )
) HON. JOHN K. BYERS,
STATE OF TENNESSEE, ) SENIOR JUDGE
)
Appellee. ) (Post Con viction—D eath Pena lty)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF CARTER COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
PAUL N. BUCHANAN, JOHN KNOX WALKUP
Post-Con viction Defende r Attorney General and Reporter
Staff Attorney
500 Deaderick Street MICHAEL E. MOORE
Nashville, TN 37243 Solicitor General
MARK SLAGLE PETER M. COUGHLAN
302 Sun set Drive Assistant Attorney General
Johnson City, TN 37604 425 Fifth Avenu e North
Nashville, TN 37243
DAVID CROCKETT
District Attorney General
H. GREELEY WELLS, JR.
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, David Lee McNish, appeals the decision of the trial court
denying him post-co nviction relief from his sentence of death for the premeditated
first degree m urder of the seve nty-year-o ld victim, Gla dys Sm ith. The fa cts
presented at trial are reproduced below from the decision of the Tennessee
Supreme Court on direct appeal affirming Defendant’s conviction and sentence
in State v. McNish, 727 S.W .2d 490 (Tenn . 1987). F or the rea sons se t forth in
this opinion , we affirm th e trial court’s d enial of po st-convictio n relief.
In this appeal, De fendant argu es eight prima ry issues: (1) the trial court
denied Defendant’s right to a full and fair hearing by improperly conducting the
post-conviction proceedings; (2) the trial court erred by ruling that evidence of
former Deputy Foster’s prior convictions and concealment did not constitute
mate rial, exculpatory information within the knowledge and control of the State;
(3) the trial court erred by precluding the testimony of Juror Archie Parlier at the
post-conviction hearing because the testimony was admissible to show that the
jury at trial was improperly influenced by extraneous information; (4) the trial cou rt
erred by ruling that trial and appellate counsel’s prejudicial, deficient
representation did not constitute a violation of Defendant’s right to effective
assistance of counsel; (5) the trial cou rt erred by ruling that the heinous,
atrocious, or crue l aggra vating fa ctor us ed in th is case is constitutio nal; (6) dea th
by electrocution is cruel and unusual punishment which violates the Eighth
Amendment to the United States Constitution and Article I, Section 16 of the
Tennessee Constitution; (7) the jury instruction at the pen alty phase limited the
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jury’s consideration of mitigation, denying Defendant his right to individualized
sentencing as guaranteed by the Sixth, Eighth, and Fourtee nth Am endm ents to
the United States Constitution and Article I, Sections 6, 8, 9, and 16 of the
Tennessee Constitution; and (8) the trial court erred by ruling that several issues
raised in D efenda nt’s post-c onviction p etition were waived.
The recitation of facts contained in the decision of the Tennessee Supreme
Court on De fenda nt’s dire ct app eal is consistent with the facts gleaned from a
thorough review of the record in this case. Therefore, we summarize the court’s
findings here as follows:
Mrs. Smith [the victim] lived alone in an u pstairs apartm ent in
the Lynnwood Apartments in Elizabethton, Tennessee. The parents
of appellant had an apartment in the same complex of apartment
buildings, as did Mrs. Selena Richardson (who was at that time Mrs.
Selena Welch), whom appellant had be en dating . [Appellan t]
testified that he was a lso a frie nd of the deceased and had been
very attentive to her needs, frequently running errands for her and
otherwis e assisting her. . . .
Since 1974 [Appellant] had used prescription drugs rather
heavily because he suffered from headaches that grew out of
injuries in an automobile accident during that year. He also testified
that he purchased stree t drugs from tim e to tim e. Hav ing little
income, he sometimes borrowed a few dollars from friends,
including Mrs. Sm ith.
At about 8 p.m. on April 5, 1983, Mrs. Smith was b rutally
beaten about the head and face with a glass vase, the fragments of
which were found in her apartment. . . . The vase itself was
shattered by the blows, and the victim’s sk ull was fracture d in
several places. Hemorrhaging of the brain resulted which
compressed the brain stem and prevente d breath ing. Mrs. S mith
died within a short time after the beating, although she was still alive
when firs t found afte r it occurred .
Appellant had take n a num ber of slee ping tablets and other
drugs during the day on April 5 to relieve a heada che, acc ording to
his testimony. He had, however, conducted normal activities during
that day, having visited Mrs. Welch’s apartment at least twice and
kept her infant son for a few hours. At about 6:20 p.m. he borrowed
her automobile and left the apartment for the purpose of borrowing
some money. He returned about 7 p.m. and spoke with two
acquaintances in a parking lot of the ap artment com plex. The three
agreed to meet later at the apa rtment o f one of the se me n to watch
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television. Appe llant told his friend that he needed to borrow some
money to purch ase be er and th at he m ight try to borrow the money
from M rs. Smith .
Shor tly before 8 p.m. G reg Pe ters, who lived with his w ife and
infant child in the apartme nt next to Mrs. Smith, heard loud thumping
noises in her apartment. He went outside on the balcony and then
heard the sound of glass breaking and moans emanating from her
apartm ent. He testified that as he reached for the door, appellant
rushed out of the apartment exclaiming that Mrs. Smith had fallen
and was hurt. Peters went inside and found Mrs. S mith, s till partially
conscious, lying in the kitchen in a pool of blood, with broken glass
from a shattered flowe r vase scattered on the floor. Peters ran
outside a nd called for help.
Mr. Frank Garland, who lived in the apartmen t directly
benea th Mrs. Smith, also heard noises from her apartment. He then
heard Peters calling for help, and he saw appellant McNish coming
down the steps from the upstairs a partme nts. He saw nothing
unusual in the appearance of appellant at that time. He testified that
appellant stopped and spoke to the son of a Mrs. Irene Nave, who
lived in the apa rtment n ext to Garland. He also spoke to Mrs. Nave
briefly at the doorway and then went to the parking lot and drove
away in Mrs. Welch’s automobile. Other witnesses testified that
appellant drove away rapidly. Hearing Peters call again for
assistance, Garland went upstairs where he found Mrs. Sm ith
unconscious in her kitchen. He attempted to call for help and had
his wife su mm on the p olice. . . .
Appellant drove Mrs. Welch’s automobile some mile and
one-h alf to two miles to the reside nce o f his form er wife, M rs. Jan ie
Bradley. He had a mishap en route, near a cemetery, and damaged
the car slightly. He also claimed that he received some minor
injuries in this accid ent. W hen he reache d the residence of Mrs.
Bradley, she te stified that his speech was slurred and that he
appeared to som e extent to be under the influence of a drug or
narcotic. He told her that he had taken a number of pills, that he
had wrecked Mrs. Welch’s car, and that he had been in a fight with
someone, whom he wo uld not identify. He sa id that h e had been hit
with a “tool.” His nose was cut and bruised and there was a cut
inside his mo uth. T here w as so me b lood o n his tro users and o n his
hands.
Appellant requested a bottle of beer, which Mrs. Bradley did
not have. S he ga ve him som e Tyle nol for relief of his headache.
He washed his hands and face and lay down briefly. He told Mrs.
Bradley that he needed to “get out of there” and asked her to take
him to a Men tal Health Cente r in Johns on City, where he had
previo usly received treatment. At her request he drove Mrs.
W elch’s autom obile to a nea rby sch ool, parkin g it in the rear of the
kitchen. Mrs. Bradley then drove him in her a utom obile to his
parents’ apartment where she obtained for him some fresh trousers.
Appellant lay in the back seat of her automobile during this time.
She then drove to a nearby market to purchase some bread for his
mothe r, while he c hange d trouse rs in the ba ck seat o f the car.
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As they approached the marke t, an Elizabethton d etective
observed the automobile which was similar to that of Mrs. Welch.
He had been advised of the beating of Mrs. Smith and of appe llant’s
leaving. He apprehended appellant as he sat in the back seat of
Mrs. Bradley’s automobile at the market. He also retrieved
appellan t’s bloods tained trou sers from the autom obile.
At no time d uring this inte rval did app ellant state to Mrs.
Bradley, to his pa rents, to Mrs. W elch or to the police officer that
Mrs. Smith had been injured or killed, that he had observed her, or
that he had any information whatever concerning her. This was
emphasized later by the State, after app ellant profe ssed to
remember the events of the evening and accused Mrs. Welch and
Mr. Pete rs of cons piring to m urder M rs. Smith .
Appellant was taken to police headquarte rs by a co unty
deputy sheriff who said that appellant volunteered to him the
statemen t, “I guess I'm in trouble for w hat I did.”
Appellant denied mak ing this statement. The deputy testified
that he had not questioned appellant either before or after the
statement was made and that he did not pursue the matter further,
other than to tell app ellant th at he d id not wish to talk with someone
who had beaten an elderly lady. This evoked no response from
appellan t, accordin g to the de puty.
When appellant was subsequently questioned at police
headqu arters he denied any knowledge of the incident involving
Mrs. Smith. He stated that he was partially under the influence of
narcotics, but at no time did he admit any involvement in the beating
of Mrs. Smith which subsequently resulted in her death. Police
officers who took appellant’s statement testified that it was given
volunta rily and after appellant was fully advised of his rights. They
testified that appellant appeared to be somewhat under the
influence of some intoxicant, although they detected no odor of
alcoh ol, and all of them testified that he appe ared in full command
of his faculties. Tests of his blood later revealed small traces of
sedatives, but a toxico logist called on beh alf of appe llant at trial
testified that the se we re not m ind-alte ring an d, in the quantities
found present in his blood, would not have caused him to appear
abnorm al or irrationa l to person s obse rving him .
Scientific tests of the blood fou nd on app ellant’s trousers
showed that it matched that of the victim, Mrs. Smith, and that it was
not the blo od of a ppella nt. Som e bloo d partic les tak en from his
fingernails were found to be human blood, but it was in quantities
too sma ll to test. A n ana lysis performed at the Tennessee Bureau
of Investigatio n labora tories sho wed tha t a fragment of glass found
inside the packaging material in which appellant’s trousers had been
transmitted matched the glass particles found on the rug and floor
of Mrs. S mith’s ap artmen t.
Throughout the weeks and months immediately following the
death of Mrs. S mith, appellant remained silent and adhered to the
position that he knew nothing whatever about the subject. Some
seven months after her death, however, in November 1983, he
wrote a letter to the District A ttorney stating that he had k nown all
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along that two other persons were responsible for her death and had
conspired to kill her. He gave a sta tement to the D istrict Attorney,
which was similar to his later testimony at the trial, to the effect that
Mrs. Welch, who was nineteen years old, was jealous of him and
suspected him of being sexually intimate with the 70-year-old Mrs.
Smith. He also stated to the police and later testified at trial that
Peters disliked Mrs. Smith and that he had heard Mrs. Welch and
Mr. Pete rs threate ning to m urder he r.
Appellant stated that on April 5, 1983 he had gone to Mrs.
Smith ’s apartmen t to borrow som e mone y from her when he
happened upon Greg Peters “standing there, s hakin g her b y the ha ir
of the head, telling h er to sh ut up.” H e strug gled w ith Pete rs until
the latter struck him on the brid ge of h is nose and k nock ed him
unconscious. When he recovered, appellant found Mrs. Smith lying
in the kitchen and attempted to move her to a couch in the living
room but was unable to do so. He stated that he he ard Peters
mak ing noise outside bu t by the time app ellant reached the door,
someone else had come up the stairs. Appellant advised this other
person that Mrs. Smith was injured and needed assistance. He
followed this other person into Mrs. Nave’s apartment where he
asked Mrs. Nave to call the rescue squad. Appe llant claimed that
he was “all to pieces” and so severely emotionally shaken by the
events that he needed to talk to someone and decided to go to a
mental health cen ter. Unab le to drive sa fely, howe ver, he we nt to
the hom e of his forme r wife for assista nce. H e asc ribed h is
behavior during the evening to confusion, fear and the effects of
drugs.
There was much conflicting testimony at the trial as to
whether Peters was or was not involved in the homicide, and major
issues of credibility of appellant as well as oth er witnesses w ere
presented to the trie r of fact. A ppella nt was severe ly
cross-examined and im peached with respect to the inconsistency
between his conduct and statements on the evening of April 5,
1983, and the statement which he gave to the police seven months
later, the latter b eing ess entially sim ilar to his trial testim ony.
The jury obviously did not accept appellant’s version of the
events surroun ding the h omicide of Mrs. Sm ith and found appellant
guilty of murder in the first degre e. The record abun dantly suppo rts
that verdict. Mrs. Smith was mercilessly beaten to death by
repeated blows by an assailant who was ob viously much more
powerful than she. Appellant was shown both by the testimony of
Peters and by his own statements and testimony to have been in her
apartm ent, from which he fled quickly and without any satisfactory
explanation. He consistently denied knowing anything about her
homicide or being involved until months later, at which time he
presented a rather bizarre and insubs tantial story s eeking to
implicate Peters and appellant’s former girl friend, Mrs. Welch, from
whom he had by that time becom e estran ged.
...
At the sentencing hearing the State introduced several
photographs of the deceased in support of the aggravating
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circumstance which the jury found to have been established. The
State relied upon another aggravating circumstance, that the murder
was committed while appellant was attempting to com mit robbery,
T.C.A. Sec. 39-2-203(i)(7), but the jury did not find that circumstance
to have b een es tablished by the evid ence.
Appellant relied upon testimony from his parents, relatives,
and frie nds a s well a s him self seeking clemency from the jury. He
particularly relied upon mitigating circumstances of the absence of
any prior criminal record, T.C.A. Sec. 39-2-203(j)(1), and extreme
menta l or emo tional disturb ance (T .C.A. Se c. 39-2-2 03(j)(2)).
The jury found that no mitigating circumstance was
established sufficient to outweigh the aggravating circumstance
established by the evidenc e and s entenc ed app ellant to de ath. The
trial judge approved the verdict and overruled post-trial motions filed
on beh alf of appe llant.
Id. at 491-9 4.
Because Defenda nt filed his original petition for pos t-conv iction re lief in
March of 1990, prior to the Post-Conviction Procedure Act of 1995 which
heightened a petitio ner’s b urden of proo f, he be ars the burde n to pro ve his
factual allegations by a preponderance o f the eviden ce. McBe e v. State, 655
S.W.2d 191, 195 (Tenn . Crim. A pp. 199 3); see Tenn. Code Ann. § 4 0-30-21 0(f)
(requiring a petitioner to prove factual allegations by clear and convincing
evidence). In addition, findings of fact m ade by the po st-conviction court are
conclusive on appeal so long as the evidence does not preponderate against
these find ings. Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn. 199 0).
I. FULL AND FAIR HEARING ON POST-CONVICTION PETITION
Defendant first argues that the po st-convictio n court viola ted his righ t to
due process of law by denying him a full and fair hearing on his allegations of
constitutional deprivations occurring at trial. Specifically, he contends that the
court denied him a full and fair hearing (1) b y “rushing” his pos t-convictio n
counsel to a hearing sho rtly after they were appo inted and be fore they were
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adeq uately prepared, (2) by improperly denying his requests for investigatory and
expert service s, and (3) by im prope rly restricting the evidence he was permitted
to prese nt at the po st-convictio n hearin g.
Contrary to Defendant’s assertion, while we must d eterm ine wh ether h is
rights to due proce ss we re satis fied in the trial court on post-conviction, we need
not necessarily find that he was afforded a “full and fair hearing,” such that he
was granted “every o pportunity to prese nt evidence an d argum ent.” See House
v. State, 911 S.W.2d 705, 711 (Tenn. 1995), cert. denied, House v. Tennessee,
517 U.S. 1193, 1193 (1996). A review by this Court of whether a defendant
received a full and fair hearing at an earlier date is triggered only when that
defendant seeks and is den ied the oppo rtunity to prese nt an is sue o n the b asis
that the issue has been previously determined by a court of competent
jurisdiction. See Tenn. Code Ann. § 40-30-112 (stating that a post-conviction
ground for relief is previously determined, and thereby excluded from further
review, “if a court of co mpete nt jurisdiction has ruled on the m erits after a full and
fair hearing”) (repealed and replaced by Tennessee Code Annotated § 40-30-
206(h)). Following a thorough review of the post-conviction record, we conclude
that the post-conviction court did not violate Defendant’s right to due process.
A. Adequate Preparation Time
The procedura l history of this post-conviction cause reflects that Defendant
filed his original petition for post-conviction relief in March of 1990; and the court
appointe d representation, including Attorney Eddie Lauderback, on that date.
Lauderback represented Defendant with the assistance of a succession of co-
counsel until the court replaced him with the newly created Post-Conviction
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Defe nder’s Office on April 30, 1996. The post-conviction court appointed the last
of Lauderb ack’s co-cou nsel, Attorney M ark Slagle, on Ja nuary 5, 1996 . Slagle
continued his representation of Defendant after the ap pointm ent of the P ost-
Conviction Defender’s Office, and they coordinated their efforts on behalf of
Defen dant up to and inc luding the presen t appea l.
The post-con viction court originally set Defendant’s hearing for May 30,
1996, but contin ued th e cas e until June 26 be caus e the n ewly cr eated defen der’s
office could not begin its responsibilities on the case until April 30. One week
prior to June 2 6, defen se cou nsel aga in move d for a con tinuance , and th e trial
court reset Defendant’s hearing for October 1. No other requests to continue
appear in the reco rd. Due to an illness, a defens e expert w itness co uld not tes tify
at the October 1 hearing; and the post-conviction court therefore permitted the
defense to carry over its proof to the second installment of the hearing, held on
Janua ry 14, 199 7.
Defendant charges that “four months” is “woefully inadequ ate” to prepare
for a post-conviction hearing in a capital case. In addition, he insists that
significant evidence remained undeveloped at the time of the hearing.
Specifically, he argues, counsel were not able to (1) obtain and analyze all of
[former] trial cou nsel’s files; (2) conduct continuing social history interviews of
Defen dant; (3) interview others from Defendant’s social history; (4) gather social
history docum ents and records; and (5) consult with experts regarding results of
these e fforts.
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The State responds that the post-conviction court was “generous” by
providing trial counsel adequate time for preparation. According to the State,
Defendant had not four months to prepare, but six years, due to the successive
chain of counsel as well as the long-time investigation by Defendant’s attorney
for five years of that time, Eddie Lauderback. The State also notes that the
defense did not request the trial court to continue the case for a specific period
of time.
W e agree with the State that although Defendant characterizes the
procedural history on post-conviction as chaotic, the defense remained
coordinated enough to adequately prepare for the evidentiary hearing in an
approp riate amount of time. Through his continuous, five-year representation,
Attorney Lauderback served as the common thread for what might otherwise
have been a disjointed effort at defen se. Laud erback conveye d the cas e to
Attorney Slagle, who saw the case to the hearing nine months later (and who
continues to serve as Defe ndan t’s counsel) with the assistance of advocates who
specialize in post-conviction capital cases. Finally, Defendant gained additional
time when the trial c ourt continued the proo f for three an d one-h alf mon ths to
permit in-c ourt testim ony by the defens e expert w itnesses .
Based on the facts in the record, we find that the post-conviction court d id
not violate due process by denying Defenda nt additional time in w hich to prepare
for the post-c onviction e videntiary h earing. See, e.g., State v. Cazes, 875
S.W.2d 253, 26 1 (Ten n. 1994 ) (holding th at the trial cou rt did not ab use its
discretion by denying a capital defend ant a continua nce where trial counsel were
appointed to the case two and one-half months prior to trial, prior counsel worked
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on case for thirteen months before trial counsel were appointed, and many
continuanc es had be en granted at the defenda nt’s request).
B. Requests for Investigatory and Expert Services
The second tenet of Defendant’s due process claim concerns the post-
convic tion court’s denial of his motion for investigative and expert services.
Defendant cites Tennessee Code Annotated §§ 40-30-215 and 40-14-207(b),
stating, “These statutes require the post-conviction court to grant the services
requested if, based o n the m otion and the evide nce pre sented at the ex pa rte
hearing, the pe titioner m akes a thres hold s howin g of pa rticulariz ed need.” He
asserts th at post-co nviction co unsel m ade this th reshold showin g.
In particular, Defendant contends that the post-conviction court erred by
granting his motion for the e xpert services nec essary to prove that he suffered
deficient representation at trial (the first prong of Strickland analysis on ineffective
assistance of counsel), 1 while rese rving his de cision for fun ding of experts
necessa ry to prove prejudice to his defense (the second Strickland prong). The
post-conviction court explained that if Defendant could not bear his burden of
proof on the issue of deficient represen tation, then the cou rt need n ot waste state
expenses for expert services to pro ve the issue of prejudice—absent success on
the former element, proof of the latter element would not m erit relief from the
court.
1
See Strickland v. Washington, 466 U.S. 668 (1984).
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The State responds that the post-conviction court properly denied
Defe ndan t’s motion for expe rt services to show prejudice from deficient
representation at trial. The State note s that the post-conviction court c learly
indicated to Defendant that if deficient representation was shown, funding for
additional services w ould be forthcom ing. Finally, th e State argues that
Defendant was not entitled by law to the services the post-conviction court
granted him—namely “attorney-expert” Ann Short, who testified that in her
professional opinion, the performance by Defendant’s trial counsel fell below the
standard of competent criminal defense attorneys in several respects—because
Defendant’s post-conviction counsel should have, and customarily would have,
performed this task themselves without the assistance of an attorney acting as
an “expe rt on attorn eys.”
1. Motion for Ex Parte Hearing
Tennessee Code An notated § 40-14-207 provides,
In capital cases where the defendant has been found to be
indigent by the court of record having jurisdiction of the case, such
court in an ex parte hearing may, in its discretion, determine that
investigative or expert services or other s imilar services are
necessa ry to ensure that the constitutional rights of the defendant
are prope rly prote cted. If s uch d eterm ination is made, the court may
grant prior authorization for these necessary services in a
reason able am ount to be determ ined by th e court.
Tenn. Code Ann. § 40-14-207 (b). The Tennessee Supreme Court has held § 40-
14-207(b) applicable to post-conviction proceedings for capital defendants.
Owen s v. State, 908 S.W .2d 923, 928 (Tenn. 199 5).
In Owens, the supreme court held that the same procedures used pretrial
to obtain an ex parte hearing on a motion for expert or investigative services
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apply prior to a defendant’s post-conviction evidentiary he aring. Id. These
procedures, found in Tennessee Supreme Court Rule 13, require a defend ant to
include in the motion for services: (1) the name of the propose d expert or service;
(2) how, when, and where the examination is to be conducted or the services are
to be performed; (3) the cost of the evaluation and report thereof; and (4) the cost
of any other nec essary services, s uch as court ap pearan ces. Tenn. Sup. Ct. R.
13, § 2(B )(10).
Defe ndan t’s initial motion to the post-convictio n court and its supporting
affidavits appear to have been om itted from the reco rd on appe al. However,
because the post-conviction court granted a telephone conference on this matter
prior to granting the services of Ann Short and denying all other services, we
assume for the p urpos e of this appe al that D efend ant fulfille d the R ule 13
prerequ isites for an e x parte he aring.
2. Particularized Need for Services
The Owens court de clared tha t a motion for services should b e grante d if,
at the ex parte hearing, the petitioner “dem onstrates that inves tigative or expert
services are nec essary to ensure the protection of the petitioner’s constitutional
rights.” 908 S.W.2d at 928. To demo nstrate n ecessity, a defendant should meet
the sam e test a s requ ired by courts review ing dire ct app eals in capita l cases:
“The defendant must show that a substantial need exists requiring the assistance
of state paid supporting services and that his defense cannot be fully developed
without such professional assistance.” State v. Evans, 838 S.W.2d 185, 192
(Tenn. 1992); Owens, 908 S.W.2d at 928 (adopting rule in Evans for post-
conviction petitioners in capital cases). Furthermore, a trial court m ay pro perly
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deny a motion for services that is “accompanied by little more than undeveloped
assertions that the services were needed to attem pt to coun ter the Sta te’s proof.”
State v. Cazes, 875 S.W .2d 253 , 261 (T enn. 19 94); see State v. B arnett, 909
S.W.2d 423, 431 (Tenn. 1995) (s tating that “[u ]nsupp orted as sertions th at a
psych iatric expert is necessary to counter the State’s proof are not sufficient” to
meet the thresh old showing of pa rticularized need for a non-capital defe ndant).
The “determination of whether provision of expert se rvices to an indigent
capital defen dant is nece ssary to ensu re that th e con stitution al rights of the
defendant are properly p rotected is entruste d to the dis cretion of th e trial court.”
Cazes, 875 S.W .2d at 261 (citing Te nn. Co de Ann . § 40-14-207(b) (stating that
the court “in an ex parte hearing may, in its discretion, determine that
investigative or expert services or other similar service s are neces sary to ensure
that the constitutional rights of the defendant are properly protected”)); see
Owens, 908 S.W.2d at 929 (observing that § 40-14-207(b) “vests with the trial
court discretion to determine if investigative or expert services a re neces sary to
ensure that the mova nt’s constitutional rights are protected”); Thom pson v. S tate,
958 S.W.2d 156, 169 (Tenn. Crim. App. 1997). Therefore, this Court mu st affirm
the dec ision of the trial court un less the fa cts show an abu se of disc retion.
In this case, the record does not contain a transcription of the
teleconference appa rently conduc ted as a h earing o n Defe ndant’s e x parte
motion for services. In Thompson, 958 S.W.2d at 171, this Court announced that
we may not review a decision by the trial court for abuse of discretion where we
are not privy to the presentation of proof mad e by a defendant in support of the
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motion for services . Id. Thompson states, “Owens clearly contemplates a
presentation of proof . . . . Without a record of the hearing, this court cannot
determine wheth er [the ju dge] e rred by denyin g the motion.” Id. Likewise, we
cannot examine whether the trial judge abused his discretion in this case without
a record of the proo f brough t before tha t court.
Shor tly before his evidentiary hearing in the trial court, Defendant moved
the court to reconsider its decision to deny his requests for all services except
those of Attorney Ann Short. In that written motion, Defendant relied upon his
earlier motion and its supp orting affida vits, which, a s noted , do not ap pear to
have been included in the reco rd. Upon the ex pa rte hearin g of this m otion to
reconsider, held prior to proof on the first day of Defendant’s evidentiary hearing,
counsel presented no proof but instead requested the opportunity to have Ann
Short appea r ex parte a t a future da te to attest to the need for additional services.
The post-c onvictio n judg e indic ated th at he d id not intend to hear
substa ntive proof from Ms . Shor t in an e x parte proce eding , but tha t he wo uld
treat Defendant’s motion for investigative and expert services as a continuing
one. The judge instructed Defendant that if he proved deficient representation
in the course of the po st-con viction h earing , then a ddition al, necessary services
would be granted. The judge stated, “Ex parte only means you—yo u’ve got a
right to ask the cou rt to give you certain funds for services . . . not to have the
court hear ex p arte any subs tantive evidence.”
Based upon th e foregoing recitation o f authority, we find that the post-
convic tion jud ge m isstate d his authority an d duty to hold a n ex pa rte hea ring in
-15-
which Defen dant ha d an op portunity (a nd inde ed a du ty, in order to p revail) to
present concrete facts tending to show a particularized need for the inves tigative
or expert services. However, the post-conviction judge’s misstatement of the law
does not entitle D efenda nt to relief. At the motion to reconsider the denial of
additional services, D efenda nt was cle arly unpre pared to presen t evidence to
show a particularized need for the services. In the absence of a transcript
memorializing the evid ence prese nted a t his first e x parte teleconference,
Defendant cannot bear his burden of proof that the post-conviction judge abused
his discre tion by de nying ad ditional inve stigative an d expert s ervices.
C. Restriction of Post-Conviction Evidence
Defendant next argu es that the trial court impaired his right to present
evidence to support his case at the post-conviction hearing by limiting the proof
advanced during witness Walter William Foster’s testimony. Furthermore, he
asserts the post-conviction judge create d a ho stile atmosph ere at the eviden tiary
hearing by referring to witnes ses A rchie P arlier an d Lou ise Mc Neil as irrelevan t.
In response, the State contends the record demo nstrates that the trial court
permitted each of these witnesses to fully testify. The State posits that the trial
judge simp ly perfor med his function as gatekeeper of admissible evidence and
that although the judge determined some testimony inadmissible based upon
relevancy, he nevertheless permitted questioning as an offer of proof for the
record.
1. Archie Parlier
-16-
When Defendant called Archie Parlier to testify at the post-conviction
evidentiary hearing, the State immediately objected on the gro unds that his
testimony was irrelevant (“outside the scope of th[e] hearing”). The post-
conviction judge su stained th e State’s objection, saying, “I won’t consider it as
any substantive proof in the case. I think it’s an impro per imp eachm ent of . . . the
jury verdict, ” and p ermitte d Def enda nt to exa mine the witness by leading
questions for an offer of proof. We find th at the trial court’s comm ents were
within the proper scope of issuing a ruling on the objection to admissibility of the
evidence and therefore not for the purpose or to the effect of creating a hos tile
atmosphere. Moreover, the trial judge permitted a thorough examination of
Parlier as a proffer into evidence notwithstanding the fact that he had already
ruled the testim ony outs ide the sc ope of p ost-con viction proof. Only after
defense counsel had rested and thereafter reconsidered and resumed
questioning did the trial court cease Defenda nt’s proffer. We find no improper
limitation on proof.
2. Lou ise Mc Neil
The post-conviction record reflects that after permitting testimony by Louise
McN eil which, wh en trans cribed, sp anned several p ages, the court sua spon te
inquired into the relevancy of the witness. Defendant’s counsel explained that he
was attem pting to elicit infor matio n kno wn by M cNeil w hich was critical to
Defe ndan t’s case at trial. 2 The trial judge replied, “The . . . issue of guilt and
innocence has already been decided. The S uprem e Cou rt affirm ed it. An d this
. . . evidence is really irrelevant until you show wh y it wasn’t presented . There
2
McNeil offered the opinion that Greg Peters was a violent person and that she did not
want to be alone with him.
-17-
might have been a good reas on why [McN eil] wasn’t called.” In addition, the trial
judge expressed , “You’ve got to prove whether defense coun sel kne w abo ut this
witness, whether there was some reason he didn’t call this witness and all that.”
Defe ndan t’s post-conviction counsel explained, “[The order of witnesses]
was just a question of trying to work out the convenience of the attorney’s
schedules with the witn ess schedules.” Although th e trial court seem s to have
become increasingly impatient with the order of the witnesses, we can find no
impe rmiss ible restriction of the proof. The trial court permitted McNeil to continue
her testimony; furtherm ore, it appe ars that the court wa s prima rily concern ed with
judicial econom y: “[I]t seems to me that . . . you ought to start off at the top with
. . . that and not subject everybody to listening to what may be irreleva nt proof. 3
3. Wa lter William Fo ster
Similarly, the trial cour t objected to the time at which form er Sh eriff’s
Depu ty Foster’s testimony was given. Defense counsel called Foster to testify
that he had previously been convicted of felonies in Louisiana, information which
was not provided to the defense either before or during trial and which the
defense argues would h ave be en gre atly rele vant to im peac hing F oster’s
credibility at trial. 4 The trial court deemed this testimony irrelevant and ordered
the witness excused until such time as Defendant “proved to [the trial court] that
[Foster’s] te stimon y is mate rial.”
3
The State provided this footnote, which the Court finds relevant to reproduce: “In fact,
it would come out during the questioning of trial counsel Ken Baldwin that McNeil was not called
at trial because she had no first-hand knowledge of any violent behavior by Greg Peters.”
4
At trial, Foster testified that Defendant had told him on the evening of the murder, “I
guess I’m in trouble for what I did.” In addition, Foster testified that he had failed to report this
statement to anyone until shortly before trial (over one year after the occurrence).
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The trial court later p ermitted Foster to testify conc erning h is convictions
and subsequent pardon by the governor of Louisiana. Foster stated that the
Sheriff of Carter County (the county of this action) knew about his convictions
prior to the trial of this c ase an d that, in fact, J udge D on Lew is, Sheriff Georg e
Papantonio, and numerous other law enforcement officers had written letters on
Foste r’s behalf to the governor of Louisiana recommending that Foster be
pardoned for his crimes. Finally, Foster admitted that he had not revea led his
convictions on his written application to become a Carter Coun ty Depu ty Sheriff.
Defendant has presented no evidence before this Court that the trial court
restricted his post-conviction hearing . In addition, we find no evidence that the
trial court created a hostile atmosphere by ruling Foster’s testimony irrelevant
until proven relevant through other witnesses. 5
II. BRADY VIOLATION
In his second issue, Defendant contends the trial court erred by concluding
that no Brady violation occurred w here the State did not disclose evidence that
former deputy sheriff W alter W illiam F oster h ad be en co nvicted of felon ies in
Louisiana and that Foster had failed to disclose those convictions as required on
his application for employment with the sheriff’s department, among other
docum ents. See Brady v. Maryland, 373 U.S. 83 (1963).
In order to prove a due process violation un der Brady v. Maryland,
Defendant must show that (1) the State suppressed the information, (2) the
information was favorable to the accused, and (3) the info rmatio n was mate rial.
5
Because we have concluded that the trial court did not create a hostile atmosphere
with respect to Defendant’s proof, we decline to address whether a hostile atmosphere, in and
of itself, can function as a denial of due process in a hearing before the trial court without a jury.
-19-
State v. Edg in, 902 S.W.2d 387, 389 (T enn. 19 95). The undisclosed information
is material “only if the re is a reasonable probability that, had the evidence been
disclosed to the de fense , the res ult of the proce eding would have be en differen t.”
United States v. Bagley, 473 U.S. 667, 6 82 (19 85). Fu rtherm ore, a re ason able
probab ility is a “proba bility sufficient to und ermine confiden ce in the o utcom e.”
Id. In Giglio v. United States, 405 U.S. 15 0, 154-155 (1972), the Suprem e Court
held that impeachment evidence falls under the Brady rule. See also, United
States v. Bagley, 473 U.S. 667, 676 (1985); Davis v. S tate, 823 S.W.2d 217, 218
(Tenn. C rim. App., 199 1).
In Kyles v. Whitley, 514 U.S. 41 9 (1995), the United S tates Suprem e Court
clarified the materiality standard set forth in Bagley. Id. at 433-37. First, “a
showing of materiality does not require demonstration by a preponderance that
disclosure of the suppressed e vidence would have resulted ultimately in the
defen dant’s acquittal.” Id. at 434. T herefore , accordin g to the Court, “[t]he
question is not whether the defendant would more likely than not have received
a different verdict with the evidence, but whethe r in its abse nce h e rece ived a fa ir
trial, understood as a trial resulting in a verdict worthy of co nfidence.” Id.
Next, the Kyles Court directed that a defendant “need not demonstrate that
after discounting the inculpatory evidence in light of the undisclosed evidence,
there would not ha ve been en ough left to convict.” Id. at 434-3 5. The m ajority
disputed the conc lusion of th e dissen t in that case , comm enting,
This rule is clear, and none of the Brady cases has ever
suggested that su fficiency of the evidence . . . is the touchstone.
And yet the dissent appears to assume that Kyles must lose
because there would still have been adequate evidence to convict
even if the favorable evidence had been disclosed.
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Id. at 435 n.8 ; see Strickler v. Greene, 119 S. Ct. 193 6 (1999).
Third, the Court cau tioned that cons titutional errors under Brady are not
subject to a harmless error rule—a notion quite related to the last point of
emphasis, in that a co urt is not at libe rty to conclu de that the totality of the
evidence indicating guilt renders the nondisclosure harmless beyond a
reaso nable doubt. Id. at 435. Finally, the Kyles Court stressed that all
suppressed or undisclosed evidence should be con sidered cumu latively to
determ ine its ma teriality. Id. at 436.
Turning to the facts of this case, in su pport of his assign ment of error,
Defendant argues that contrary to the trial court’s ruling, the evidence not
disclosed was inde ed ma terial. Defen dant co rrectly note s that the S tate
conceded the first prongs of Brady: that the evidence was favorable to the
defense and that know ledge o f the inform ation by sta te law en forcem ent offic ials
is imputed to th e State as pro secu tion. Th erefor e, the o nly issu e for rev iew is
whether the evidence was m aterial. If the un disclose d testimo ny was m aterial to
the defe nse, then Defen dant is en titled to a reve rsal.
In its order d enying p ost-con viction relief, the trial court state d,
In order to qualify as mate rial, there mus t be a re ason able
probab ility that the evidence, had it been disclos ed, would ha ve
changed the result of the trial. After a thorough review of the
evidence presented at the petitioner’s trial, this court concludes that
this evidence is not material. There was overwhelming evidence of
the petitioner’s g uilt presen ted at trial. Fur thermo re, even if the
court were to a ssum e the ad missibility of the evidence of the felony
burglaries and Officer’s Foster’s nondisclosure of them on an
employment application , the court finds that they h ave little
impeachment value in light of the full pardon Officer Foster had
received .
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In response, Defendant challenges this finding, arguing in his brief that the
trial court’s reliance upon Foster’s official pardon was erroneous because the
pardon did not serve to negate the conviction for impeachment purpo ses, n or did
the pardon eliminate Foster’s duty to disclose the convictions on his employment
application—also evidence Defendant would have used for impeachment.
Defendant conten ds, “Had the trial cour t allowed a full examina tion of De puty
Foster at the post-conviction hearing, [Defendant] would have established that
the Louisiana pardon wo uld ha ve don e noth ing to d iminis h the va lue of th is
evidenc e as imp eachm ent.”
W e disagree with Defenda nt’s impre ssion of th e trial court’s d ecision. F irst,
we find no improper reliance on Foster’s pardon by the trial court. Although
Defendant correctly argues that the pardon could not have relieved Foster of the
legal duty to report his con victions (therefore, the pardon has no effect upon
Foster’s falsification of h is emp loymen t application ), the trial cour t appea rs to
have placed greater importance on the practical value of the pardon in the
perception of the jury, as it would have been used to reha bilitate F oster a t trial.
Second, the trial cour t’s estima tion of the practical im pact o f Foste r’s
convictions, falsification, and pardon were influenced by the significant weight of
evidence against Defendant. Though, as the Supreme Court has instructed, the
sufficiency of the evidence has no bearing on a test of materiality, the strength
of the additional convicting evidence is pivotal in our determination of whether the
suppressed Brady evidence places the case in “such a different light so as to
unde rmine confid ence in the verdict.” See Kyles v. Whitley, 514 U.S. 419, 435
(1995). The post-conviction court in the case at bar fo und th e evide nce o f guilt
-22-
so overwhelming that consideration of the undis closed evidence could not
undermine its confidence in the outcome of the trial. We ag ree, and for this
reason we affirm the trial court’s denial of post-conviction relief on this issue.
III. EXCLUSION OF ARCHIE PARLIER’S TESTIMONY
As previously addre ssed, Defe ndant called A rchie Parlier, a juror at his
trial, to testify at his post-conviction he aring. The trial court susta ined th e State ’s
imme diate objec tion tha t Parlier ’s testimony was “outside the scope” of the post-
conviction hearing—an impermissible attempt to impea ch the jury’s verdict.
Defen dant req uested the opp ortunity to proffer evidence to preserve his rec ord
for appeal, and the trial court granted his request, permitting limited questioning.
Parlier testified that the foreperson for the jury which decid ed De fenda nt’s
case discussed with the jury that if sentenced to life imprisonment, Defendant
would “probably” only serve six to eight years before being released. Parlier
stated that had he been assured that a sentence of life would ensure that
Defendant remained imprisoned for his lifetime, his verdict would “[m]ore than
likely” have changed. Furthermore, he ventured the opinion that the other jurors
relied upon this piece of information a s a pivotal issue on sentencing. F inally,
Parlier testified that the foreperson did not indicate where she had learned the
information sh e passed on to the jury.
Tennessee Rule of Evidence 606 provides:
Upon an inq uiry into the valid ity of a verdict or in dictme nt, a
juror may not testify as to any matter or statement occurring during
the course of the jury’s deliberations or to the effect of anything
upon any juror’s mind or emotion as influencing that juror to assent
to or dissent from the ver dict or in dictm ent or c once rning th e juror’s
-23-
mental proces ses, exce pt that a juror may testify on the question of
whether extraneous prejudicial information was im prope rly brought
to the jury’s attention, whether any outside influence was impro perly
brought to bear upon any juror, or whether the juro rs agre ed in
advance to be bound by a quotient or gambling verdict without
further discussion; nor may a juror’s affidavit or evidence of any
statement by the juror concerning a matter about which the juror
would be precluded from testifying be received for these purposes.
Tenn . R. Evid. 60 6(b).
Defendant argues that Juror Parlier’s testimony, if explored, would have
succ essfu lly impeached the jury’s verdict by proving extraneous prejudicial
information, necessitating a new senten cing hearing. The State argues that
Parlier’s testimony reflected only his mental processes and that the trial court
correctly excluded the testimony as inadmissible. We agree that the testimony
was inadmissible to impeach the jury’s verdict, and we affirm the trial court’s
decision to exclude this testimo ny.
First, contrary to Defendant’s assertions, the trial court did not
unrea sona bly curtail his offe r of proof w ith Parlier. The record reflects that
defense counsel ceased his questioning by stating, “That’s all.” Defe ndan t’s
counsel thereupon stated , “Just o ne m inute, Y our H onor,” and re com men ced h is
questioning. After counsel posed his second additional question to the witness,
the trial court cut short questioning, commenting, “You’ve gone far enou gh with
this. Tha t’s eno ugh.” D efend ant ha d ess entially ende d his p roffer th rough this
witness when he realized his de sire to further explore the issu e. The trial court
permitted Defendant’s q uestionin g until he b ecam e confide nt that the p ost-
convic tion procee dings w ere bein g frustrated by Defe ndant’s a ttempts to
introduce proof wh ich could not secu re him re lief.
-24-
Second, the trial court correctly ex cluded Parlier’s tes timony fro m the p ost-
conviction proof. We be lieve the facts o f this ca se are mos t simila r to thos e in
State v. Workm an, 667 S.W.2d 44, 51-52 (Tenn. 1984). In Workm an, the
defendant “presented e vidence that the jury had discussed parole time for a life
sentence, the possibility that defend ant would ne ver be executed, and the
consequences if the jury could not agree on a verdict.” Id. at 52. The Tennessee
Supreme Court recounted that the trial court in that case “found that the
defendant was trying to impeach the verdict and disallowed an offer of proof that
one juror was affected by the irrelevant talk.” Id. The supreme court concurred
with the decision of the trial court, affirming Workman’s conviction and sentence
of death . Id.
Likewise, in State v. Keen, 926 S.W.2d 727 (Tenn . 1994), the defend ant,
in support of his motion for new trial, offered the affidavit of a juror “to the effect
that the amount of time a person would serve on a life sentence was considered
by him and other jurors in reaching their verd ict.” Id. at 738. In concluding that
such discussions do not constitute “extraneous prejudicial information” prohibited
by Ten ness ee Ru le of Ev idence 606, the suprem e court stated, “W e are
constrained to say that qu estion wo uld not be an unu sual one for a jury to
consider an d debate in rea ching a verdict in a ca pital case.” Id.
Our supreme court elaborated on its interpretation of “extraneous
prejudicial information” in State v. Coker, 746 S.W.2d 167 (Tenn. 1987). The
court state d,
Extraneous means “coming from without” and the fact that one or
more jurors may ha ve commented about the possibility of defendant
employing a third person to murder one or more jurors would not be
-25-
adm issible unless the comment included information that the threat
originated from and w as transm itted to the jury by an outside source.
Id. at 171. In this case, Juror Parlier testified that the jury foreperson did not
indicate her sou rce of kno wledge . We must a ssum e that she spoke from a
generalized belief that criminal defend ants senten ced to life incarceration s erve
only six to eight yea rs; and w hile this inform ation wa s incorrec t, Defendant is not
entitled to relief absent an outside source of knowledge.
In Caldar aro v. Van derbilt Un iversity, 794 S.W.2d 738 (Tenn. Ct. App.
1990), the Tennessee Court of Appeals thoroughly examined the issue of
extraneo us prejud icial informa tion. Id. at 740-44. The court noted,
External influences that could warrant a new trial if found to be
prejudicial include: (1) expos ure to news item s about the trial, (2)
consideration of facts no t admitted in evidence, and (3)
communications with non-jurors about the case. Internal influences
that are not grounds to overturn a verdict include: (1) discussions
among jurors, (2) intimidation or harassment of one juror by another,
(3) a juror’s personal experiences not directly related to the litigation,
and (4) a juror’s subjective thoughts, fears, and emotions.
Id. at 742 (citations omitted). We conclude that the information communicated
by the foreperson of the jury in the case at bar constituted an internal influence;
therefore, the trial court properly exclud ed Parlier’s testimo ny from the
substa ntive evide nce take n at the po st-convictio n hearin g.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In supp ort of his argum ent tha t his trial counsel were ineffective, Defendant
contends that they (1) failed to identify and request forensic experts, (2) failed to
adeq uately investigate in the guilt ph ase of trial, (3) failed to “kno w relevan t law,”
(4) failed to adequately move to suppress Defendant’s statement to police, (5)
failed to adequ ately investig ate in the s entenc ing pha se, (6) failed to identify and
-26-
request sentencing m itigation experts, and (7 ) that the post-con viction court
utilized an inc orrect stand ard to d eterm ine ine ffectiven ess o f coun sel.
To determine w hether coun sel provided effective a ssistance at trial, the
court must decide whether counsel’s performance was within the range of
competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was
ineffective at trial, a petitioner bears the bu rden o f show ing tha t his counsel made
errors so serious that he was not functioning as counsel as guaranteed under the
Sixth Amendment and that the deficient representation prejudiced the petitioner,
resultin g in a failure to p roduce a reliable re sult. Strickland v. Washington, 466
U.S. 668, 687 (1984); Coop er v. State , 849 S.W .2d 744 , 747 (T enn. 19 93); Butler
v. State, 789 S.W .2d 898, 899 (Tenn. 1990). To satisfy the second prong, the
petitioner mus t show a reas onab le prob ability that; but for c ouns el’s
unrea sona ble error, the fact finder would have had reasonable doubt regarding
petition er’s guilt. Strickland, 466 U.S. at 695. T his reaso nable p robability must
be “sufficient to underm ine confidence in the outcom e.” Harris v. S tate, 875
S.W .2d 662, 665 (Tenn. 199 4).
When review ing trial counsel’s actions, this Court should not use the
bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics.
Hellard v. State, 629 S.W .2d 4, 9 (T enn. 19 82). Counse l’s alleged errors shou ld
be judged at the time they were made in light of all facts and circumstances.
Strickland, 466 U.S . at 690; see Cooper 849 S.W.2d at 746.
-27-
If afforded a p ost-con viction evide ntiary hea ring by the trial court, a
petitioner must do more than merely present evidence tending to show
incompetent representation and prejudice; he m ust prove his factual allegations
by the preponderance of the evidence.6 State v. Clenny, 576 S.W.2d 12, 14
(Tenn. Crim. App. 1978). When an evidentiary hearing is held, findings of fact
made by that court are conclusive and bindin g on th is Court unless the evidence
preponderates against them. Cooper v. State, 849 S.W.2d 744, 746 (Tenn.1993)
(citing Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn.19 90)).
Following the post-conviction hearing, the post-conviction court concluded
that Defen dant ha d not suffe red the ine ffective assista nce of trial co unsel. W e
agree with the conclusion that Defendant received the effective assistance of
counsel at trial and on direct appeal of his conviction, and we address the
argum ents colle ctively.
A. Location of Victim’s Wounds and Bloodstained Clothing
Defendant first states that his counsel were ineffective for failing to identify
and request forens ic experts— specifically, a patho logist and criminolo gist.
Defendant contends that “the evidence these experts would have presented
would estab lish [Defendant’s] innocence by confirming that the attacker was
right-handed and that the blo od sp latter pa ttern on [Defe ndan t’s] cloth es is
consistent with his version of the events and inconsistent with Greg Peters’
version of the events.” Furthermore, he argues that trial counsel were deficient
for gene rally failing to investigate (1) the “left-handed/right-handed” theory that
6
Defendant filed his petition for post-conviction relief on March 23, 1990, prior to the
amendment requiring petitioners to prove factual allegation by clear and convincing evidence.
See Tenn. Code Ann. § 40-30-210(f).
-28-
only a right-h ande d pers on, G reg P eters, c ould h ave inflic ted the victim’s wounds,
and (2) the manner in which blood left patterns on Defendant’s and Peters’
clothing, to determ ine who se versio n of even ts was m ore likely.
The trial court found, following a “thorough review of the trial record and the
testimony from the evidentiary hearing,” that Defendant “failed to show how he
was prejudiced by any of the alleged e rrors.” Because the post-conviction court
denied Defenda nt the assistance of requested e xperts that he claim ed were
necessa ry to show prejudice, however, Defendant argues that the court’s ruling
was improper. Based upon the post-conviction judge’s continued assurance that
he would provide funding for additiona l expert services if Defendant proved
initially that his trial counsel had been ineffective, we must assume for the
purpose of review that the post-conviction court’s denial of those additional
services indicated that he found no evidence of deficient representation under the
Strickland standa rd.
At the post-conviction evidentiary hearing, Defendant’s trial counsel
testified that he had ne ither recolle ction of no r explana tion for the fa ilure to
explore a theory that the blows to the victim could not have been administered
by a left-handed person (Defenda nt), but must ha ve been de livered only by a
right-handed person (Greg P eters). Defe ndan t conte nds th at this e videnc e cou ld
have exculpated him at trial, had his counsel secured an expert to show that the
victim’s assailant could not have been left-handed.
Had Defendant’s trial couns el been able to sh ow that a left-handed person
could never have inflicted the victim’s injuries, of course, the outcome of the trial
-29-
could have be en differen t. However, without more than an assertion that an
expert could have shown that a left-handed person could not have delivered the
blows, we are constrained to hold that Defendant has not shown (and we believe
cannot show) e ither that counsel fell below the standard of care for a criminal
defense attorney or that there exists a rea sonab le proba bility of a differen t result.
Defe ndan t’s trial counsel also testified that they did not investigate the
blood splatters on Defendant’s clothing in an attempt to detract attention from
their existence. We believe this was a legitimate trial strategy outside the scope
of proper review by th is Cou rt. The eviden ce at tria l show ed tha t Defe ndan t’s
pants had blood “splattered” on them, while Peters’ shirt was “smeared” with
blood. It is within common knowledge that a splatter bloodstain would occur from
blood spurting at some force, while a blo od sm ear wou ld arise from contact w ith
a bloo dy surf ace. In this way, the splatter pattern on Defendant’s pants versus
Peters’ smeared shirt supports the State’s theory of the case—that Defendant
inflicted the wounds and Peters attempted to assist the victim in th e afterm ath of
the attack. Therefore, trial counsel’s decision to forego investigation of the
resulting b loodstain s did not c onstitute d eficient pe rforman ce.
B. Failure to Investig ate
First, Defendant contends that counsel were ineffective for failing to
vigorously cross -exam ine G reg P eters, b ecau se Pe ters wa s the k ey witne ss in
the case. The post-c onvictio n cou rt conc luded in general that Defendant failed
to show he was prejudiced by any potentia l errors of co unsel. W e agree with
Defendant that the credibility of Peters was crucial to Defendant’s case.
-30-
Howeve r, his contention that counsel’s performance fell below the standard of
care to his prejudice for failing to bring o ut through cros s-examina tion that Peters
was right-handed lacks merit. We find nothing in the record tending to show that
there is a reasonable probability that had counsel shown Peters is right-handed,
the jury wo uld have had rea sonab le doub t about D efenda nt’s guilt.
Next, Defen dant arg ues tha t counse l were ineffe ctive for failing “to
investigate and present evidence that no robbery had occurred, in spite of the
fact that the State’s theory involved a robbe ry-murd er.” Acco rding to D efenda nt,
his trial counsel “should have presented evidence that [Defendant] had no money
when he was arrested,” “should have pursued questions establishing that Greg
Peters had not been searched to determine if he had money,” an d “should ha ve
interviewed and presented Ms. [Louise] McNeil as a witness regarding the fact
that she foun d the victim ’s purse a t the crime scene .” In addition, he claims that
defense counsel sho uld have investiga ted and further d eveloped testimony given
at the post-conviction evidentiary hearing by the victim’s neighbor, Frank Garland,
that twenty seco nds la psed betwe en the time h e hea rd a co mm otion in the
victim’s ap artmen t and the tim e he he ard Gre g Peters call for help.
Again, conscientious decision s regard ing investig ation, dev elopm ent, and
direct and cross-examination are best considered judgments of trial strategy
within the discretion of counsel and not subject to the scrutiny of hindsight.
Furthermore, we cannot conclude there is a reasonable probability that had the
jury known the victim’s purse was found in her bedroom closet and Defendant
possessed no money when he was arrested, it would have had reasonable doubt
whether Defendant killed the victim. Nor can we say that the testimony presented
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by Garlan d would have ha d such an effect u pon G reg Pe ters’ credib ility so as to
create reasonable doubt. The evidence at trial stron gly indic ated D efend ant’s
guilt, as noted by the post-conviction court in its Findings of Fact and Conclusions
of Law. We find that Defendant has neither shown his counsel erred nor how he
was prejudiced by any such error, and we conclude that nothing presented thus
far has unde rmined ou r confidence in the verdict of the jury.
C. Failure to Know Relevant Law
Defendant next claims that his counsel were ineffective for failing to know
relevant Tennes see criminal law . He contend s that counse l should have
procured the exc lusion of form er De puty F oster’s testim ony inculpating
Defendant or that counsel should have obtained a continuance. The supreme
court on direct review determined that the statement to Foster was not
discoverable. State v. McNish, 727 S.W.2d 490, 496 (Tenn. 1987). In addition,
we have held that the information presented by Foster was not material under
Brady v. Maryland, see supra Part II; there fore, we find no preju dice to
Defendant. Furthermore, we find no prejudice in counsel’s failure to secure a
continuance upon learning of the new information; Defendant has not proposed
to the Court how a continuance would have created a reasonable probability of
a different re sult.
D. Failure to Adequately Move to Suppress Defendant’s Statement
In his next issue, Defendant argues that trial counsel were ineffective by
failing to adequately move to suppress the statement Defendant made to o fficers
on the night o f his arrest. He ar gues that co unse l shou ld have investigated and
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presented evidence to show that he was too intoxicated or impaire d by drug s to
have given the statemen t knowingly and voluntarily.
The State responds by noting that the Tennessee Supreme Court affirmed
the voluntary nature of Defendant’s statement in McNish, 727 S.W .2d at 496 . In
that opinio n, the cou rt stated,
The trial judge conducted a suppression hearing and found that the
statement was voluntarily and freely given after appellant had been
fully advised of his rights and had signed a written waiver. The
evidence supports the findings of the trial judge and certainly does
not establish the contention of the appellant that he was so
intoxicated from drugs at that time as to be incapable of realizing the
conse quenc es of his sta temen t.
Id. Furthermore, the State points out that Defendant’s testimony at trial indicated
he had a clear, coherent, and comprehensive memory of the events on the
evening of the murder. Th e State argues that one may infer from the detailed
nature of the te stimo ny that D efend ant wa ived his right to counsel and right to
rema in silent knowingly and voluntarily, without impairment by the narco tics in his
system.
W e find that Defendant has not shown by a preponderance of the evidence
how he was prejudiced by counsel’s fail ure to further investigate his degree of
intoxication when h e delivere d the state ment to officers. Assuming that such
failure constituted deficient representation, and further assuming that trial counsel
were able to procure suppression of the statement, Defendant has not shown the
reason able pro bability of a diffe rent resu lt at trial. This issu e lacks m erit.
E. Failure to Adequately Investigate and Present Mitigation
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Defendant contends that his trial counsel breached the standard of care of
attorneys in cap ital crim inal ca ses to his pre judice by failing to adequa tely
investigate and present mitigation testimony in the sentencing phase of his trial.
He argues that counsel should have requested psycholo gical expe rts to
investigate and testify regarding his extensive history of poor mental health and
substance abuse. He maintains that because of the aforementioned “rush” to the
post-conviction hearing in this case, post-conviction counsel did not have tim e to
adeq uately locate and present this evidence . See supra Part I. We affirm the
decision of the post-conviction judge, who stated,
Petition er’s trial attorneys testified that th ey chos e not to
pursue a mental defense at sentencing because it did not me sh with
the petitioner’s defense that Greg Peters was the assailant and
because much of the petitioner’s psychological history revealed
negative aspects of his character that the pro secu tor cou ld
capitalize on if mental c apacity was put at issue . His trial attorneys
also stated that any history of blackouts that the petitioner may have
exper ience d had abso lutely nothin g to do with this case. A review
of the exhib its relating to the petitioner’s mental history reveals that
the petitioner suffered from long term drug abuse. There is also an
escalating pattern of anger control problems noted in the
psychological history. Besides the negative aspects of the
escalating anger control problems, the reports all state a negative
progn osis due to the petitioner’s unwillingness to undergo a proper
course of treatment. Furthermore, after a thorough review of the
overwhelming evidence presented at trial, the court notes that the
petitioner testified extens ively regarding the events leading up to the
victim’s death. Thus, the trial court agrees with trial counsel that any
history of blackouts that the petitioner may have experienced had
very little, if anything, to d o with the e vents relating to this offense.
Quite simply, the court concludes that the petitioner ha s failed to
meet his burden of proof with respect to these allegations by his
failure to show how he was prejudiced by any of counsel’s acts or
omissions.
W e agree entirely with the post-conviction court’s exh austive and co mprehe nsive
review of th is issue. T his issue lacks m erit.
E. Improper Standard for Effective Assistance
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Finally, Defendant asserts that the post-conviction judge used an improper
standard to determine whether his trial counsel had been ineffective by relying
on an outcome- or result-determinative test for prejudice. As the State notes, the
trial court rec ited in its Find ings of Fa ct and C onclusio ns of Law in this case ,
In order to be granted relief on the grounds of ineffective assistance
of counsel, the petitioner must establish that the advice given or the
services rendere d were n ot within the range of competence
demanded of attorneys in crimin al cases and that “there is a
reaso nable probability that, but for counsel’s unprofessional errors,
the resu lt of the proc eeding would h ave bee n different.”
(Quoting Strickland v. Washington, 466 U.S. 668, 693 (1984)). Thus, we
conclude that the trial court knew and applied the proper standard to determine
wheth er De fenda nt suffe red the ineffec tive ass istanc e of co unse l.
As our Supreme Court stated in Henly v. State, 960 S.W.2d 572, 580
(Tenn. 19 97),
Because a petitioner must establish both prongs of the test to
preva il on a claim of ineffective a ssistanc e of coun sel, failure to
prove either deficient performance or resulting prejudice provides a
sufficient basis to deny relief on the claim. Indeed, a court need not
address the components in any particular order or even address
both if the defendant makes an insufficient showing of one
comp onent. Strickland, 466 U.S. at 697, 10 4 S.Ct. a t 2069; Goad,
938 S.W.2d at 370.
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V. HEINOUS, ATROCIOUS, AND CRUEL AGGRAVATOR
In his next assignment of error, Defendant argues that the post-conviction
court erred by failing to find that the “heinous, atrocious, and cruel” aggravating
circumstance (HAC) for se ntencing wa s unconstitutiona lly vague. The State
contends that this issue was previously determined by the Tennessee Supreme
Court on direct a ppeal. See State v. McNish, 727 S.W.2d 490, 494 (Ten n. 1987).
In McNish, the supreme court concluded that the evidence was sufficient
to show that the murder was especially heinous, atrocious, or cruel and
demonstrated torture an d depra vity of mind. Id. (citing Tenn. Code Ann. § 39-2-
203(i)(5) (repeale d)). It is also ap parent from th at opinion that Defendant
challenged “the constitutionality of the Tennessee statutory provisions respecting
the death pen alty in first degre e murd er case s” on elev en poin ts of law. Id.
Howeve r, because the supreme court declined to addre ss the se sp ecifica lly, this
Court cann ot dete rmine from th at opin ion wh ether D efend ant sp ecifica lly
challenged this aggravator as unconstitutionally vague, as he does in this ap peal.
Therefore , we will not consid er the issu e previou sly determ ined, as th e State
urges.
Nevertheless, Defendant is not entitled to relief on this issue. The trial
court instructed the jurors that to impose the death penalty, they must find
beyond a reasonable doubt that “[t]he murder was especially heinous, atrocious
or cruel in that it involved torture or depravity of mind.” Tenn. Code Ann. § 39-2-
203(i)(5) (repealed an d replaced in 1 989 by § 39-13-204(i)(5), which states, “The
murder was e spec ially hein ous, a trociou s, or cru el in that it involved torture or
serious physical abuse beyond that necessary to produce death . . . .”). Though
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the statute no longer contains this form of the aggravator, the Tennessee
Supreme Court has many times affirmed its constitutionality and affirmed death
sentences based upon its application. E.g., King v. Sta te, 989 S.W.2d 319, 326
(Tenn. 1999); State v. Hall, 976 S.W .2d 121 , 162-63 (Tenn . 1998); State v.
Cauthern , 967 S.W.2d 726, 732-33 (Tenn. 1998) (holding that had the jury been
instructed properly—on the pre-1989 § 39-2-203(i)(5) aggravator—the evidence
would have be en sufficien t to establish the factor); State v. Hines, 919 S.W.2d
573, 584 (T enn. 19 95); Hartm an v. State , 896 S.W .2d 94, 10 6 (Ten n. 1995);
State v. Black, 815 S.W .2d 166 , 181-82 (Tenn . 1991); State v. Williams, 690
S.W.2d 517, 526-3 1 (Tenn. 1985) (determining that the instruction was
cons titutiona l, but tha t the evid ence did not suppo rt its applicatio n); State v.
Middlebrooks, ____ S.W.2d ____ (Tenn. 1999) (pre-1989 § 39-2-203(i)(5)
aggravator ag ain found to withsta nd constitutional attac k).
In the second prong to Defendant’s challenge to the HAC aggravator, he
argues that the jury enga ged in impermissible “double counting” when it found the
applicab ility of the “heinous, atrocious, and cruel” aggravator, relying upon State
v. Middlebrooks, 840 S.W.2d 317 (Tenn. 19 92), for supp ort. Th e crux o f this
argument is that the State impermissibly used the sam e eviden ce— blows to the
victim’s skull— to prove b oth (1) the actus reas of the offense of murder, and (2)
the aggrava ting factor w hich perm its the jury to se ntence Defen dant to death. He
contends, “[I]t was the b lows to the [victim’s] h ead tha t ‘hastene d’ the dea th and
therefore the sam e blows , especia lly without so me inte nt that they cause the
victim not to die imm ediately, cannot also be used to p rove HAC .”
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In a case featuring a similar argument to the case at bar, the Tennessee
Supreme Court addressed a contention that the same evidence was impro perly
used to support two differe nt statutory a ggravato rs. State v. Hall, 958 S.W.2d
679, 692 (T enn. 1 997). T he co urt initially n oted, “C ontrar y to the d efend ant’s
assertion, Middlebrooks did not embrace the broad principle of double counting
. . . which pre cludes th e use o f the sam e eviden ce to establish more than one
aggravating circumstanc e.” Id. The court nevertheless concluded that the same
evidence had no t been u sed to su pport bo th aggravators, recognizing that “[t]he
jury’s finding of the (i)(5) [HAC] circumstance was based upon the torturous
means by which the defendant chose to kill the victim, and the suffering she
endured p rior to her death.” Id.
W e agree that applying the HAC aggravator requires a jury to consider
whether the instance of murder has been aggravated by the manner and
circumstances surrounding the death—a distinction assisted by the use of the
adverb “especially” and the concept of “torture,” which elevate the level of atrocity
to a degree beyond the means or method of the murder. The foregoing issue
lacks m erit.
VI. ELECTROCUTION AS CRUEL AND UNUSUAL PUNISHMENT
In his next issue, Defendant contends that the death penalty, as carried out
by electrocution, constitutes cruel and unusual punishment. The State argues
that this issue has been waived, and the trial court so found, noting that
Defendant “failed to present this allegation at any p rior pro ceed ing.” T his Court
is constrained to agree.
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Tennessee Code An notated § 40-30-206 provides:
A ground for relief is waived if the petitioner personally or
through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the
ground could have been presented unless:
(1) The claim for relief is based upon a constitutional right not
recognized as existing at the time of trial if either the fe deral or sta te
constitution requires retroactive application o f that right; or
(2) The failure to present the ground w as the re sult of state
action in violation of the federal or state constitution.
Id. § 40-30 -206(g). Defendant did not present this issue upon direct appeal, and
we therefore con sider it waived. Furthermore, the issue lacks merit, as also
noted by the trial court within its Findings of Fact and Conclusions of Law issued
following Defe ndan t’s pos t-conv iction h earing. See, e.g., State v. Pike, 978
S.W.2d 904, 92 5 (Ten n. 1998 ); State v. Cazes, 875 S.W.2d 253, 268 (Tenn.
1994); State v. How ell, 868 S.W .2d 238 , 258 (T enn. 19 93); State v. Black, 815
S.W .2d 166 , 179 (T enn. 19 91).
VII. JURY INSTRUCTION ON MITIGATING FACTORS
In his seven th issue, D efenda nt argue s that the trial cou rt impro perly
instructed the jury at sentencing, resulting in a denial of his right to individualized
sentencing. He alleges that the mitigation instruction given at his sentencing
hearing “failed to adequately inform the jury of its ability to consider non-statu tory
mitigation ,” citing Hitchcock v. Dugger, 481 U.S. 39 3 (1987 ). Defend ant asse rts
that the trial court failed to address this issue in its Findings of Fact and
Conclusions of Law. The State responds (1) that the jury was indeed instructed
that it must co nsider an y mitigation evidence presented, not limited to those
enumerated; and (2) that contrary to Defendant’s reading, Hitchcock holds a trial
court cannot instruct a jury not to consider evidence of non-statutory mitigating
factors.
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In Hitchcock, Justice Scalia, speaking for the Court, found that “it could not
be cleare r that the adviso ry jury wa s instructed not to consider, and the
sentencing judge refused to consider, evidence of nonstatutory mitigating
circumstan ces”; and it remanded the case, holding that the proceedings at the
original sentencing did not comport with Skipper v. South Carolina, 476 U.S. 1
(1986), Eddings v. Oklahoma, 455 U.S. 104 (1982), and Lock ett v. Oh io, 438
U.S. 586 (19 78). Id. at 398 -99. La ter, in his dissenting opinion to McKo y v. North
Carolina, 494 U .S. 433 (1990 ), Justic e Sca lia ackn owled ged, “T he prin ciple
established by [Skipper, Eddings, and Locke tt, inter alia] is that a State may not
preclude the sente ncer from considering and giving effect to evidence of any
relevant mitigating circums tance p roffered b y the defe ndant.” Id. at 1245 (Scalia,
J., dissen ting).
Upon a review o f the decis ions of the United States Supreme Court, we
conclude that the trial court did not err by its instruction to the jury regarding
statutory and non-statutory mitigating circumstances. The instruction give n in this
case provided, “In arriving at the punishment the jury shall consider, as
heretofore indicated, any mitigating circumstance which shall include, but not be
limited to the following: [enum eration of statutory factors ].” We follow the law in
this state: that such an instruction, which replicates the statutory terms provided
in Tennessee Code Annotated § 39-13-204(j), not only does not in any manner
preclude the jury from conside ring non -statutory m itigation, but in fact
affirma tively directs the jury that it shou ld consider any mitigating circumstance,
statutory and no n-statuto ry. See State v. S mith, 857 S.W .2d 1, 22 (Te nn. 1997).
VIII. WAIVER OF ADDITIONAL ISSUES
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Finally, Defenda nt argues that the post-conviction co urt erred by
considering several post-con viction issue s waived . Specifica lly, he asse rts that
the court improperly considered his arguments regarding the constitutionality of
the death penalty waived because the conte ntions su pported a prope r post-
conviction argument on the ineffective assistance of his trial cou rt for failing to
constitution ally challen ge the d eath pe nalty on d irect appe al.
Defendant provides a lengthy discourse on the law of waiver, and by
footnote indicates that he desires to preserve this issue for later review . Despite
this wish, we need not determine whether Defendant argued below that his trial
counsel were ineffective for failing to challenge the cons titutionality of the death
penalty (which would certainly be a permissible a rgumen t, not subject to waiver,
in post-con viction proc eeding s). Rathe r, we need only recognize what the trial
court held—that none of his challenges to the co nstitutiona lity of the dea th
penalty bears m erit. See, e.g., State v. Cazes, 875 S.W.2d 253, 268-69 (Tenn.
1994); State v. S mith, 857 S.W.2d 1, 22 (Tenn. 1993). Therefore, Defendant has
not and cannot satisfy the prejudice prong of the Strickland test for ineffective
assistance of couns el. See Strickland v. Washington, 466 U.S. 668, 687
(1984). 7
7
To facilitate later review, those issues Defendant argues here (which he claims
support a contention of ineffective assistance of counsel) are: that Tennessee’s death penalty
statute (1) allows the jury to afford too little weight to non-statutory mitigating factors; (2) does
not require the jury to determine that death is the appropriate punishment; (3) does not require
written findings of fact relative to the presence of aggravating and mitigating factors, thereby
precluding effective appellate review; (4) allows the State to argue last in the sentencing phase;
(5) prohibits the jury from being informed of the consequences of a non-unanimous verdict in
the sentencing phase; (6) does not allow the correction of misconceptions about the length of
a life sentence, parole eligibility, consecutive versus concurrent sentences, the cost of
incarceration versus the cost of execution, the deterrent effect of the death penalty, and the
idea that electrocution causes instantaneous and painless death.
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Because we have concluded that none of Defendant’s issues for review
bear merit, we affirm the decision of the trial cou rt denying post-con viction relief.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
___________________________________
L. T. LAFFERTY, SENIOR JUDGE
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