Brimmer v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

AUGUST 1997 SESSION

FILED
DAVID ALLEN BRIMMER, * C.C.A. # 03C01-9703-CC-00083

Appellant, * ANDERSON COUNTY

VS. * Hon. James B. Scott, Judge
September 15, 1998
STATE OF TENNESSEE, * (Post-Conviction--Death Penalty)

Appellee. *
Cecil Crowson, Jr.

Appellate C ourt Clerk

For Appellant: For Appellee:

W. Thomas Dillard John Knox Walkup
Ritchie, Fels & Dillard, P.C. Attorney General and Reporter
606 West Main Street
Suite 300, P.O. Box 1126 Michael E. Moore
Knoxville, TN 37901-1126 Solicitor General

Darian B. Taylor
Assistant Attorney General
Criminal Justice Division
Cordell Hull Building, Second Floor
4025 Fifth Avenue North
Nashville, TN 37243-0493

Jan Hicks
Assistant District Attorney General
Room 126, Anderson County Courthouse
Clinton, TN 37716

OPINION FILED:__________________________

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

GARY R. WADE, JUDGE
 OPINION

The petitioner, David Allen Brimmer, was convicted of first degree

murder on March 1, 1991. A jury imposed the death penalty based upon a single

aggravating circumstance: that the petitioner was engaged in the commission of a

robbery at the time of the crime. Tenn. Code Ann. § 39-13-204(i)(7). On direct

appeal, the conviction and sentence were affirmed by our supreme court. State v.

Brimmer, 876 S.W.2d 75 (Tenn. 1994). On April 18, 1995, the petitioner filed a

post-conviction petition alleging, among other things, that he was denied the

effective assistance of counsel. At the conclusion of the evidentiary hearing, the

trial court denied relief.

In this appeal of right, the petitioner presents the following issues for

our review:

(I) whether the petitioner was denied the
effective assistance of counsel;

(II) whether the petitioner's confession should
have been excluded from the evidence;

(III) whether there was prosecutorial
misconduct during the course of the trial;
and

(IV) whether various constitutional violations
and trial errors entitle the petitioner to relief
from his death sentence.

We affirm the denial of post-conviction relief on the conviction of first

degree murder. Due to the ineffective assistance of defense counsel in the

sentencing phase of the trial, we reverse the penalty of death and remand to the trial

court for a new hearing.

On the evening of October 22, 1989, the victim, Rodney Compton,

2
was to have returned to the Knoxville airport from a cruise to the Bahamas. Sixteen

days later, his body was discovered in a hayfield in rural Loudon County. An

autopsy established that his neck had been cut. Suffocation and strangulation were

the probable causes of death.

On February 3, 1990, the petitioner was arrested on unrelated charges

in Refugio, Texas. It was determined that he was driving the victim's pickup truck.

The victim's jacket and a pair of handcuffs were inside the vehicle. Three weeks

later, the petitioner confessed that he had killed the victim. He told officers that on

the evening of October 22, the victim had offered him a ride in his truck. While

conceding that he had intended to rob the victim, the petitioner claimed that when

the victim made sexual advances, he represented to the victim that he was a police

officer and then "arrested" and handcuffed the victim. The petitioner revealed that

he then drove the victim to a location in Anderson County, choked him to death, and

returned to Loudon County where he disposed of the body. While being returned to

this state from Texas, the petitioner informed officers that he had killed the victim in

a park in Anderson County. Another source indicated that the petitioner had been in

Anderson County at the time of the victim's disappearance. Other evidence

established that only a few days after the disappearance of the victim, the petitioner

was seen in possession of the victim's truck, his jacket, and several of the souvenirs

that had been purchased in the Bahamas. See Brimmer, 876 S.W.2d at 78.

During the course of trial, the petitioner was initially represented only

by Attorney Thomas DePersio. When the petitioner complained to the trial court

about his lack of communication from DePersio, Michael Clement was appointed.

Clement, who had three years' experience in the law practice, had not been

previously involved in a capital case. He recalled that he had not utilized an expert

3
in any prior criminal case, although he "may have [used one] in a personal injury

matter." Clement, who had completed only three jury trials before this case, was

appointed as additional counsel approximately two months prior to trial. 1 An

investigator, Mike Cohan, was employed to assist the petitioner and his attorneys

some five weeks prior to trial.

During the course of the evidentiary hearing on this post-conviction

claim, Clement testified that soon after his appointment, he became the first of

petitioner's attorneys to review the state's evidence. DePersio had not previously

done so. Clement recalled meeting with DePersio on several occasions prior to trial.

He also remembered that DePersio often drank beer during their meetings, some of

which started as early as 9:00 A.M. Clement, a solo practitioner, described

DePersio as having a heavy caseload as a public defender. Clement perceived

DePersio as having a substance abuse problem and remembered that DePersio

went to a bar at the conclusion of the penalty phase of the trial while the jury

engaged in its deliberations. DePersio was not present when the jury sentenced

Brimmer to death. Clement conceded that he made no complaints to either the

public defender or the Board of Professional Responsibility about DePersio's

conduct.

Prior to the trial, Clement had expressed concern to DePersio about

the petitioner's mental condition and suggested an evaluation. DePersio expressed

his belief that psychological proof was "voodoo" and "did not work." He also thought

it was not particularly relevant in this case because the petitioner had denied

1
Tennessee Supreme Court Rule 13 governs appointment of counsel in capital cases. Prior
to July 1, 1997, the rule provided, "[i]n a capital case two attorneys may be appointed for one
defe nda nt." T enn . Sup . Ct. R . 13, § 1 (prio r to am end me nt in 19 97) (e mp has is add ed). E ffec tive Ju ly
1, 1997, the rule provides that "at least two attorneys must be appointed to represent a defendant at
trial in a capital case." Tenn. Sup. Ct. R. 13, § 3 (b).

4
committing the crime. DePersio did, however, consent to a psychological evaluation

of the petitioner, which was later performed by Dr. Eric Engum. DePersio had no

objections to the psychological proof as long as Clement "had to find the person, []

do the research, [and] prepare.... It was [Clement's] issue."

Clement recalled that the hearing on the defense motion to suppress

the confession filed by DePersio was held long before his appointment to the case.

At the suppression hearing, DePersio did not raise any psychological issues

concerning the voluntariness or accuracy of the confession. Clement recalled

asking DePersio "why ... didn't he raise any psychological issues at the suppression

level."

Clement also recalled that he and Dr. Engum had done research on

the possibility of Prisoner of War Syndrome, based upon the twenty-one days the

petitioner served in solitary confinement prior to his confession in Texas. He

questioned DePersio's decision not to use Dr. Engum during the suppression

hearing. It was Clement's opinion that Dr. Engum would have been helpful in

establishing how Brimmer "could have been broken and given a confession."

Clement testified that when two attorneys represented a party

defendant, it was customary in the Anderson County trial court for the specific

attorney who conducted the cross-examination of a state witness to also take full

responsibility for making objections to any inappropriate questions by the state. He

remembered that DePersio, who cross-examined the Refugio County Sheriff, failed

to object to a statement during trial that the petitioner had "killed before." Clement

could not recall why he himself had not done so, but insisted his failure to object

was "unforgivable." He also could not think of any reason why there was no motion

5
for a mistrial or why the issue was not raised in the motion for a new trial. He

remembered, however, that DePersio had been effective in cross-examining some

of the state witnesses, creating inconsistencies among those present on the "killed

before" allegation. Clement claimed DePersio did not get involved with the

psychological components of the case because DePersio had insisted that "Dr.

Engum was [in his] bailiwick." Clement conceded that the trial court refused to grant

a request by the defense for instructions on the subject of mitigating circumstances

at the conclusion of the penalty phase of the proceeding.

Clement testified that he had given his best effort on behalf of the

petitioner, although much of his time investment had been after his regular business

hours. He utilized the discovery procedure soon after his appointment, had no

difficulty in communicating with the petitioner, and had access to a forensic team's

evaluation of the petitioner which showed the petitioner was competent to stand trial

and sane when he committed the offense.

The defense theory was that the petitioner did not commit the crime.

Clement testified that there had been no attempt to establish an insanity defense.

He explained that such a defense would have essentially required an

acknowledgment that the petitioner committed the murder, but that it was due to a

mental disease or defect. Clement recalled that the defense had been successful in

its effort to bar any reference to the specific details of the prior killing in

Massachusetts. The state had been ordered not to make any reference to the

occurrence.

Clement recalled that he felt the defense had been "gutted" during the

guilt phase when the trial court refused to allow Dr. Engum to testify. The defense

6
strategy included a representation to the jury that Dr. Engum would appear on

behalf of the petitioner. 2 Dr. Engum would testify that the confession was the result

of the Prisoner of War Syndrome. Clement "had no idea that Dr. Engum's testimony

was going to be disallowed during the guilt phase." The theory at trial was to "show

the jury that these people in Texas treated [Brimmer] like a prisoner of war and he ...

became a babbling idiot and said anything they wanted [him] to say. But that

[evidence] was disallowed by Judge Scott."

At trial, there were general instructions to the jury on mitigating

circumstances. The defense was allowed to argue that the petitioner was afflicted

with Borderline Personality Syndrome and Abandoned Child Syndrome.

At the evidentiary hearing, Dr. Eric Engum testified that at the time of

his examination, he had records and letters from the Devereux Foundation, the John

Byrne Center, the Ridgeview Psychiatric Hospital, and the Middle Tennessee Mental

Health Institute concerning the petitioner. He concluded that the petitioner was

competent to stand trial and that an insanity defense could not be supported. He

recalled that he had informed defense counsel in early January, at least six weeks

before the trial, that there was some evidence of mitigation. Dr. Engum had no

further contact with trial counsel until the date the trial began. He acknowledged,

however, that he conferred with defense counsel on a daily basis thereafter as to

the voluntariness of the confession. He recalled that defense counsel first talked to

him about mitigation evidence "an hour or so" before the penalty phase began. Dr.

Engum acknowledged that defense counsel never specifically asked about the

statutory mitigating circumstances, something which was typically done in his prior

2
See State v. Zimmerman , 823 S.W.2d 220, 221-22 (Tenn. Crim. App. 1991) (counsel found
ineffective for promising the jury during opening statement that a psychiatrist would attest to the
defend ant's "batte red wife s yndrom e" and the n failing to ca ll the witness ).

7
experience with capital cases. There was some mitigation evidence. Dr. Engum did

testify about his diagnosis of borderline personality disorder and specifically recalled

commenting about the possibilities associated with Abandoned Child Syndrome and

Burned Child Syndrome.

Dr. Ann Marie Charvat, a clinical sociologist, also testified at the

evidentiary hearing. Having been employed in approximately fifty capital cases, she

did not participate in the trial but, sometime afterward, had prepared a social history

assessment of the petitioner at the request of post-conviction counsel. While

acknowledging that she had not advertised the availability of her services prior to the

trial, Ms. Charvat assessed what, in her view, should have been done for the

petitioner on the subject of mitigation. Dr. Charvat prepared a report, called a

"mitigation time line," which was entered into evidence without objection from the

state. Dr. Charvat described the time line as "the outline that I would have followed

if I had done the investigation."

Dr. Charvat testified that she usually goes through various steps in

preparing mitigation for trial: (1) interviewing the defendant and attorneys; (2)

obtaining documentation of the individual's life beginning with birth records; (3)

interviewing witnesses she discovers from the documents; (4) interviewing

significant family members; and (5) clarifying mitigation factors for presentation to

the jury. In the petitioner's case, however, she only interviewed the attorneys from

the petitioner's trial, reviewed the materials provided by the attorneys and collected

a "substantial amount of documentation that included some school records [and]

some of his early intervention records." She also interviewed the petitioner

extensively. Other than petitioner's attorneys and the petitioner himself, Dr. Charvat

did not interview any other witnesses. On cross-examination, Dr. Charvat conceded

8
that she had no way of knowing if any of the witnesses uncovered in her

investigation would actually testify in court.

The mitigation time line report shows the petitioner's mother had a

"serious drinking problem" and neglected, malnourished, and abused the petitioner

and his siblings. When the petitioner was three years old, he was placed in foster

care and separated from his siblings. When he was seven, he was placed in the

Hansen foster home and subjected to severely "ritualized" physical abuse while in

their custody. He was also forced to live in the basement while the Hansen's

biological children lived in the main area of the house. The Hansen's natural

children were not abused.

At age thirteen, the petitioner was placed in Devereux Foundation, a

home for mentally disturbed children. At the initial evaluation, the petitioner reported

having numerous nightmares while living with his foster parents. The psychiatric

evaluation conducted by Devereux Foundation showed the petitioner suffered

Abandoned Child Syndrome and depression. The report indicated he also tended to

reject interpersonal relationships in order to avoid rejection. Devereux Foundation

reported the petitioner AWOL on occasion. He also ran away from his foster

placements on various occasions.

The petitioner left Devereux Foundation after graduating from high

school and lived as a drifter for several years. In 1982, at twenty years of age, he

met Mary Barber, who would become the mother of his two sons. He lived with her

sporadically. He was in and out of various hospitals for mental problems but never

remained in one hospital long enough to get any type of qualitative treatment.

Northwest Texas Hospital, where he stayed for less than one month, diagnosed him

9
with "atypical psychosis." A second stay at Northwest Texas Hospital resulted in a

determination that the petitioner suffered "no real signs of deficit or psychosis." A

third diagnosis by Northwest Texas Hospital was that the petitioner had factitious

disorder and anti-social personality disorder.

The mitigation time line also showed the petitioner had several

brushes with the law for theft offenses, burglary, disorderly conduct and malicious

mischief.

Attorney Tom DePersio, who had practiced law for eighteen years and

also had engaged exclusively in the criminal law as an assistant with the Public

Defender’s Office, had been involved in capital cases before that of the petitioner; in

the prior instances, however, the cases had been resolved without an actual trial.

He admitted that he had little contact with the petitioner during his representation

and conceded that he had done "some, not much" of the investigation. An

investigator from the Public Defender’s Office was available to gather files and other

information. DePersio acknowledged that there had been no effort to obtain Texas

records or to contact officers from that state prior to the pretrial suppression hearing

on the admissibility of the confession. He recalled filing a motion for services but

then not following through on the request. He also admitted that he had not sought

a psychological evaluation of the petitioner to assist in the suppression hearing.

DePersio, who admitted that he was abusing alcohol and cocaine at

the time of the trial, conceded that his abuse adversely affected his ability to give full

attention to matters relating to the petitioner at that time. He recalled that he had

filed an affidavit to that effect in the direct appeal. The Rule 12 report form of the

trial judge made no mention of any inadequacies in his representation. See Tenn.

10
Sup. Ct. Rule 12(D).3

DePersio recalled that the petitioner had filed a pro se "Motion to Elect

Counsel" on December 12, 1990. The petitioner alleged that he had not seen his

attorney since May, 1990. At the motion hearing, the petitioner testified that he was

not otherwise dissatisfied with his attorney and said, "[i]f I can just get to, you know,

talk to them once in a while and know what's going on." After the hearing, Clement

was appointed to assist in the representation of the petitioner.

DePersio claimed that the confession had been coerced. He

specifically recalled a vigorous attack on the credibility of the sheriff during cross-

examination. He acknowledged that he had not objected to the sheriff's reference to

the petitioner's comment that he had "killed before" because the reference, in

context, was not particularly damaging and to object would have emphasized the

point to the detriment of the petitioner. DePersio's cross-examination also

established that none of the other officers present during the interrogation had heard

the petitioner say "he had killed before."

In May of 1991, about two months after Brimmer's trial, DePersio was

3
After reviewing the trial court's Rule 12 Report to the Supreme Court, Assistant District
Attorney G eneral Ja n Hick s wrote th e trial judge a letter which states in pa rt:

[T]here is one glaring omission under Part D10
"significant d ata abou t defens e repres entation." ...
Tom DePersio left after the question of penalty was
submitted to the jury and did not return and was not
presen t when the death pe nalty verdict w as return ed.
This is, of course , a fact kn own to the Court ....
While it may be a question as to whether this was
"significant," it was certainly unusual, notable and
well-publicized and sinc e this is a de ath pena lty
cas e, we believ e it sh ould b e not ed in th e rep ort in a ll
fairness to the defe ndant an d the judic ial proces s.

This letter is included in the record as an apparent effort to correct the Rule 12
Repo rt.

11
placed on probation by the Board of Professional Responsibility. At that time, he

also went through a four-month period of treatment for the substance abuse

problem.

Ralph Harwell, who had practiced criminal law in the Knoxville area for

twenty-seven years, examined certain of the trial records. He had been asked to

determine whether defense counsel's performance "had measured up to an

objective norm in the profession at that time" and "whether or not any errors that

happened were so serious as to deprive the defendant of a fair trial." He was also

asked to determine whether there was a reasonable probability that effective

representation might have produced a different result. It was his opinion that the

performance of defense counsel fell below the standards existing in 1991. Harwell

pointed out that counsel should have had the petitioner examined by a psychiatrist

or psychologist before the suppression hearing. He believed that counsel’s failure to

raise the unreasonableness of the petitioner's detention without a probable cause

hearing in Texas fell below the minimum standards required in Tennessee and he

faulted counsel for failing to object or seek a new trial based on the sheriff’s

testimony that the petitioner admitted "killing before." He testified that the failure to

investigate until two months prior to trial, the failure to object to the trial court's

refusal to instruct on applicable statutory mitigating circumstances, and the failure to

include this issue in a motion for a new trial did not meet the minimum standards

required of attorneys in this state.

On cross-examination, Harwell acknowledged that DePersio’s affidavit

concerning his substance abuse problem, while filed as an exhibit with the appellate

brief, did not address his competence as counsel. He was aware that the supreme

court did indirectly address the issue, ruling that the defendant's brief contained

12
"innuendo and incomplete citations" and misleading argument. Brimmer, 876

S.W.2d at 78.

Dr. Sam Craddock, a licensed psychologist employed by the Middle

Tennessee Mental Health Institute, had testified in the sentencing phase of this trial.

After conducting a seventy-one day evaluation of the petitioner, his forensic team

had concluded that the petitioner was not mentally ill at the time of the offense and

that there was no basis for an insanity defense. At the evidentiary hearing, Dr.

Craddock recalled that the petitioner had not been "forthcoming" in supplying

informational sources which might have assisted the team in its evaluation. A

woman from Birmingham, Alabama, with whom the petitioner had resided for a time,

was contacted and interviewed by the forensic team. While she was deemed

credible, her comments about the petitioner were inconsistent with an insanity

defense. Dr. Craddock conceded on cross-examination that his diagnosis might

have been different had more information consistent with insanity been discovered.

Dr. Craddock recalled that the petitioner made no claim about being diagnosed at a

Virginia hospital in 1986 as suffering from atypical psychosis or other mental

disease. When asked if he would have been able to determine a psychosis, if

present, Dr. Craddock responded as follows:

We suspected a psychosis, and anticipated seeing one,
because he had been at Lakeshore [Mental Health
Institute in Knoxville] before he was sent to forensic
services. So we were watching carefully, and we saw
some mild symptoms [that] gave us a suspicion of him
being psychotic or schizophrenic. However, his behavior
during our interviews wasn't particularly consistent with
what he was like on the residential unit. And with the
opportunity to have the seventy-one days, we ruled out
that he was psychotic, while with us.

***

[O]ne of the tests that I gave was suggestive of symptom
exaggeration, and it was primarily his ability to function
well on the residential unit versus while he was during

13
 clinical interviews.

Tom Marshall, the Public Defender for Anderson County, who had

assigned DePersio to the case, testified that he had been involved in consultations

from time to time during the preparations for trial and had no concerns about the

quality of DePersio's performance. Marshall was aware of the petitioner's pretrial

complaints about his lack of contact with DePersio and was aware of the formal

hearing on the subject before the trial judge. He acknowledged receiving a few

complaints that DePersio occasionally had alcohol on his breath but contended that

he had investigated each complaint without finding corroborating evidence of

impairment or "any qualitative problem with his representation." Marshall testified

that he had represented the petitioner on direct appeal when DePersio resigned

from his employment as assistant public defender. Marshall believed that DePersio

and Clement were effective in their representation of the petitioner.

I

In this appeal, the petitioner first argues that he received the ineffective

assistance of counsel. He complains about the following specific deficiencies:

(a) abuse of alcohol and illegal drugs during
the period of representation;

(b) failure to provide regular consultation;

(c) failure to present psychological testimony at
the suppression hearing;

(d) failure to perform an adequate investigation;

(e) failure to address comments that the
petitioner had "killed before";

(f) failure to object to testimony about
petitioner's comments made during
transport from Texas to Tennessee;

(g) failure to prepare or present psychological

14
 testimony in the sentencing phase;

(h) failure to include all possible grounds for
relief in the motion for new trial; and

(i) failure to present as an issue the illegal
detention of the petitioner.

In order to establish that his counsel was ineffective, the defendant

must show that the advice given or services rendered were not within the range of

competence of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930 (Tenn.

1975). He must also establish that but for his counsel's deficient performance, the

results of the trial would have been different. Strickland v. Washington, 466 U.S.

668 (1984).

When defense counsel "entirely fails to subject the prosecution's case

to meaningful adversarial testing, there has been a denial of Sixth Amendment

rights that makes the adversary process itself presumptively unreliable." United

States v. Cronic, 466 U.S. 648, 659 (1984). If there has been "an actual breakdown

of the adversarial process," no prejudice need be shown. Id. at 658; Rickman v.

Bell, 131 F.3d 1150 (6th Cir. 1997), 4 cert. denied, 118 S. Ct. 1827 (1998).

The burden is on the defendant to show that the evidence

preponderates against the findings of the trial judge who, in this instance, found in

favor of the state. State v. Zimmerman, 823 S.W.2d 220, 224 (Tenn. Crim. App.

1991); Clenny v. State, 576 S.W.2d 12 (Tenn. Crim. App. 1978). The findings in

the trial court on questions of fact may not be reversed on appeal unless the

evidence preponderates otherwise. Zimmerman, 823 S.W.2d at 224; Graves v.

4
Except in Kentucky, when a prisoner voluntarily terminated his appeals, no death penalty has
been carried out in the Sixth C ircuit of th e Unite d State s sinc e the re lease of the S uprem e Cou rt's
opinion in Gre gg v. G eorg ia, 428 U.S. 153 (1976). Michigan has no death penalty. As of April 1,
1998, O hio, Kentu cky, and Tenn essee have 30 5 prisone rs on de ath row.

15
State, 512 S.W.2d 603 (Tenn. Crim. App. 1973).

In Strickland, the Court described the burden of proof as follows:

First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable. Unless a defendant
makes both showings, it cannot be said that the
conviction or ... sentence resulted from a breakdown in
the adversary process that renders the result unreliable.

466 U.S. at 687.

To establish prejudice, the evidence stemming from failure to prepare

a sound defense or present witnesses must be significant, but it does not

necessarily follow that the trial should have otherwise resulted in an acquittal. See

generally Nealy v. Cabana, 764 F.2d 1173, 1178-79 (5th Cir. 1985); Code v.

Montgomery, 799 F.2d 1481, 1483 (11th Cir. 1986). There must be a reasonable

probability that but for counsel's unprofessional error, "the result of the proceeding

would have been different," not that it necessarily would have been different.

Strickland, 466 U.S. at 693. The probable result need not be an acquittal. A

reasonable probability of being found guilty of a lesser charge, or a shorter

sentence, satisfies the second prong in Strickland. See Zimmerman, 823 S.W.2d at

225 (citing Chambers v. Armontrout, 907 F.2d 825, 832 (8th Cir. 1990)).

In Hellard v. State, 629 S.W.2d 4 (Tenn. 1982), our supreme court

made the following pronouncements:

Although ... we adopted a higher standard of
competence for the legal representation required in
criminal cases, we did not require perfect representation.

16
 Moreover, the defense attorney's representation, when
questioned, is not to be measured by "20-20 hindsight."

***

It cannot be said that incompetent representation
has occurred merely because other lawyers, judging from
hindsight, could have made a better choice of tactics....
[W]e know that a criminal trial is a very dramatic, vibrant
and tense contest involving many variables and that
counsel must make quick and difficult decisions
respecting strategy and tactics which appear proper at
the time but which, later, may appear to others, or even
to the trial lawyer himself, to have been ill-considered.

Id. at 9-10. In Hellard, our supreme court adopted the rationale of United States v.

DeCoster, 487 F.2d 1197, 1201 (D.C.Cir. 1973):

This court does not sit to second guess strategic and
tactical choices made by trial counsel. However, when
counsel's choices are uninformed because of inadequate
preparation, a defendant is denied the effective
assistance of counsel.

Hellard, 629 S.W.2d at 9. Our supreme court has observed that "[c]ourts are

particularly cautious in preserving the defendant's right to counsel at a capital

sentencing hearing." Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (internal

quotation marks omitted). W hen, as here, there has been no complete breakdown

of the adversarial process, the question becomes whether the defendant was

prejudiced by these deficiencies:

A convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel
that are alleged not to have been the result of reasonable
professional judgment. The court must then determine
whether, in light of all the circumstances, the identified
acts or omissions were outside the wide range of
professionally competent assistance. In making that
determination, the court should keep in mind that
counsel's function, as elaborated in prevailing
professional norms, is to make the adversarial testing
process work in the particular case.

Strickland, 466 U.S. at 690.

17
 (a)

The petitioner first argues that DePersio's "severe alcohol and cocaine

abuse problems" prior to and during the trial prevented DePersio from providing the

effective assistance of counsel. He argues that "Mr. DePersio's condition was, on

its own, enough to severely prejudice [the petitioner's] defense."

The proof at the evidentiary hearing showed that DePersio regularly

abused alcohol during the time he represented the petitioner. Attorney Clement

testified that DePersio would arrive at early morning meetings with a six-pack of

beer and that one or more of them would have already been consumed. Clement

recalled that DePersio was at a bar during jury deliberations on the penalty. He

believed DePersio to be "inebriated." DePersio acknowledged consuming "a lot of

alcohol and cocaine" during this time.

In State v. Hamrick, 688 S.W.2d 477, 481 (Tenn. Crim. App. 1985),

our court reviewed a claim of ineffective assistance where counsel suffered an

"acute illness during the trial." At one point during trial, counsel had to be taken to

the Loudon County Memorial Hospital. Id. The trial judge consulted with trial

counsel and indicated that he would declare a mistrial if necessary. Counsel

informed the trial judge he felt "good enough to continue." Id. On appeal, the

defendant argued he was denied the effective assistance of counsel. Relying on

Strickland's requirement of both deficiency in performance as well as a showing of

prejudice, this court denied relief. Id. at 482. Both deficiency and prejudice must be

shown. In this instance, the general condition of DePersio before or during the

course of trial would not, standing alone, entitle the petitioner to relief.

18
 There are few cases in this state in which a claim of ineffective

assistance has been made due to counsel's intoxication. In State v. John C.

Garrison, however, one of the claims of ineffective assistance of counsel was that

counsel was absent from work and did not adequately prepare for trial "due to

depression or excessive alcohol use." C.C.A No. 03C01-9702-CC-00047, slip op. at

25 (Tenn. Crim. App., at Knoxville, Feb. 27, 1998), app. filed, April 29, 1998. In

Garrison, this court ruled that there must be a showing of prejudice before relief

could be granted on the basis of alcohol abuse. Id.5

These rulings are consistent with the majority of jurisdictions. See

Jeffrey L. Kirchmeier, Drink, Drugs, and Drowsiness: The Constitutional Right to

Effective Assistance of Counsel and the Strickland Prejudice Requirement, 75 Neb.

L. Rev. 425, 453 (1996). The federal courts have ruled that the abuse of drugs or

alcohol is not "in and of itself, relevant to an ineffective assistance claim." Berry v.

King, 765 F.2d 451, 454 (5th Cir. 1985). The Fifth Circuit has followed this

reasoning even where the allegations supporting the ineffective assistance claim

were that the defendant could smell alcohol on the attorney's breath during the trial

and that, immediately afterward, the attorney entered a facility for treatment of

alcohol abuse. Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993).

It is of particular concern that in a case of this magnitude, one of the

two defense attorneys suffered from alcoholism or drug addiction. Professional

standards demand much of the bench and the bar. Litigants expect and deserve

sobriety among the officers of the courts. These circumstances reflect poorly on the

criminal justice system. Yet alcohol or drug abuse by the defense attorney, without

5
Garrison also challenged the performance of DePersio. The Court of Criminal Appeals found
that use of excessive alcohol was no t a basis for relief but did grant relief because of cou nsel's failure
to com mun icate a plea offer to the defend ant prior to trial. Garrison, slip op. at 25.

19
specific proof of its effect on performance, does not merit relief.

(b)

The petitioner's next complaint is that counsel failed to engage in

regular consultation. Prior to trial, the petitioner filed a motion seeking new counsel.

The petitioner complained that he had not seen his attorney in seven months,

except for a few moments before the suppression hearing, which had been held

some five months earlier. At the hearing, the petitioner described their meeting as

follows:

We didn't have any kind of conference. It was just, I
came into the court room and came up here, did it, and
then went back. No follow up and nothing beforehand--
before or after.

DePersio admitted that he did not consult with the petitioner. Clement's testimony

corroborates the claim that DePersio did not engage in any meaningful

conversations with the petitioner. Yet Clement testified that he himself had met with

the petitioner on several occasions.

The trial court found as follows:

(D) Failure to consult with the petitioner at all crucial
stages of the proceedings. At the [post-conviction]
hearing, the petitioner chose not to testify.... There is
some evidence petitioner sought new counsel pretrial ...
but the record reflects that the petitioner abandoned his
motion.... No [other] evidence was presented that the
petitioner's other attorney failed to adequately
communicate with him. The court concludes that the
petitioner has failed to meet his burden of proof
regarding this allegation.

In Baxter v. Rose, our supreme court emphasized the importance of consultation

between the attorney and client. 523 S.W.2d at 934. The purposes are to "elicit

matters of defense" and apprise the accused of "potential strategies and tactical

choices." Id. at 933.

20
 Clearly, DePersio failed to achieve the minimum standards in the area

of client consultation. On the other hand, Attorney Clement, who was appointed

about two months before the trial, did regularly confer with the petitioner on matters

pertinent to his defense. His effort is worthy of mention. The question is whether

the petitioner has shown by a preponderance of the evidence that DePersio's failure

to meaningfully communicate with him from May of 1990 through November of 1990

affected the outcome of the trial.

The short answer is no. There are few indications in the record that

DePersio would have changed the trial strategy had he conferred more regularly

with Brimmer during this period of time. Because the petitioner has failed to

satisfactorily prove how this lack of communication might have affected the results

of the trial, no relief can be granted on this basis. In this regard, the evidence does

not preponderate against the findings of the trial court.

(c)

The petitioner also argues that his attorneys were ineffective for failing

to present psychological testimony at the suppression hearing. He contends that

psychological testimony should have been used to "show that [he] was especially

susceptible due to mental and emotional disorders and may have told the authorities

whatever they wished to hear." He submits that his trial counsel failed to consider

the use of psychological evidence until several months after the suppression hearing

and points out that Dr. Engum had not been asked to render an opinion on the

confession until the trial began.

At trial, defense counsel sought to introduce Dr. Engum's testimony to

show that the petitioner may have given a false confession due to "Prisoner of War

21
Syndrome." The state objected and the trial court conducted an extensive jury out

hearing during which Dr. Engum testified that sensory deprivation occurring in

solitary confinement might result in a false statement by the prisoner in order to

please his captors. Dr. Engum testified that the petitioner was susceptible to giving

a false confession. The trial court excluded the evidence as unreliable but also

observed that this psychological testimony "would have been vitally important for the

record at the time I made my decision [at the suppression hearing]."

In the original appeal, the petitioner argued that the trial judge's ruling

amounted to a violation of his right to present a defense. Brimmer, 876 S.W.2d at

79. Our supreme court, however, ruled that the trial court did not abuse his

discretion by disallowing the testimony. Id. In consequence, that issue may not be

revisited by this court.

At the post-conviction hearing, the trial judge made the following

findings as to this claim:

(A) Failure to adequately investigate all pretrial motions,
including motions for investigative services and motions
relating to the suppression of his confessions while in
custody in Texas. Trial counsel investigated and fully
litigated all Fifth and Sixth Amendment claims relating to
the petitioner's confessions in Texas. The issue was
determined to be without merit in the trial court and on
direct appeal. The petitioner has failed to meet his
burden of proof with respect to any other possible claims
relating to the suppression of his confessions.

In our view, the petitioner has shown no prejudice by the failure to

present psychological evidence at the suppression hearing. Whenever the claim of

ineffective assistance is based on the failure to submit proof, there must be a

showing of what the evidence would have been. State v. Davis, 912 S.W.2d 689,

698 (Tenn. 1995). In the absence of that, there can be no speculation as to what

22
the psychological evidence "would have shown and ... how it would have benefitted"

the petitioner. Id. No such evidence appears in this record.

Moreover, even if the testimony of Dr. Engum had been presented at

the suppression hearing, the confession would not have been excluded. In

Colorado v. Connelly, 479 U.S. 157, 164 (1986), the United States Supreme Court

ruled that "a defendant's mental condition, by itself and apart from its relation to

official coercion" does not render a statement involuntary. Because the rule of

exclusion has been established as a deterrent to police misconduct, coercive activity

on the part of law enforcement is a necessary predicate to finding that a confession

is not voluntary under the Due Process Clause. Id. at 165.

(d)

The petitioner also makes the general claim that his trial counsel failed

to perform an adequate investigation. Assistant District Attorney Jan Hicks filed a

sworn statement that she advised DePersio of her office's open file policy in May of

1990. She stated that DePersio never "avail[ed] himself of this offer." No discovery

was conducted until Clement was appointed co-counsel seven months later.

Clement testified that Ron Johnson, an attorney with the public defender's office,

had conducted some investigation. Also, the trial court appointed an investigator,

Mike Cohan, to assist in the preparation of the defense.

In Baxter v. Rose, 523 S.W.2d at 932, our supreme court set forth the

following standards on investigation:

Counsel must conduct appropriate investigations, both
factual and legal, to determine what matters of defense
can be developed. The Supreme Court has noted that
the adversary system requires that all available defenses
are raised so that the government is put to its proof. This
means that in most cases a defense attorney, or his

23
 agent, should interview not only his own witnesses but
also those that the government intends to call, when they
are accessible. The investigation should always include
efforts to secure information in the possession of the
prosecution and law enforcement authorities. And, of
course, the duty to investigate also requires adequate
legal research.

The preparation of the defense was delayed by the inaction of

DePersio. Professional standards require a more timely effort. Yet there has been

no proof offered as to what more trial counsel would have discovered had he begun

the investigation earlier. Thus, we agree with the assessment of the trial judge that

the petitioner has failed to establish prejudice.

(e)

The petitioner also complains that his trial counsel was ineffective for

failing to object to testimony at trial that he had "killed before." The state argues that

counsel properly wanted to avoid any emphasis on the statement in the presence of

the jury.

Sheriff Jim Hodges, of Refugio County, Texas, testified during direct

examination as to the circumstances surrounding petitioner's written confession:

We talked to him, and he said that he did kill this
Mr. Compton and that the reason -- I had told him that I
felt like he had killed before and that was the reason he
was holding back, because he didn't want to tell about
everything. And so he said, yeah, you're right. I have
killed before, and I did kill Mr. Compton.

The reference does not appear to have been solicited by the state and no objection

was made to this testimony.

On re-direct examination at trial, the following exchange occurred:

Prosecutor: How far did you actually get into the

24
 interview, when you all first set down for the interview,
before he started crying?

Sheriff Hodges: Probably right after he came back with
the jailer and sat down and we started talking to him and
he started answering questions; and the more we got into
it, you know, it was catching up with him and, like I say,
he was just unloading and he had this burden that was
bothering him a lot about this murder and some others.

On re-cross, the following exchange occurred:

DePersio: Now then, from the time that he began to talk
after the jailer brought him back, was Moldenhauer and
Hernandez present?

Sheriff Hodges: Yes, sir.

DePersio: So if he had said, I've killed before, they would
have heard that; is that correct?

Sheriff Hodges: I would think so. I'm not sure.

In the very last paragraph of closing argument at the guilt phase, the

state made the following argument:

There is ... what one would call the Soddi defense,
S-O-D-D-I. Some other dude did it. Who? It's not there.
It's easy though to fantasize. One could fantasize
anything. One could fantasize Martians coming down
and doing it. But that's not what the proof in this case is.
I trust you to use your common sense. ...
Mr. DePersio said something to you and I have
the right to respond, to make a fair response to
something that he said. And what he said to you and I
quote, "Nothing in his background to suggest he is a
killer." Recall what the sheriff said to him when he was
alone with him. He said, son, you've killed before. And
that's truth, members of the jury, not speculation.

(Emphasis added).

At the post-conviction hearing, DePersio testified that he had filed a

motion in limine to limit reference to any prior crimes. He recalled that his usual

practice in this type of situation, where a state witness has not complied with a

25
pretrial order limiting testimony, is to address the matter outside the jury's presence

during a recess. DePersio acknowledged he did not do that in this case. He

testified, however, that he did not make a contemporaneous objection because he

did not want to draw further attention to it. Clement characterized his own failure to

object as unforgivable.

On direct appeal, the petitioner argued that the admission of this

testimony denied him his right to due process. Brimmer, 876 S.W.2d at 80. Our

supreme court ruled as follows:

Our investigation of these complaints indicates
initially that the issue was waived. There was no
contemporaneous objection when any of these allegedly
objectionable remarks were made. Defendant did not
request the Court to instruct the jury to disregard
comments about other killings. ... Moreover, this issue
was not raised on the motion for new trial. Certainly it
would have been better if none of the remarks had been
made .... Under the circumstances and evidence in this
case we do not think these incidents constitute reversible
error.

Id. (emphasis added).

In the order denying post-conviction relief, the trial judge made the

following findings and conclusions:

(I) Failure to enforce pretrial rulings regarding the
admission of evidence that the petitioner had killed
before. This issue has been previously determined on
direct appeal [and it has been determined that the]
petitioner suffered no prejudice from this evidence.
[Counsel was not ineffective in this regard.]

Clearly, the supreme court considered the merits of the petitioner's

claim that the "killed before" reference qualified as error. The ruling was that the

evidence should not have been permitted but was nonetheless not reversible in the

context of the entire trial. While the issue has been raised here in a context of

26
ineffective assistance of counsel, the supreme court held that if there was error by

the failure to exclude the reference, no prejudice resulted. That conclusion by the

supreme court controls. Even if counsel was deficient for having failed to further

object to the reference made by the witness, our supreme court has already

determined that the deficiency had no effect on the results of the trial.

(f)

The petitioner also complains that his attorney was ineffective for

failing to object to the introduction of statements he made while being transported

from Texas to Tennessee. Detective Richard Foschino testified at trial that he and

Captain Bob Higgs of the Anderson County Sheriff's Department returned the

petitioner to this state. Detective Foschino testified that the petitioner discussed the

homicide "freely":

The way the conversation started out about the
homicide itself was, we were talking about--David had
been talking about his past and about how he had been
a victim of abuse when he was a child. He started talking
about victims that Mr. Compton may have had in the
past. And when I started talking to him about that, he
started clarifying it, saying that when he met with Mr.
Compton on the road and they went into the park area,
that Mr. Compton had said something about he could get
some children for David. And David became very upset
with him at the time. And he was referring to sexual
activity with these children. And David talked quite a bit
about that. That brought his recollection to another case
also that involved children.

At that point, defense counsel objected and the following exchange

occurred:

Prosecutor: Let me point out that no suppression motion
had been filed about this.

DePersio: We know that. Nobody's talking about ....

***
DePersio: Well, we object to any conversations

27
 concerning the homicide investigation, that's the subject
matter of this investigation here today.

Court: You have not received statements about that?

Prosecutor: They have received them.

DePersio: I have no idea.

Prosecutor: Because he hasn't looked at the file. Only
Mr. Clement has copied the file, and he had it in
Foschino's blue file that had all the statements ....

(Emphasis added).

The petitioner now argues the admissibility of the statements should

have been litigated pretrial. He points out that DePersio had not reviewed the

statements before the trial began.

It is true that motions to suppress evidence must be heard before trial.

Tenn. R. Crim. P. 12(a)(3). Clearly, defense counsel should have reviewed the

statements before trial. A failure to review the statements pretrial or to file the

motion to suppress pretrial, while qualifying as deficient performance, does not

establish any prejudice. Nothing in this record indicates that the statement would

have been suppressed had a motion been timely filed. This is a prerequisite for the

grant of relief. Because the petitioner has failed to show that a motion to suppress

would have been successful, no prejudice could have resulted from the inaction of

his counsel.

(g)

The petitioner also complains that his trial counsel was deficient for

failing to effectively prepare or present psychological testimony in the sentencing

phase of the trial. He argues that attorney Clement failed to elicit sufficient

testimony from Dr. Engum to support an instruction to the jury on two statutory

28
mitigating circumstances: first, that the defendant suffers from a mental disease

which affected his judgment and, second, that the murder was committed while the

defendant was under the influence of extreme mental or emotional disturbance.

See Tenn. Code Ann. § 39-13-204(j)(2), (8). He further submits that he is entitled to

relief under Goad, 938 S.W.2d at 365, where our supreme court found counsel was

ineffective for failing to present "the available expert mitigating evidence of mental

illness."

During the sentencing phase, the state argued three aggravating

circumstances: that the murder was heinous, atrocious, and cruel; that the murder

was committed to avoid arrest; and that the murder was committed in furtherance of

a robbery. Tenn. Code Ann. § 39-13-204(i)(5), (6), (7). The jury found only one,

that the murder was committed in furtherance of the robbery. Tenn. Code Ann. §

39-13-204(i)(7). The defense theory during the penalty phase of the trial was that

the defendant had been severely abused as a child, had been abandoned

repeatedly by his parents and foster parents, and had suffered a series of personal

rejections, all of which should mitigate against a death sentence.

Dr. Eric Engum testified during the penalty phase that the petitioner

suffered from borderline personality disorder, which is a "long-term personality

disorder dysfunction that manifests itself in impulsive[ness] and unpredictability in

behavior, emotional withdrawal from people ... times of intense anger... [and] a

sense of loss of personal identity." The most important consequence of this

disorder is the "inability to maintain any kind of enduring relationship with other

people."

Dr. Engum explained that several factors contributed to the formation

29
of this disorder. The petitioner's mother was an alcoholic who abandoned him at a

very early age; in consequence, the initial maternal attachment never occurred. It

also developed that the petitioner never had any contact with his father. Dr. Engum

learned from recorded data that the petitioner had been transferred from one foster

home to another. Records indicated that the petitioner was forced to sleep in the

basement of one home while the foster parents focused all of their attention on their

biological children. He was also abused while living in the home. Eventually, the

petitioner was discovered "playing doctor" with one of the foster parents' biological

children and was placed in Devereau Foundation, which is a home for severely

emotionally disturbed children. The petitioner ran away from the Devereau

Foundation several times.

Based upon many of the same circumstances, Dr. Engum testified that

the petitioner also suffered from "Burned" or Abandoned Child Syndrome. Dr.

Engum testified that individuals diagnosed with this syndrome have repeatedly

suffered emotional injuries and eventually withdraw "into [a] shell."

Dr. Engum testified that the petitioner became a drifter and, after being

released from Devereau, never established any lasting relationships, although he

had an "on-again, off-again" relationship with a woman named Mary, who is the

mother of his two children. The petitioner had been institutionalized from time to

time and functioned well in that type of environment. At one point, after his release

from Devereau, the petitioner was institutionalized at West Texas Hospital. The

hospital diagnosed the petitioner as having a factitious disorder, which occurs when

an individual feels so helpless and isolated that he seeks to play the role of patient.

On cross-examination by the state, Dr. Engum conceded that between 500,000 and

two million people suffer from a borderline personality disorder.

30
 At a bench conference during the trial, the trial judge and counsel

discussed which of the statutory mitigating circumstances should be instructed to

the jury. One of the mitigating circumstances discussed was that the "murder was

committed while the defendant was under the influence of extreme mental or

emotional disturbance." Tenn. Code Ann. § 39-13-204(j)(2). The trial judge

suggested that there might be no proof of that circumstance and DePersio, who had

yielded psychological preparations to Attorney Clement, inexplicably agreed, simply

saying that one was "out." Another claimed mitigating circumstance was that the

"capacity of the defendant to appreciate the wrongfulness of [his] conduct or to

conform [his] conduct to the requirements of the law was substantially impaired as a

result of mental disease or defect or intoxication which was insufficient to establish a

defense to the crime but which substantially affected the defendant's judgment."

Tenn. Code Ann. § 39-13-204(j)(8). The trial judge, apparently referring to the

insanity defense as defined in Graham v. State, 547 S.W.2d 531 (Tenn. 1977),

refused to instruct on that mitigating circumstance because "the magical words ...

weren't developed during proof." Defense counsel did lodge an objection to the

refusal to charge Tenn. Code Ann. § 39-13-204(j)(8).

The trial judge provided the following instruction to the jury on

mitigating circumstances:

In arriving at this determination, you are
authorized to weigh and consider any mitigating
circumstances and any of the statutory aggravating
circumstances which may have been raised by the
evidence throughout the entire course of this trial,
including the guilt-finding phase or the sentencing phase
or both.

***

Tennessee Code Annotated 39-2-203(j), provides
that in arriving at the punishment, the jury shall consider
as heretofore indicated any mitigating circumstances
which shall include, but not be limited to, the following:

31
 Number one, the murder was committed under
circumstances which the defendant reasonably believed
to provide a moral justification for his conduct; two, any
aspect of the defendant's character or record, or any
aspect of the circumstances of the offense favorable to
the defendant which is supported by the evidence.

If you unanimously determine that at least one
statutory aggravating circumstance or several statutory
aggravating circumstances have been proved by the
State beyond a reasonable doubt, and said circumstance
or circumstances outweigh any mitigating circumstance
or circumstances, the sentence shall be death. The jury
shall state in writing the statutory aggravating
circumstance or statutory aggravating circumstances so
found, and signify in writing that the statutory aggravating
circumstance or circumstances outweigh the mitigating
circumstance or circumstances so found.

On direct appeal of the conviction and sentence, the defendant argued

that the trial court erred by refusing to instruct Tenn. Code Ann. § 39-13-204(j)(2)

and (8). By a 3-2 vote, our supreme court rejected the claim:

Defendant says he was prejudiced by failure to
instruct mitigating circumstances [Tenn. Code Ann. § 39-
13-204(j)(2) and (8)] raised by the evidence. ... The trial
court declined to instruct the jury on these factors
because he found no evidence in the record that as a
result of mental disease the defendant could not conform
his conduct to the requirements of the law. ... The trial
court was of the opinion that the disorder was prevalent
even among law abiding persons, and in the absence of
specific proof or a statement of causation about the
relationship between the disorder and the offense, the
instruction was not warranted. We do not find anything
in the record to dispute this finding. The issue is without
merit.

Brimmer, 876 S.W.2d at 82-83 (second emphasis added).

The majority of our supreme court decided that the failure of the

defense to prove the connection between the anti-social personalty disorder and the

offense precluded instructions on the statutory mitigating circumstance. Id. (No

mention was made of Dr. Engum's diagnosis of Abandoned Child Syndrome). Two

32
of the five justices dissented from this ruling, concluding that the petitioner had

established that he suffered from a mental disease or diseases which could impair

his ability to appreciate the wrongfulness of his conduct or conform his conduct to

the law. The dissent argued that there should be no requirement to establish any

connections between the disorder or disorders and the criminal acts of the

defendant, suggesting that the majority had confused the concepts of the insanity

defense and mitigating circumstances. One of the dissenters proclaimed that the

use of the "magical words" in this context was absolutely unnecessary. See

Brimmer, 876 S.W.2d at 88 (Reid, Ch. J., and Daughtrey, J., dissenting); Tenn.

Code Ann. § 39-13-204(j)(8). Neither the majority nor the dissenting opinions

commented upon the applicability of Tenn. Code Ann. § 39-13-204(j)(2), that is, that

the murder was committed while the defendant was under the influence of extreme

mental or emotional disturbance. Id. That is understandable; DePersio, of course,

had conceded at trial that this possible mitigating circumstance had no application.

At the post-conviction hearing, Dr. Engum testified that in January of

1991, well before trial, he advised defense counsel that the petitioner was

competent and that an insanity defense could not be supported. At that time, he

also mentioned to defense counsel that he believed there to be mitigating evidence

available to the petitioner. He recalled that the next time he was asked to discuss

his possible testimony was "about an hour or so before the sentencing phase of the

trial began." "After he told them [he] couldn't support the Graham standard, and

found him competent [he] told them that [he] could say something in sentencing,

[but he] didn't hear from them again until the day the trial started." Dr. Engum

asserted that he could have testified that both of the statutory mitigating

circumstances at issue, Tenn. Code Ann. § 39-13-204(i)(2) and (8), were present;

he testified that defense counsel "absolutely" never mentioned either of these

33
mitigating circumstances before or during his testimony.

At the evidentiary hearing on this post-conviction claim, Dr. Engum

uncategorically stated that in his opinion "David Brimmer committed this offense

while under the influence of extreme mental or emotional disturbance." See Tenn.

Code Ann. § 39-13-204(j)(2). He also testified that "David Brimmer's capacity to

appreciate the wrongfulness of his conduct or to conform his conduct to the

requirements of the law, was substantially impaired as a result of mental disease or

defense--insufficient to establish a defense to the crime, but which substantially

affected his judgment." See Tenn. Code Ann. § 39-13-204(j)(8). Other than these

specific references to the enumerated mitigating circumstances, the testimony of Dr.

Engum at trial and on post-conviction was essentially the same.

Attorney Clement testified that he conducted the entire examination of

Dr. Engum at the sentencing hearing. He recalled being generally satisfied with the

content of Dr. Engum's testimony despite the trial court's refusal to give jury

instructions on the two statutory mitigating circumstances in question.

The post-conviction court made the following findings:

(B) Failure to investigate and present evidence of
mitigating factors relating to his background and mental
state at the sentencing. Trial counsel presented expert
testimony at sentencing hearing phase ... relating to
abandoned child syndrome. [A]n investigator testified at
the original trial concerning petitioner's troubled
childhood.... The jury had ample evidence of petitioner's
background and mental history. [W]hile ... some
evidence [was] presented at post-conviction evidentiary
hearing that the expert may not have been prepared until
later stages of [] investigation, [no prejudice has been
shown.]

This finding suggests an "investigator testified concerning petitioner's

34
troubled childhood." The transcript of the sentencing hearing does not support that

conclusion. The reference to an "investigator" may have been inadvertent because

the only witness who testified for the petitioner in the sentencing phase was Dr.

Engum. The finding does not address the more important question of whether the

petitioner was prejudiced by defense counsel's failure to elicit testimony which would

have supported jury instructions on the relevant statutory mitigating circumstances.

Both the petitioner and the state have addressed this issue under

Goad v. State, 938 S.W.2d 363 (Tenn. 1996), a case in which the supreme court set

forth the standards for reviewing claims of ineffective assistance of counsel for

failure to present available mitigating evidence in the sentencing phase of a capital

trial. While acknowledging that defense counsel does have a duty to prepare and

represent the client, our supreme court in Goad held that there is no absolute

requirement that counsel present mitigating evidence at the sentencing hearing.

Goad, 938 S.W.2d at 369, 370. Where mitigating evidence does exist, however, it

should be presented. Id. Our supreme court has emphasized the duty of trial courts

to "preserv[e] a defendant's right to counsel at a capital sentencing hearing." Id.

(internal quotation marks omitted). In Cooper v. State, this court held that "'[i]t is the

duty of the lawyer to conduct a prompt investigation of the circumstances of the

case and to explore all avenues leading to the facts relevant to the merits of the

case and the penalty in the event of conviction.'" 847 S.W.2d 521, 531 (Tenn. Crim.

App. 1992) (quoting A.B.A. Standards for Criminal Justice (2d ed.), The Defense

Function § 4-4.1), aff'd, 849 S.W.2d 744 (Tenn. 1993).

The comments to this section have been quoted with approval by this

court in Adkins v. State, 911 S.W.2d 334, 356 (Tenn. Crim. App. 1994):

The lawyer also has a substantial and important
role to perform in raising mitigating factors both to the

35
 prosecutor initially and to the court at sentencing. This
cannot effectively be done on the basis of broad general
emotional appeals or on the strength of statements made
to the lawyer by the defendant. Information concerning
the defendant's background, education, employment
record, ... relationships, and the like, will be relevant, as
will mitigating circumstances surrounding the commission
of the offense itself. Investigation is essential to
fulfilment of these functions.

The United States Supreme Court has held that mitigating evidence is relevant to

sentencing hearings and should be presented. See generally California v. Brown,

479 U.S. 538 (1987); Mills v. Maryland, 486 U.S. 367 (1988) (a reversal because it

was probable that the jury imposed a death sentence under the impression that the

state statutory scheme prevented jurors from considering any mitigation they did not

find unanimously to exist); Hitchcock v. Dugger, 481 U.S. 393 (1987) (the death

sentence was set aside because the trial court barred evidence of non-statutory

mitigation at the sentencing hearing); Lockett v. Ohio, 438 U.S. 586 (1978) (an Ohio

statute limiting mitigation to three statutory factors was unconstitutional; the jury

must not be precluded from considering any aspect of the defendant's character or

the circumstances of the offense).

This situation, however, is different from that in Goad. Here, defense

counsel did present all of the then available mitigating evidence during the

sentencing phase. The concern is not that defense counsel failed to present the

available mitigating evidence. It is that he presented expert testimony in such a

deficient manner that it justified the trial court's refusal to instruct on the two

available mitigating circumstances. Defense counsel did not establish an adequate

foundation for either mitigating circumstance to be charged to the jury. In the words

of our supreme court on direct appeal, defense counsel failed to elicit a "statement

of causation about the relationship between the disorder [or disorders] and the

offense." Brimmer, 876 S.W.2d at 83. The significant question now is whether the

36
failure to present the testimony in a way which would have warranted an instruction

on the statutory mitigating circumstances affected the reliability of the death

sentence.

As indicated, Dr. Engum testified at the evidentiary hearing on this

post-conviction claim that there was a connection between the petitioner's two

mental disorders and his crimes. This testimony would have been presented in

relation to the statutory mitigators during the sentencing phase of the trial had the

proper questions been presented by defense counsel. Of equal importance is that

each of the two mitigating circumstances prescribed by statute would have been

read to the jury. It is our view that counsel was deficient for failing to offer the

"specific proof or a statement" of the relationship between the petitioner's mental

problems and the offenses committed. Id.

Attorney DePersio, the more experienced of the attorneys assigned to

represent the petitioner, expressed little interest in the penalty phase of the trial. At

least partly due to his general cynicism about psychological testing and perhaps for

other reasons, he left the preparations of the expert witness entirely to his co-

counsel. Attorney Clement, who was involved in his first capital case, worked

diligently during the short period between his appointment and the trial but was

burdened with the responsibility of preparing the testimony of Dr. Engum when he

had never before utilized an expert in a criminal case. Under these circumstances,

his failure to submit the "magical words" sought by the trial judge or otherwise

articulate a legitimate basis for a jury instruction on the statutory mitigating

circumstances at issue is entirely understandable.

This deficiency is of sufficient magnitude, in our view, as to establish

37
the required prejudice component. In Strickland, the United States Supreme Court

held that a "defendant need not show that counsel's deficient conduct more likely

than not altered the outcome in the case." 466 U.S. at 693. Rather, he must show

a "reasonable probability ... [that] the result of the proceeding would have been

different." Id. at 694. "A reasonable probability is a probability sufficient to

undermine confidence in the outcome." Id. at 695. The Supreme Court offered the

following guidance on determining whether prejudice has been established:

In making this determination, a court ... must
consider the totality of the evidence before the judge or
jury. Some of the factual findings will have been
unaffected by the errors, and the factual findings that
were affected will have been affected in different ways.
Some errors will have had a pervasive effect on the
inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an
isolated, trivial effect. Moreover, a verdict or conclusion
only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming
record support.

Id. at 695-96.

The jury was instructed that if the "statutory aggravating

circumstance[s] ... outweigh any mitigating circumstance ..., the sentence shall be

death." The instructions on the possible aggravating circumstances were very

specific and tracked the statute. In contrast, the instruction to the jury on mitigating

circumstances was brief and general. It was almost inevitable that the jury would

conclude that at least one aggravating circumstance was present, i.e., that the

murder was committed in furtherance of a felony. See Tenn. Code Ann. § 39-13-

204(i)(7). Because no specific instructions were given on the statutory mitigating

circumstances and because the instructions contained mandatory language that if

the aggravating circumstances outweigh the mitigating circumstances, the "sentence

shall be death," the errors by the defense made a sentence of death more likely.

38
 This situation is analogous to that in Adkins, 911 S.W.2d at 334. In

Adkins, this court ordered a new sentencing hearing because no mitigating

evidence, even though available, had been presented by defense counsel. The

error was deemed egregious: "[W]hen the state presented proof of two aggravating

circumstances and [defense] counsel ... offered no mitigating evidence, the jury had

little choice but to impose the death sentence." Id. at 356 (emphasis added).

Our supreme court has previously recognized the significant effect of

the failure to provide jury instructions on mitigating circumstances. In State v.

Odom, 928 S.W.2d 18, 32 (Tenn. 1996), our supreme court granted a new

sentencing hearing when the trial judge refused to provide instructions on various

nonstatutory mitigating circumstances. The court determined that when a trial court

refuses to give an instruction on a mitigating circumstance, he "in effect, give[s] it no

weight by excluding such evidence from the jury's consideration." Id. at 31

(emphasis added). The supreme court warned of the importance of this portion of

the charge:

The jury instructions [on mitigating circumstances] are
critical in enabling the jury to make a sentencing
determination that is demonstrably reliable. To ensure
this reliability, the jury must be given specific instructions
on those circumstances offered by the capital defendant
as a justification for a sentence less than death.

928 S.W.2d at 31 (emphasis added).

That rationale applies in this case. It is noteworthy that since the

release of the opinion in Odom, our supreme court has had two additional

opportunities to consider whether error associated with jury instructions on mitigating

evidence required reversal. State v. Hodges, 944 S.W.2d 346, 352 (Tenn.), cert.

denied, 118 S. Ct. 567 (1997); State v. Hall, 958 S.W.2d 679 (Tenn. 1997), cert.

denied, _____S. Ct. _____, 1998 WL 145257 (June 22, 1998). In Hodges, the

39
defendant complained that the trial court erred by denying his requested instructions

on nonstatutory mitigating circumstances. 944 S.W.2d at 351. Instead, the trial

court had instructed the jury on the following nonstatutory mitigating circumstances:

history of childhood; victim of child sex abuse; mental illness or mental or emotional

disturbance; dominance by another person and/or immaturity; drug abuse; and any

other aspect of the defendant's background or character or the circumstances of the

offense, which would reduce the defendant's blameworthiness. Id. at 355.

The supreme court emphasized that a jury instruction on mitigating

circumstances can be found "prejudicially erroneous" only if "it fails to fairly submit

the legal issues or if it misleads the jury as to the applicable law." Hodges, 944

S.W.2d at 352. The court observed that "'[j]urors do not sit in solitary isolation

booths parsing instructions for subtle shades of meaning in the same way that

lawyers might.'" Id. at 352 (quoting Boyde v. California, 494 U.S. 370, 380-81

(1990)).

Our high court explained as follows:

Jurors interpret the instructions in a common sense
manner and in light of the evidence presented at the trial.
The defense assertion ignores the reality that these
jurors had heard specific evidence during the sentencing
hearing about the defendant's childhood, his immaturity,
alleged sexual abuse, drug abuse, mental illness and
emotional disturbance, as well as the dominance by
Trina Brown. By their breadth, the instructions on
nonstatutory mitigating circumstances encompassed all
the evidence presented by the defense at the sentencing
hearing. ... [T]he defendant's claim of error is without
merit.

Hodges, 944 S.W.2d at 356 (citations omitted). While the instructions specifically

requested by the defendant were not given, other instructions, as enumerated

above, were provided to the jury which "encompassed all the evidence" the

defendant presented. Id.

40
 In Hall, the trial court refused to grant seven different requested

instructions on nonstatutory mitigating circumstances which dealt with the

defendant's youth, immaturity, and emotional problems. 958 S.W.2d at 697-98.

Our supreme court found the trial court's refusal to give the requested charge did

not constitute "prejudicial error." Id. at 698. Two factors were critical to the court's

conclusion. First, the rejected instructions on nonstatutory mitigating circumstances

had already been addressed in the instructions provided on statutory mitigating

circumstances. Second, the trial judge did provide an additional instruction on

mitigating evidence:

A mitigating circumstance is any aspect of Leroy Hall,
Jr.'s, character, background history, or physical condition
or the nature and circumstances of the crime which in
fairness or mercy, calls for a sentence less than death. ...
The law does not identify or limit what you can consider
concerning [Hall's] character, background history, any
physical condition or the nature and circumstances of the
crime that are mitigating.

Hall, 958 S.W.2d at 697.

In both Hall and Hodges, the trial judge denied certain of the

defendant's requested instructions; new sentencing hearings were denied by the

supreme court only because other instructions were given which were substantially

the same as those rejected. In each case, the instructions fairly submitted the legal

issues to the jury. The jury was given detailed instructions on the statutory and

nonstatutory mitigating circumstances raised by the evidence.

This case is less like either Hodges or Hall than Odom, wherein our

supreme court ruled that where the appropriate instruction on mitigating evidence is

not provided, that evidence is, for practical purposes, "exclud[ed] ... from the jury's

consideration." 928 S.W.2d at 31. Due to his counsel's errors in this case,

instructions permitting the jury to consider that the defendant suffered from a mental

41
disease or that the murder was committed while the defendant was under extreme

mental disturbance were rejected. See Tenn. Code Ann. § 39-2-204(j)(2), (8). A

brief, general instruction that the jury could consider "any aspect of the defendant's

character or record, or any aspect of the circumstances of the offense favorable to

the defendant" was inadequate because it failed to address the defendant's mental

illness or mental condition at the time of the offense. "To ensure ... reliability, the

jury must be given ... instructions on those circumstances offered by the capital

defendant as a justification for a sentence less than death." Odom, 928 S.W.2d at

31.

Because the jury imposed the sentence of death without being allowed

to consider either of these mitigating circumstances, the death sentence is

unreliable and our confidence in the verdict has been undermined. Strickland, 466

U.S. at 695. The proof by the state was not so overwhelming that the jury would

have inevitably imposed the death sentence. The jury rejected two of the

aggravating circumstances submitted by the state. The single remaining

aggravating circumstance was that the murder was committed in furtherance of a

felony. Thus, the instructions warranted by the evidence might have made a

difference in the sentence imposed by the jury. Under these circumstances, a new

sentencing hearing must be granted.

(h)

The petitioner also argues counsel was ineffective for failing to include

all possible grounds for relief in the motion for new trial. Specifically, the petitioner

complains that the following issues should have been presented: the confusing

nature of the jury instructions on mitigating circumstances, the prejudicial statements

by Sheriff Hodges about the petitioner's having "killed before," the prosecutor's

42
argument about petitioner's having "killed before," and the court's refusal to charge

the requested mitigating circumstances.

The petitioner's complaint about the "confusing nature of the jury

instructions on mitigating circumstances" is unclear. The petitioner has not

indicated why the general instructions provided on possible mitigating circumstances

are unclear. The real problem, as indicated, is trial counsel's failure to prepare and

present the available evidence to substantiate a charge on the possible statutory

mitigating circumstances.

Counsel attempted to raise the issues about the testimony and

argument about the "killed before" issue on direct appeal. The supreme court ruled

as follows:

Our investigation of these complaints indicates
initially the issue was waived. There was no
contemporaneous objection when any of these allegedly
objectionable remarks were made. Defendant did not
request the Court to instruct the jury to disregard
comments about other killings. The record indicates that
Sheriff Hodges was not being responsive to the State's
questions when the reference to prior killings was made.
There is no indication the State intentionally elicited
these remarks. Moreover, this issue was not raised on
the motion for new trial. Certainly it would have been
better if none of the remarks had been made .... Under
the circumstances and evidence in this case we do not
think these incidents constitute reversible error.

Brimmer, 876 S.W.2d at 80. Although counsel may have been deficient in failing to

raise that particular issue in the motion for new trial, we cannot find prejudice

because the supreme court reviewed the substance of the complaint and ruled no

reversible error occurred.

The petitioner also complains that counsel should have included in the

motion for new trial that the court refused to charge the requested mitigating

43
circumstances. On direct appeal, the defendant argued "he was prejudiced by

failure to instruct mitigating circumstances raised by the evidence." Id. at 82. The

supreme court reviewed the issued and found it to be "without merit." Id. at 83.

Because the supreme court reviewed the merits of this issue, the petitioner has

shown no prejudice.

(i)

The petitioner also complains that counsel was ineffective for failing to

present as an issue the twenty-one-day detention of the petitioner prior to his giving

a confession. An unreasonable length of detention without a probable cause

determination violates the Constitution. Gernstein v. Pugh, 420 U.S. 103 (1975). At

the time of petitioner's trial, Tennessee followed the "seventy-two hour rule" which

required a probable cause determination within seventy-two hours. Wynn v. State,

181 S.W.2d 332, 334 (Tenn. 1944); see also State v. Readus, 764 S.W.2d 770

(Tenn. Crim. App. 1988).

Given the facts of the case, we have no hesitation in concluding that

trial counsel should have pursued this as a means of suppressing the confession.

That determination does not end our inquiry, however, as the petitioner must still

show prejudice. As we explain in more detail below, we conclude the petitioner is

entitled to no relief because he has not demonstrated by a preponderance of the

evidence that he did not receive a prompt determination of probable cause. That

determination controls our resolution of this issue. Because we cannot conclude

counsel would have prevailed on the motion to suppress, we cannot find prejudice

as required under Strickland.

44
 II

The petitioner next argues that his confession should be suppressed

because he was held in custody for forty days before a probable cause

determination occurred. See State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996). In

Gerstein v. Pugh, 420 U.S. 103, 114, 125 (1975), the United States Supreme Court

ruled that the "Fourth Amendment requires a judicial determination of probable

cause as a prerequisite to extended restraint of liberty following arrest" and that the

determination "must be made ... either before or promptly after arrest."

In 1991, the Supreme Court defined what is "prompt" under Gerstein.

County of Riverside v. McLaughlin, 500 U.S. 44 (1991). The Court ruled that a

"judicial determination of probable cause within 48 hours of arrest will, as a general

matter, comply with the promptness requirement of Gerstein." Id. at 56. For

hearings occurring before forty-eight hours pass, the arrested individual must "prove

that his or her probable cause determination was delayed unreasonably." Id. The

Court found, however, that where a probable cause determination occurs after forty-

eight hours, the "burden shifts to the government to demonstrate the existence of a

bona fide emergency or other extraordinary circumstance." Id. at 57. The Supreme

Court has held that the rule in McLaughlin, "'is to be applied retroactively to all

cases, state or federal, ... not yet final' when the rule [was] announced." Powell v.

Nevada, 511 U.S. 79, 80 (1994) (quoting Griffith v. Kentucky, 479 U.S. 314, 328

(1987) (omission in original)).

Our supreme court has held that where the rule in McLaughlin is

violated, the exclusionary rule is the appropriate remedy. Huddleston, 924 S.W.2d

at 673. The court ruled that "applying the exclusionary rule to evidence obtained as

a result of the illegal detention will deter further violations." Id. Any confession

45
obtained in violation of McLaughlin must be excluded unless the state can

demonstrate the confession is "sufficiently an act of free will to purge the primary

taint." Id. at 674. Four factors are relevant in reaching this determination:

(1) the presence or absence of Miranda warnings;

(2) the temporal proximity of the arrest and the
confession;

(3) the presence of intervening circumstances; and
finally, of particular significance,

(4) the purpose and flagrancy of the official
misconduct.

Id. at 674-75. The burden of proving the admissibility of the confession rests on the

prosecution. Id.

The petitioner argues that he is entitled to relief under Huddleston,

insisting its rule of exclusion is a new law which should be applied retroactively. In

our view, however, the petitioner has failed to demonstrate by a preponderance of

the evidence that he did not receive a prompt judicial determination of probable

cause.

On February 3, 1990, the petitioner was arrested in Refugio County,

Texas, on charges unrelated to this case. The next day, he appeared before a

Justice of the Peace. Bail was set at $1000. The petitioner was unable to secure a

release. On February 24, 1990, the petitioner signed a written confession. On

March 1, 1990, he was returned to this state to face the first degree murder charge.

A preliminary hearing was held on this charge on March 15, 1990.

On February 4, 1990, a Texas magistrate signed the following

document:

Before me, the undersigned magistrate of the

46
 State of Texas on this day personally appeared [the
defendant] ... and said person was given the following
warning by me:
(1) You are charged with the offense of evading arrest.
An affidavit charging you with this offense ... (has not)
been filed in this Court. [the option on the form stating an
affidavit has been filed was marked through, indicating
an affidavit had not been filed].
(2) You have a right to hire a lawyer and have him
present prior to and during any interview and questioning
by peace officers or attorneys representing the State. ...
(3) You have the right to remain silent.
(4) You are not required to make a statement, and any
statement you make can and may be used against you in
Court.
(5) You have the right to stop any interview or
questioning at any time.
[an option (6) to advise of the right to an examining trial
was marked through, indicating the petitioner was not
advised of the right to an examining trial].

***

Check while reading. [Rights (1) through (5) are checked
off; but right (6) to an examining trial was not checked].
Place of Warning: Refugio Co. Jail

The petitioner argues that two inferences may be drawn from this

document. First, the magistrate could not have made a probable cause

determination at the time the document was completed because an affidavit

charging the offense had not yet been filed. Second, because he was not advised

of his right to an examining trial, he never received one. The petitioner did not offer

testimony on this issue at the evidentiary hearing.

At the conclusion of the hearing, the trial court made the following

findings of fact:

[T]he petitioner claims that he was not properly taken
before a magistrate for a probable cause hearing and
remained in custody illegally for twenty-one days before
confessing to the murder of Rodney Compton. At the
post conviction evidentiary hearing, proof was presented
showing that the petitioner was taken before a magistrate
within twenty-four hours of his arrest in Texas on other

47
 charges. A one thousand dollar bond was granted,
which the petitioner could not make, and the petitioner
confessed to the Tennessee offenses twenty-one days
later while in custody for the Texas offenses. This Court
concludes that the petitioner has failed to carry his
burden of proof with respect to this issue. There has
been insufficient proof presented that the confessions
were taken in violation of the petitioner's Fourth
Amendment rights.

The response of the state completely fails to address the legal issue.

It insists that the issue is moot because the petitioner failed to prove this allegation.

The state argues the petitioner should have presented more proof that he did not

receive a probable cause determination. It insists that the petitioner should have

offered the testimony of the Texas magistrate regarding the admonition of his rights

and should have presented testimony about the standard procedures and forms

employed in Refugio County or the nature of an examining trial in Texas.

In his reply brief, the petitioner submits that Texas law clarifies the

state's concerns. Relevant sections of the Texas Code of Criminal Procedure were

attached to the reply brief as an addendum.

Our rules of evidence provide for mandatory judicial notice of statutory

law in Texas:

Rule 202. Judicial notice of law.--Mandatory Judicial
Notice of Law.--The court shall take judicial notice of (1)
the common law, (2) the constitutions and statutes of the
United States and of every state, territory, and other
jurisdiction of the United States, (3) all rules adopted by
the United States Supreme Court or by the Tennessee
Supreme Court, and (4) any rule or regulation of which a
statute of the United States or Tennessee mandates
judicial notice.

Tenn. R. Evid. 202(a).

48
 In Texas, the statutory law provides for at least two types of pre-trial

hearings: (1) an initial appearance before a magistrate where one is advised of

certain rights, and (2) an examining trial. See Tex. Code Crim. P. Ann. art. 15.17,

16.01. Article 15.17(a) governs the initial appearance and provides in part:

(a) In each case enumerated in this Code, the
person making the arrest shall without unnecessary
delay take the person arrested or have him taken before
some magistrate of the county where the accused was
arrested or, if necessary to provide more expeditiously to
the person arrested the warnings described by this
article, before a magistrate in a county bordering the
county in which the arrest was made. The arrested
person may be taken before the magistrate in person or
the image of the arrested person may be broadcast by
closed circuit television to the magistrate. The
magistrate shall inform in clear language the person
arrested, either in person or by closed circuit television,
of the accusation against him and of any affidavit filed
therewith, of his right to retain counsel, of his right to
remain silent, of his right to have an attorney present
during any interview with peace officers or attorneys
representing the state, of his right to terminate the
interview at any time, of his right to request the
appointment of counsel if he is indigent and cannot
afford counsel, and of his right to have an examining trial.
He shall also inform the person arrested that he is not
required to make a statement and that any statement
made by him may be used against him. The magistrate
shall allow the person arrested reasonable time and
opportunity to consult counsel and shall admit the person
arrested to bail if allowed by law.

Under Texas law, an "examining trial" in felony cases is described in

part as follows:

Article 16.01. Examining trial
When the accused has been brought before a
magistrate for an examining trial that officer shall
proceed to examine into the truth of the accusation
made, allowing the accused, however, sufficient time to
procure counsel. In a proper case, the magistrate may
appoint counsel to represent an accused in such
examining trial only, to be compensated as otherwise
provided in this Code. The accused in any felony case
shall have the right to an examining trial before
indictment in the county having jurisdiction of the offense,
whether he be in custody or on bail, at which time the

49
 magistrate at the hearing shall determine the amount or
sufficiency of bail, if a bailable case.

(Emphasis added). Other sections provide guidance on how the examining trial is

conducted and prescribe the calling and cross-examining of witnesses. Id., art.

16.06, .07. "The same rules of evidence shall apply to and govern a trial before an

examining court that apply to and govern a final trial." Id., art. 16.07. In our view,

the examining trial in Texas is similar to a preliminary hearing in this state. See

Tenn. R. Crim. P. 5(a).

The record suggests that the petitioner did have an initial appearance

as required under Article 15.17. Because the Texas document indicates an affidavit

charging an offense had not been filed with the court, it is not likely that a judicial

determination of probable cause was made at that time.

We also agree it is likely that the petitioner did not have an examining

trial. The offenses with which the petitioner was charged, evading arrest, driving

without a license, and driving without insurance, were all misdemeanors. See Tex.

Penal Code Ann., art. 521.025 (providing that a violation of the law requiring that a

license be carried is a misdemeanor); art. 601.191 (providing that a violation of the

motor vehicle liability insurance requirement is a misdemeanor); and art. 38.04

(providing that evading arrest is a Class B misdemeanor, unless a peace officer

suffers serious bodily injury due to the escape, which is a felony). Under Texas law,

the petitioner would not be entitled to an examining trial for the misdemeanor

offenses. Tex. Code Crim. P. Ann., art. 16.01.

The record leaves open the possibility that the petitioner may not have

received a prompt judicial determination of probable cause. It does not, however,

establish by a preponderance of the evidence that he did not. In Gerstein, the

50
United States Supreme Court provided guidance on what type of procedure would

satisfy the requirement of a prompt judicial determination of probable cause. The

Court observed the safeguards built into a preliminary hearing, such as the calling

and cross-examination of witnesses and the appointment of counsel, are not

constitutionally required for a probable cause determination. 420 U.S. at 119-20.

The hearing does not have to be adversarial. Id. at 120. The Court ruled that

hearsay and written testimony may be adequate for the judicial determination of

whether there is probable cause. Id. The Court explained that the use of an

"informal procedure is justified not only by the lesser consequences of a probable

cause determination but also by the nature of the determination itself." Id. at 122.

That there was not an examining trial in Texas and that the magistrate

did not determine probable cause at the initial appearance does not make it more

likely than not that an informal procedure was not used at another constitutionally

permissible time. The record does not include papers filed in court in Refugio

County. The proof in the record is inadequate for any determination that a

constitutional violation occurred.

In Green v. State, 872 S.W.2d 717, 718 (Tex. Crim. App. 1994), the

court observed that the probable cause determination was noted on the "docket

sheet." The court presumed this probable cause determination was made to satisfy

the rule in Gerstein. Id. at 721. Such an informal procedure in this case would have

satisfied constitutional guidelines. The burden in a post-conviction case is on the

petitioner to demonstrate his claim by a preponderance of the evidence. He has not

done so on this issue.

51
 III

The petitioner complains that prosecutorial misconduct occurring

during the course of the trial requires reversal. Specifically, he complains that the

prosecutor's arguments repeating and emphasizing Sheriff Hodges' testimony that

the petitioner had "killed before" were highly prejudicial and improper.

Initially, we note this claim has been waived. The post-conviction

statute in effect when the petition was filed defines waiver:

(b)(1) A ground for relief is waived if the petitioner
knowingly and understandingly failed to present it for
determination in any proceeding before a court of
competent jurisdiction in which the ground could have
been presented.

(2) There is a rebuttable presumption that a ground for
relief not raised in any such proceeding which was held
was waived.

Tenn. Code Ann. § 40-30-112(b) (repealed 1995). Our supreme court has held that

"the rebuttable presumption of waiver is not overcome by an allegation that the

petitioner did not personally, knowingly, and understandingly fail to raise a ground

for relief." House v. State, 911 S.W.2d 705, 714 (Tenn. 1996). The court

continued, "[w]aiver in the post-conviction context is to be determined by an

objective standard under which a petitioner is bound by the action or inaction of his

attorney." Id. Clearly, this claim of prosecutorial misconduct was available on direct

appeal. We will nonetheless briefly address the merits.

As stated previously, Sheriff Hodges testified that the petitioner

acknowledged to him that he had "killed before." The last statements made during

closing argument by the state were as follows: "Recall what the Sheriff said to him

when he was alone with him. He said, 'Son, you've killed before.' [A]nd that's true,

members of the jury, not speculation."

52
 Our supreme court recently reaffirmed several well-established

guidelines which control closing argument:

We have recognized that closing argument is a
valuable privilege for both the State and the defense and
have allowed wide latitude to counsel in arguing their
cases to the jury. Nonetheless, closing argument is
subject to the discretion of the trial judge, and must be
temperate, predicated on evidence introduced during the
trial, and relevant to the issues being tried.

State v. Ronnie Michael Cauthern, ____ S.W.2d ____, No. 02C01-9612-CC-00108,

slip op. at 18 (Tenn., at Jackson, Mar. 23, 1998) (citations omitted).

In our assessment, however, any misconduct on the state's part did

not affect the jury's verdict in this case. The test to be applied in reviewing a claim

of prosecutorial misconduct is "whether the improper conduct could have affected

the verdict to the prejudice of the defendant." Harrington v. State, 385 S.W.2d 758,

759 (Tenn. 1965). The factors, set out in Judge v. State, 539 S.W.2d 340, 344

(Tenn. Crim. App. 1976), and adopted by the Tennessee Supreme Court in State v.

Buck, 670 S.W.2d 600, 609 (Tenn. 1984), are as follows:

(1) the conduct complained of, viewed in light
of the facts and circumstances of the case;

(2) the curative measures undertaken by the
court and the prosecution;

(3) the intent of the prosecutor in making the
improper statement;

(4) the cumulative effect of the improper
conduct and any other errors in the record;
and

(5) the relative strength or weakness of the
case.

The first factor, the conduct complained of, weighs for the petitioner. The argument

was patently improper. See Tenn. R. Evid. 404(b). The second factor, the curative

measures undertaken by the court and the prosecution, also weighs for the

53
petitioner. Neither the state nor the court made any attempt to cure this error. The

third factor, the intent of the prosecutor, also weighs for the petitioner as there is no

legitimate reason for the conduct. The fourth factor weighs for the state, as there

were no other instances of misconduct. The final factor, which we find controlling, is

the strength of the case. Given the confession, the strength of the case was

overwhelming. In our view, the improper conduct did not contribute to the guilty

verdict. Thus, the issue is without merit.

IV

Counsel for the petitioner has raised a myriad of issues in an attempt

to preserve the issues for future litigation.6 Specifically, he raises the following

issues:

(1) whether the trial court erred by limiting the
questioning of prospective jurors about their
attitudes about the death penalty;

(2) whether the trial court erred by refusing to
allow certain jurors to be challenged for
cause and excluding other jurors;

(3) whether the trial court gave erroneous
definitions of "reasonable doubt" during voir
dire and in the guilt and penalty phases;

(4) whether the trial court erred by allowing the
introduction of irrelevant and prejudicial
evidence;

(5) whether the trial court erred by giving
instructions that relieved the prosecution of
the burden of proving all elements of the
offense;

(6) whether the trial court erred by excluding
the petitioner's mental health records during
the guilt phase;

(7) whether the trial court erred by refusing to
allow the jury to review the petitioner's

6
Thes e issues are listed in an adden dum to the brief.

54
 written statement during jury deliberation;

(8) whether the prosecutor failed to disclose
evidence;

(9) whether the prosecution failed to perform
adequate testing or concealed test results
obtained from the crime scene;

(10) whether prosecutorial misconduct requires
reversal;

(11) whether the district attorney for Anderson
County abused his discretion by seeking
the death penalty in this case;

(12) whether the Tennessee Supreme Court's
proportionality review violates due process
in that the court has failed to promulgate
the standards by which it conducts its
review;

(13) whether the absence of an instruction
allowing the jury to impose a life sentence
based on mercy is unconstitutional;

(14) whether the mandatory imposition of the
death penalty upon a finding that
aggravating circumstances outweigh the
mitigating circumstances is
unconstitutional;

(15) whether Tenn. Code Ann. § [39-13-
204(i)(7)] fails to narrow the class of
persons eligible for the death penalty;

(16) whether the death penalty unlawfully
infringes upon the petitioner's right to life;

(17) whether the death penalty is per se cruel
and unusual punishment;

(18) whether the trial court's exclusion of Dr.
Engum's testimony during the guilt phase
violated constitutional rights; and

(19) whether the cumulative effect of all these
errors violates petitioner's constitutional
rights.

We must conclude that none of these issues present a basis for relief.

55
First, all of the issues are waived under Rule 10, Tenn. Ct. Crim. App., which

provides that "[i]ssues which are not supported by argument, citation to authorities,

or appropriate references to the record will be treated as waived in this court."

Several of the issues have been waived under the post-conviction statute because

they were available at trial but not pursued at that time. See Tenn. Code Ann. § 40-

35-112(B) (repealed 1995). Others are waived for failure to present any proof at the

post-conviction hearing to support the claim. Finally, other issues have previously

been decided against the petitioner. We will briefly discuss each issue.

The post-conviction statute in effect when the petition was filed defines

waiver:

(b)(1) A ground for relief is waived if the petitioner
knowingly and understandingly failed to present it for
determination in any proceeding before a court of
competent jurisdiction in which the ground could have
been presented.

(2) There is a rebuttable presumption that a
ground for relief not raised in any such proceeding which
was held was waived.

Tenn. Code Ann. § 40-30-112(b) (repealed 1995). Our supreme court has held that

"the rebuttable presumption of waiver is not overcome by an allegation that the

petitioner did not personally, knowingly, and understandingly fail to raise a ground

for relief." House, 911 S.W.2d at 714. The court continued, "[w]aiver in the post-

conviction context is to be determined by an objective standard under which a

petitioner is bound by the action or inaction of his attorney." Id.

Issues (1) and (2) concerning the jury selection process have been

waived because they were available at trial and on direct appeal but not pursued.

See House 911 S.W.2d at 714; Tenn. Code Ann. § 40-30-112(b) (repealed 1995).

56
 The third issue concerns jury instructions on reasonable doubt. This

issue is without merit. At the guilt phase, the jury was instructed as follows:

Reasonable doubt is not a mere possible doubt
because everything relating to human affairs is open to
some possible or imaginary doubt. It is an honest doubt
engendered after an investigation of all of the evidence
and an inability after such investigation to let the mind
rest easily as to the moral certainty of guilt. And this
certainty is required as to every essential element of the
crime charged or included in this indictment.

A similar instruction was given at the penalty phase.

Several cases discuss challenges to this type of instruction. See State

v. Bush, 942 S.W.2d 489, 52 (Tenn.), cert. denied, 118 S. Ct. 376 (1997). These

challenges are based on the United States Supreme Court case, Victor v. Nebraska,

511 U.S. 1 (1994). In Victor, the United States Supreme Court ruled that a jury

might "understand [the instruction containing the phrase 'moral certainty'] to allow

conviction on proof that does not meet the beyond a reasonable doubt standard."

511 U.S. at 13. The Court ruled, however, that a reasonable doubt instruction that

contained the phrase "moral certainty" might nonetheless comport with constitutional

guidelines if used in conjunction with other phrases that lend content to the phrase.

Id. at 15.

In State v. Nichols, 877 S.W.2d 722, 734-35 (Tenn. 1994), our

supreme court considered a challenge to a jury instruction which included the term

"moral certainty" used in conjunction with a charge that "[r]easonable doubt is that

doubt engendered by an investigation of all the proof in the case and an inability,

after such investigation, to let the mind rest easily upon the certainty of your verdict."

Id. The court concluded that the instruction properly reflected "the evidentiary

certainty required by the 'due process' clause of the federal constitution and the 'law

of the land' provision in our state constitution." Id. In our view, Nichols controls in

57
this instance.

The fourth issue is that the trial court erred by allowing the introduction

of irrelevant and prejudicial evidence. In our view, this issue is waived because it

was available at trial and on direct appeal but not pursued. See House, 911 S.W.2d

at 714; Tenn. Code Ann. § 40-30-112(b) (repealed 1995).

The fifth issue is whether the trial court erred by giving instructions that

relieved the prosecution of the burden of proving all elements of the offense. This

issue is waived because it was available at trial. In Sandstrom v. Montana, 442 U.S.

510 (1979), the United State Supreme Court ruled that jury instructions that relieve

the prosecution of the burden of proving an essential element of the offense are

unconstitutional. At the time of petitioner's trial, the prohibition against burden-

shifting jury instructions was well-established; any complaint based on burden-

shifting instructions should have been pursued at trial. See House, 911 S.W.2d at

714; Tenn. Code Ann. § 40-30-112(b) (repealed).

The sixth and seventh issues, concerning the admission of mental

health records at trial and the trial court's refusal to allow the jury to review the

petitioner's statement during deliberation, are waived for failure to pursue the issues

at trial or on appeal. See id.

The eighth and ninth issues, concerning possible Brady violations and

the state's failure to perform adequate testing on crime scene evidence, are waived

because of a failure to present proof. There is no evidence at the post-conviction

hearing concerning these allegations and we cannot speculate as to the substance

of the claims. "We [must] decide cases ... on the basis of the record as presented

58
to us for our consideration." Dearborne v. State, 575 S.W.2d 259, 264 (Tenn.

1978). The burden is always upon the appealing party to develop a record which

conveys a fair, accurate, and complete account of those proceedings which form the

basis of the appeal. Id.

The tenth and eleventh issues concerning prosecutorial misconduct

and abuse of discretion for seeking the death penalty are waived for failure to

present them on direct appeal. House, 911 S.W.2d at 714.

The twelfth issue concerns a challenge to the way our supreme court

conducts proportionality review. See State v. Bland, 958 S.W.2d 651 (Tenn. 1997),

cert. denied, 118 S. Ct. 1536 (1998). This issue is waived for failure to cite any

authority as well as failure to provide evidence. There is no proof in this record that

the supreme court conducted an inadequate proportionality review in this case.

The thirteenth issue is whether the denial of a jury instruction allowing

the jury to consider mercy is unconstitutional. First, this issue is waived for failure to

cite any authority. Tenn. Ct. Crim. App. R. 10(b). Even if we were to review the

merits of the issue, however, we would find for the state. The supreme court has

consistently held no error occurs when a trial court refuses to give a mercy

instruction. See State v. Bigbee, 885 S.W.2d 797, 813-14 (Tenn. 1994); State v.

Melson, 638 S.W.2d 342, 366 (Tenn. 1982).

The petitioner next complains that the mandatory imposition of the

death penalty upon a finding that the aggravating circumstances outweigh the

mitigating circumstances is unconstitutional. This issue is also waived for failure to

cite any authority. Tenn. Ct. Crim. App. R. 10(b). Nevertheless, our supreme court

59
has rejected this argument. See State v. Smith, 868 S.W.2d 561, 582 (Tenn. 1994).

The petitioner also contends Tenn. Code Ann. § 39-13-204(i)(7), the

felony murder aggravating circumstance, fails to narrow the class of persons eligible

for the death penalty. In State v. Middlebrooks, 840 S.W.2d 317, 346 (Tenn. 1992),

a majority of our supreme court concluded that when a defendant is "convicted of

first-degree murder solely on the basis of felony murder, the aggravating

circumstance set out in Tenn. Code Ann. §§ 39-2-203(i)(7) (1982) and

39-13-204(i)(7) (1991), does not narrow the class of death-eligible murderers

sufficiently under the Eighth Amendment to the U. S. Constitution, and Article I, § 16

of the Tennessee Constitution because it duplicates the elements of the offense."

Courts have been reluctant to extend the holding in Middlebrooks and continue to

uphold the constitutionality of the felony murder aggravating circumstance when

used in conjunction with the jury's finding of a premeditated murder. In Hall, our

supreme court emphasized that "[i]mplicit in [the Middlebrooks holding] is the

recognition that the circumstance properly may be applied if a defendant is

convicted of premeditated first degree murder." Hall, 958 S.W.2d at 692. This issue

is without merit.

The petitioner next complains that the death penalty unlawfully

infringes on his right to life. In State v. Bush, 942 S.W.2d 489, 507 (Tenn.), cert.

denied, 118 S. Ct. 376 (1997), the supreme court affirmed our court's determination

that the death penalty does not unlawfully infringe upon one's right to life. (Court of

Criminal Appeals' opinion affirmed and appendixed to the supreme court's opinion).

The court quoted from Gregg v. Georgia, 428 U.S. 153, 183 (1976):

[C]apital punishment is an expression of society's moral
outrage at particularly offensive conduct. This function
may be unappealing to many, but it is essential in an
ordered society that asks its citizens to rely on legal

60
 processes rather than self-help to vindicate their wrongs.

Bush, 942 SW.2d at 523 (alteration in original). This issue is therefore without merit.

The petitioner also argues the death penalty is per se cruel and

unusual punishment. Our supreme court has routinely rejected the argument that

the death penalty in and of itself is cruel and unusual punishment. See generally,

State v. Dicks, 615 S.W.2d 126 (Tenn. 1981); see also State v. Cauthern, 778

S.W.2d 39, 47 (Tenn. 1989). This complaint is without merit.

The petitioner's next complaint is that the trial court's exclusion of Dr.

Engum's testimony during the guilty phase violated his constitutional rights. This

issue was previously determined on direct appeal. "A ground for relief is 'previously

determined' if a court of competent jurisdiction has ruled on the merits after a full

and fir hearing." Tenn. Code Ann. § 40-30-112(a) (repealed 1995). A "full and fair

hearing" occurs if the "petitioner is given the opportunity to present proof and

argument on the petition for post-conviction relief." House, 911 S.W.2d at 714

(footnote omitted).

This exact issue was raised on direct appeal and the supreme court

ruled as follows:

It is well within the authority of States to exclude
evidence through the application of evidentiary rules that
themselves serve the interest of fairness and reliability--
even if the defendant would prefer to see that evidence
admitted. A trial court's decision to admit or exclude
expert testimony cannot be disturbed on appeal unless
there is a clear showing that the trial court has abused its
discretion. We find no such abuse in this case.

Brimmer, 876 S.W.2d at 79 (citations omitted). Accordingly, this issue is without

merit.

61
 The petitioner's final complaint is that the cumulative effect of all of

these errors requires reversal. Because we have found no merit to any of these

general challenges, we need not address this issue.

The judgment of the trial court denying post-conviction relief for the

offense of first degree murder is affirmed. A new sentencing hearing is granted due

to the ineffective assistance of counsel in that phase of the trial.

______________________________________
Gary R. Wade, Judge

CONCUR:

_____________________________
Paul G. Summers, Judge

_____________________________
William M. Barker, Special Judge

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