IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER SESSION, 1998 March 31, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9712-CR-00546
)
Appellee, )
)
) SULLIVAN COUNTY
VS. )
) HON. PHYLLIS H. MILLER
BILLY G. BARNETT, ) JUDGE
)
Appe llant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
RICHARD A. SPIVEY JOHN KNOX WALKUP
142 Cherokee Street Attorney General and Reporter
Kingsport, TN 37660
TODD R. KELLEY
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
H. GREELEY WELLS, JR.
District Attorney General
BARRY STAUBUS
Assistant District Attorney General
Blountville, TN 37617
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The petitioner, Joseph Barnett, appeals as of right from the denial of his petition
for post-conviction relief by the Claiborne County Criminal Court. He seeks relief from
his conviction following a jury trial for first degree murder, a Class A felony, resulting in
a sentence of life imprisonment. He claims that the trial court incorrectly found that he
received the effective assistance of counsel. Specifically, the petitioner contends that
his trial attorney failed to preserve on the record his motion for a psychiatric expert,
thereby precluding him from showing on appeal a particularized need for the expert. He
also argues that his attorney was ineffective because he failed to conduct the motion
hearing ex parte. The state argues that the trial court properly denied the post-
conviction petition. We agree.
At the evidentiary hearing, the petitioner testified that he was confined to a
wheelchair as a result of a house fire in 1983 that required both of his legs to be
amputated. He said he was hospitalized for mental illness at Kalamazoo State Hospital
in Michigan and Lakeshore Mental Health Institute in Knoxville. He said that from 1983
to 1990, he was taking various prescription drugs, and he often had blackouts. He said
he was not present when his attorney made a motion for a psychiatric expert, and he
did not know that his attorney intended to use insanity as a defense.
On cross-examination, the petitioner said that he believed the victim, his uncle,
was not dead. He said he continued to believe that the victim was not dead, even after
his attorney furnished him with the victim’s death certificate and autopsy photographs.
Jessie Jones, the petitioner’s mother, testified that the petitioner complained of a
severe headache for three days before the murder. She said the petitioner previously
-2-
had been hospitalized for mental problems after he hit her. She said the petitioner
thought the victim was still alive.
On cross-examination, Ms. Jones said she discussed the petitioner’s mental
problems with his attorney. She said the petitioner was withdrawn and would not talk to
anyone but her. She said that at trial, the petitioner testified that he drank moonshine
throughout the day of the murder.
The petitioner’s trial attorney testified that the facts of the case were undisputed
and that several witnesses saw the petitioner shoot the victim. He said he felt the
petitioner’s only viable defenses were mental deficiency and perhaps voluntary
intoxication. He said that he filed a notice of his intent to use insanity as a defense on
November 28, 1990. He testified that the petitioner refused to believe that the victim
was dead.
The attorney testified that he believed that the law at the time of trial did not
provide for psychiatric experts for indigent defendants in noncapital cases. He said that
nevertheless, he made a motion for a psychiatric expert because he wanted to show
that the petitioner’s mental problems, combined with his use of drugs and alcohol,
militated against premeditation and deliberation. He said that the motion was made
orally, and it was not transcribed. He said that a few days later, when he realized the
motion had not been made a part of the record, he orally synopsized the arguments
made and the trial court’s denial of his motion. The synopsis was as follows:
Your Honor, this last Friday, April 4th, I filed a motion for an expert witness
in this matter. I believe it is on file in the Clerk’s office. We had on
Wednesday, April 2nd, received the latest medical records from Lakeshore
Mental Health and at that time, there was a mention in the neurological
evaluation by Dr. Michael L. Eisenstadt, M.D., Ph.D. that Mr. Barnett had a
mildly abnormal EEG, suffered from something called encephalopathy and
that he recommended a CT scan to be run. We discovered on that date,
Wednesday, April 2nd, that no CT scan had been run at Lakeshore Mental
Health and we were told that it was simply a time problem. That they weren’t
able to get it run during the time that Mr. Barnett was there.
-3-
Upon conferring with a Dr. Eric S. Ingram,1 who is a neuropsychologist
. . . concerning the findings of encephalopathy and abnormal EEG, Dr.
Ingram essentially made me aware of the fact that the defendant probably
had some sort of cognitive brain damage which would affect his mental
ability and capacity to understand his actions, although it might not mean that
he was insane or that he was incompetent to stand trial could effect what
happened at the time when this incident occurred [sic]. He suggested that
Mr. Barnett, from those findings, could be suffering from traumatic stress
disorder, a depressive disorder, and/or organic brain damage, as well as the
intoxication that is in the record here. So, he suggested that a CT scan be
run and quite likely that a CT scan would not show findings of
encephalopathy, but that a MIR or a P-3-100 evoked potentials examination
would be more likely to show the extent of whatever thought pattern disorder
there could have been.
In response to that motion - we brought that up off the record on
Friday and I believe it was Your Honor’s ruling that at that time our motion for
an expert witness was denied, but that you suggested that we get together
and have a CT scan run on Monday, which would have been yesterday, April
8th. That CT scan was run at the local hospital . . . [The doctor] has orally
given us a report that the CT scan showed nothing abnormal. He also
informed me that a CT scan would show things like tumors and things that
were abnormal within the growth of the brain, but something along the lines
of encephalopathy would be more distinguished by things like EEGs and
MIRs, and P-3-100s types of tests.
So, that is the status of it now. And I would like to preserve my
objection to the ruling . . .
The petitioner’s trial attorney also said he filed a written motion setting forth the tests he
believed Dr. Engum would perform and why those tests were necessary.
On cross-examination, the petitioner’s trial attorney said that the record fairly and
accurately depicted his recollection of the presentation made to the trial court regarding
his motion for a psychiatric expert. He said that nothing pertinent appeared to be left
out of the record and that he included everything that he thought was important in order
to perfect the record for appeal. He said that after his motion was denied, he could not
find any witnesses, expert or lay, to support a theory of mental disease.
Martha Yoakum, the petitioner’s attorney on direct appeal, testified that she
believed the petitioner’s trial attorney was ineffective by failing to preserve the record
1
The synop sis re fers to the doct or as “Eric S. Ing ram ,” but t he re cord reflec ts tha t his n am e is
actually Eric S. Engum.
-4-
regarding his motion for a psychiatric expert and by failing to marshall more proof of a
particularized need for a psychiatric expert. She said that when she argued the
petitioner’s case before the supreme court, their questions indicated that they were very
concerned that the motion hearing was not transcribed. She conceded that the court’s
written opinion did not allude to this concern. She said that the petitioner’s trial attorney
should have had friends or family members testify at the motion hearing regarding the
petitioner’s strange behavior in order to show a particularized need for an expert. She
said she believed that without the testimony of an expert psychiatrist, the petitioner was
denied a fair trial.
No other witnesses were presented at the evidentiary hearing. At its conclusion,
the trial court determined that the petitioner was not denied the effective assistance of
counsel, finding as follows:
The record reveals that at the time this case was being processed through
the Criminal Court the following factors all came into play:
(1) Tennessee statutes appeared to authorize such extraordinary expenses
in capital cases but not in non-capital cases. (The instant case was not a
capital case).
(2) The Court expressed its sympathy for the request but declined to
contravene the statute.
(3) Counsel . . . raised the question and preserved it for review on appeal.
(4) The Tennessee Department of Mental Health found the petitioner
competent to stand trial and determined that a defense of insanity could not
be supported. The Mental Health Department report suggested that a CT
scan might be revealing (why that Department did not conduct such a scan
is not known).
(5) Since the scan was suggested by the Department of Health, but not
performed, the Trial Court acting in the fullness of precaution ordered it done
at the Claiborne County Hospital, with the expense to be taxed as costs.
The test was done and the report was negative.
(6) Trial counsel produced a letter from a qualified expert setting out a large
number of conditions which might be revealed by further and more detailed
study by an expert of defendant’s choosing. This Court felt that the
extraordinary authorization of funds to determine what might be revealed
was outside its statutory authority.
....
-5-
The argument that trial counsel should have put more evidence in the record
on the subject presupposes that such evidence existed at that time. There
is no showing that such evidence was available. There is no showing based
on the post-conviction hearing that such evidence existed.
....
This Court finds that defense counsel did not render “ineffective assistance
of counsel” but rather preserved a question of first impression for appeal, put
as much evidence in the record as he had available and otherwise
adequately represented the defendant/petitioner.
The procedural history of this case warrants explanation. In 1985, the United
State Supreme Court held in a capital case the following:
[W]hen a defendant demonstrates to the trial judge that his sanity at the time
of the offense is to be a significant factor at trial, the State must, at a
minimum, assure the defendant access to a competent psychiatrist who will
conduct an appropriate examination and assist in evaluation, preparation,
and presentation of the defense.
Ake v. Oklahoma, 470 U.S. 68, 83, 105 S. Ct. 1087, 1096 (1985). The Court also
indicated that a hearing on a defendant’s motion for a psychiatric expert should be held
ex parte. Id., 470 U.S. at 83, 105 S. Ct. at 1097. On direct appeal to this court, the
petitioner in the present case relied on Ake to support his contention that the trial court
should have granted his motion for a psychiatric expert. However, this court concluded
that the holding in Ake was limited to capital cases and that there was no statutory
authority in Tennessee for the appointment of a psychiatric expert in noncapital cases.
State v. Joseph Barnett, No. 03C01-9304-CR-00113, Claiborne County (Tenn. Crim.
App. June 28, 1994), aff’d on other grounds, 909 S.W.2d 423, 424 (Tenn. 1995).
On appeal, however, our supreme court held that Ake was not limited to capital
cases. Barnett, 909 S.W.2d at 424. The court determined that an ex parte hearing is
required on a defendant’s request for a psychiatric expert. Id. at 429. The court also
held that due process requires that an indigent defendant have a fair opportunity to
present his defense, including in noncapital cases. Id. at 429. The court held that in
order for an indigent defendant to receive a state-funded psychiatric expert, the
defendant must make a threshold showing of a particularized need for the expert. Id. at
-6-
431. To establish this need, the defendant “must show that a psychiatric expert is
necessary to protect his right to a fair trial. Unsupported assertions that a psychiatric
expert is necessary to counter the State’s proof are not sufficient.” Id. The court
concluded that in the petitioner’s case, the petitioner failed to establish a particularized
need for an expert, concluding that the tests sought by him were only in the “‘mere hope
or suspicion’ that favorable evidence could be obtained.” Id. (quoting State v. Mills, 420
S.E.2d 114, 117 (1992)).
The petitioner now claims that the trial court erroneously denied his post-
conviction petition, arguing that his trial attorney’s failure to preserve the record
regarding his motion for a psychiatric expert resulted in an inability to show a
particularized need for an expert. Thus, he argues his trial attorney was ineffective. He
also argues that his trial attorney was ineffective by failing to conduct the motion
hearing ex parte. Finally, he argues that if a psychiatric expert had been available at
trial, the expert would have testified that the petitioner’s intoxication at the time of the
offense precluded a finding of premeditation and deliberation. The state contends that
the petition was properly denied.
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).
-7-
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.
In a post-conviction case, the burden is on the petitioner to prove his grounds for
relief by clear and convincing evidence. T.C.A. § 40-30-210(f). On appeal, we are
bound by the trial court’s findings unless we conclude that the evidence preponderates
against those findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).
The petitioner has the burden of illustrating how the evidence preponderates against
the judgment entered. Id. We conclude that the petitioner has failed to meet this
burden.
The petitioner has failed to show how his trial attorney’s failure to transcribe the
hearing for a psychiatric expert prejudiced him. First, he presented no evidence at the
post-conviction evidentiary hearing to support his assertion that there was a
-8-
particularized need for a psychiatric expert. There was no testimony from any witness,
lay or expert, regarding the petitioner’s need for further psychiatric evaluation that was
not presented at the motion hearing or at trial. In addition, the petitioner has failed to
show how the manner in which his trial attorney preserved the record prejudiced him.
Obviously the better practice would have been for the trial attorney to have transcribed
the motion hearing. However, on direct appeal, the appellate courts had available for
their review the restatement of the argument at the motion hearing to which no
objection was made by the state, a voluminous set of the petitioner’s medical records, a
CT scan, and the trial transcripts, all of which document the petitioner’s mental history.
Thus, there was ample evidence from which a reviewing court could have determined
whether the petitioner satisfied the threshold showing of a particularized need for a
psychiatric expert.
We also do not believe that the petitioner’s trial attorney was ineffective for failing
to hold the motion hearing ex parte. Generally, ex parte hearings are disfavored in
Tennessee. Barnett, 909 S.W.2d at 428. However, in Barnett, our supreme court
determined that Ake requires an ex parte hearing on a motion for a psychiatric expert.
Barnett, 909 S.W.2d at 428. Before our supreme court’s decision in Barnett, there was
no reason for petitioner’s trial attorney to anticipate that an ex parte hearing would be
required. We do not believe that the petitioner’s trial attorney was ineffective for failing
to anticipate an appellate court decision, nor do we believe that the petitioner was
prejudiced.
Finally, the petitioner argues that his attorney was ineffective because if his
attorney had made the requisite showing of a particularized need, and if the hearing
had been transcribed, then a psychiatric expert would have testified about the effects of
the petitioner’s voluntary intoxication on his mental state at the time of the offense. The
-9-
petitioner’s argument is nothing more than speculation, and the petitioner failed to offer
any evidence at the evidentiary hearing to support such a contention.
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
____________________________
David H. Welles, Judge
-10-