Corinio Pruitt v. State of Tennessee

05/06/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
May 4, 2021 Session

CORINIO PRUITT v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County
No. 06-00460 Chris Craft, Judge
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No. W2019-00973-CCA-R3-PD
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Petitioner, Corinio Pruitt, was convicted in 2008 of first degree felony murder and was
sentenced to death. After Petitioner’s conviction and sentence were affirmed by the
Tennessee Supreme Court on direct appeal, Petitioner filed a post-conviction petition.
After an extensive evidentiary hearing, the post-conviction court denied relief. In this
appeal, Petitioner raises the following claims for relief: 1) the post-conviction judge erred
by failing to recuse himself; 2) Petitioner is ineligible for the death penalty due to his
intellectual disability, and trial counsel were ineffective in their handling of Petitioner’s
intellectual disability claim at trial1; 3) trial counsel were ineffective for failing to
investigate and present additional mitigating evidence regarding Petitioner’s traumatic
social history, mental health, and cognitive impairments; 4) the prosecutors abused their
discretion by seeking the death penalty in this case, operated under a conflict of interest,
and committed misconduct by exercising peremptory strikes against African-American
jurors and making inappropriate statements and arguments, and trial counsel were
ineffective for failing to raise appropriate objections to these issues; 5) trial counsel
rendered ineffective assistance during the course of voir dire, trial, closing argument, and
jury instructions during the guilt phase; 6) the death penalty is unconstitutional and is a
disproportionate sentence in this case; and 7) the cumulative effect of these errors rendered
Petitioner’s trial fundamentally unfair. After a thorough examination of the briefs of the
parties and amici curiae, the records of the post-conviction hearing and direct appeal, and
the applicable law, this court affirms the judgment of the post-conviction court.

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

1
Petitioner’s trial predated the 2010 amendment of Tennessee Code Annotated section 39-13-203,
which replaced the term “mental retardation” with “intellectual disability.” This opinion will use the term
“mental retardation” only when referring to the testimony of witnesses or pieces of evidence that used that
term. No disrespect is intended thereby.
JILL BARTEE AYERS, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and D. KELLY THOMAS, JR., J., joined.

Kelly A. Gleason (on appeal and at hearing); Lucie T. Butner (on appeal); and Jonathan
King and Barbara Sidelnik (at hearing), Assistant Post-Conviction Defenders, Nashville,
Tennessee, for the appellant, Corinio Pruitt.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor
General; Benjamin A. Ball, Assistant Attorney General; Amy P. Weirich, District Attorney
General; and Steve Jones, Assistant District Attorney General, for the appellee, State of
Tennessee.

J. David Wicker and Elizabeth Bowden, Nashville, Tennessee; Collin P. Wedel and
Andrew B. Talai, Los Angeles, California; and Alex E. Sirio, Washington, D.C., for the
amicus curiae, the Tennessee Conference of the NAACP.

David R. Esquivel, Sarah B. Miller, and Elizabeth Harwood, Nashville, Tennessee, for the
amicus curiae, Just City.

Ross M. Johnson and Zachary Lawson, Nashville, Tennessee, for the amicus curiae,
Tennessee Conservatives Concerned About the Death Penalty.

John S. Hicks, Nashville, Tennessee, for the amici curiae, the Arc of Tennessee, Professor
Daniel Kiel, and Professor Steven J. Mulroy.

OPINION

Factual and Procedural Background

I. Trial and Direct Appeal

Petitioner, Corinio Pruitt, was indicted for first degree felony murder and first
degree premeditated murder for the death of the victim, Lawrence Guidroz. Both at trial
and on direct appeal, Petitioner was represented by attorneys from the Shelby County
Public Defender’s Office. After a six-day trial in 2008, the jury found Petitioner guilty of
felony murder and the lesser-included offense of second-degree murder, which was merged
into his conviction for felony murder. The jury then imposed the death penalty after
determining that the following aggravating factors outweighed any mitigating
circumstances beyond a reasonable doubt: (1) Petitioner was previously convicted of one
or more felonies, other than the present charge, whose statutory elements involve the use
of violence to the person; (2) the murder was knowingly committed, solicited, directed, or
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aided by Petitioner, while Petitioner had a substantial role in committing, or attempting to
commit, or was fleeing after having a substantial role in committing or attempting to
commit a robbery; and (3) the victim was 70 years of age or older at the time of the murder.
See T.C.A. § 39-13-204(i)(2), (7), (14). Petitioner’s conviction and sentence were affirmed
on direct appeal by both this court and the Tennessee Supreme Court, with two Justices
dissenting as to the proportionality of the death penalty. See State v. Pruitt, 415 S.W.3d
180 (Tenn. 2013), cert. denied sub nom Pruitt v. Tennessee, 134 S. Ct. 2874 (2014).

The Tennessee Supreme Court summarized the facts presented in the trial court as
follows:

A. Evidence at Guilt Phase

On the morning of August 2, 2005, Courtney Johnson encountered
[Petitioner] by chance as he walked to the Apple Market on Winchester Road
in Memphis, Tennessee. [Petitioner] talked about stealing a car and asked Mr.
Johnson if he would get in the car with him if [Petitioner] took one. Although
Mr. Johnson told [Petitioner] “no,” he remained with [Petitioner] outside the
market and spoke to people who came to the market, including [Petitioner]’s
cousin, Michael Rockett. Later, Mr. Johnson’s friend, “Sed,” came to the
market. [Petitioner] remained outside the market as Mr. Johnson and Sed
walked to the Family Dollar store at the other end of the shopping center. Mr.
Johnson testified that he went with Sed to the Family Dollar store because he
did not want to be involved in whatever [Petitioner] was going to do.

Taka Pruitt[, who is unrelated to Petitioner,] arrived at the Apple Market
with her neighbor. They parked directly outside the front door of the market.
Ms. Pruitt stayed in the car while her neighbor went inside. As she waited in
the car, she observed a “younger gentleman,” later identified as [Petitioner],
standing to the left of the door. Ms. Pruitt recognized him as someone who
lived in her apartment complex. After five or six minutes, Ms. Pruitt saw an
older man walk out of the market with groceries in his arms and walk to his
car. As he reached the driver’s side door, [Petitioner] ran up behind the older
man and pushed him into the car. Although she could not see clearly into the
car, it appeared to Ms. Pruitt that the two men were “tussling.” She saw
[Petitioner] on top of the older man, and she could see the older man’s feet
dangling out of the car. After about fifteen seconds, she saw [Petitioner] throw
the older man to the ground, slam the car door, and drive away. When Ms.
Pruitt checked on the victim, he was shaking and having trouble breathing and
he was bleeding from his nose and both ears.

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 Ms. Pruitt ran inside the market, told employees that someone had just
been carjacked, and asked them to call 911. She then ran back to the victim
and called 911 on her cell phone. Ms. Pruitt went to the police station after the
carjacking. She identified [Petitioner] from a photo lineup as the person who
beat the victim and took the victim’s car. At trial, Ms. Pruitt was shown a still
photo created from the market’s security camera video. She circled an image
of [Petitioner], identifying him as the younger man she saw push the victim
into his car. Ms. Pruitt also confirmed that [Petitioner] was alone when he
attacked the victim.

Courtney Johnson testified that he saw the victim arrive at the Apple
Market in a brown Chevrolet and walk into the market just before he and Sed
went to the Family Dollar store. Mr. Johnson said that the victim appeared to
be fine when he went into the Apple Market. Mr. Johnson and Sed were in the
Family Dollar store for “three to four minutes.” When they walked back in the
direction of the Apple Market, Mr. Johnson saw “an old man laying down with
blood coming out of his head, and his car was gone.” [Petitioner] was also
gone. Mr. Johnson said he ran inside the market and asked someone to call
911. He left the scene before the police arrived because he did not want to be
involved and did not want to “snitch” on [Petitioner].

Memphis Police Officer Charmell Smith was the first officer on the
scene and arrived before emergency medical personnel. She found the victim
lying on his back on the ground and bleeding from his ears and mouth. She
testified that the victim was “semi-conscious” and that she helped load the
victim into an ambulance when it arrived. Based on her prior medical training
as a certified nursing assistant, she opined that the bleeding from the ears
indicated some kind of head trauma.

Thomas J. Leech III identified the victim, Mr. Lawrence Guidroz, from
a still photo created from the Apple Market’s security camera video. Mr.
Leech testified that he had known Mr. Guidroz for more than twenty-five years
and that he was very close to Mr. Guidroz. Mr. Leech went to the hospital to
see Mr. Guidroz when he heard that Mr. Guidroz had been attacked. Mr. Leech
remained in Mr. Guidroz’s hospital room throughout the night. At no point
was Mr. Guidroz able to communicate with Mr. Leech. Mr. Guidroz died the
next day. Mr. Leech testified that Mr. Guidroz was seventy-nine years old at
the time of his death. Mr. Guidroz was buried in Louisiana after a service in
Memphis. Mr. Leech identified photographs of Mr. Guidroz’s car, bearing the
license plate number CUX 845.

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 Following the carjacking, Memphis Police began looking for the
victim’s car. Officer Jonas Holguin found the car parked at the Somerset
Apartments near Tullahoma and Winchester and was instructed to watch it
from a distance. At trial, Officer Holguin was shown the photograph of Mr.
Guidroz’s car, which had been identified by Mr. Leech, and confirmed that the
license plate was the same as the car he was instructed to watch. At some
point, the car was moved from the apartment complex without the knowledge
of the police, and the police began to search the area in an attempt to locate the
car. The car was later observed pulling into a residence at 3180 Beauchamp,
and a team of police officers converged on that location.

The driver of the car, who was wearing a red shirt, went inside the
house. The police made the decision to apprehend the driver. Mr. Johnson
came out of the house and the police took him into custody. According to
Sergeant Robin Hulley, Mr. Johnson yelled, “the guy you want is in the back
yard.” Officers went to the back yard and saw a man wearing a red shirt jump
over a fence and run. Although dogs were called in to track the man, police
had no success in finding him.

Mr. Johnson testified that after the incident at the Apple Market, he did
not see [Petitioner] again until three days later, when [Petitioner] telephoned
and asked to come to Mr. Johnson’s house to take some liquor from Mr.
Johnson’s grandmother’s bar. Because he knew [Petitioner] had stolen the
victim’s car, Mr. Johnson told [Petitioner] not to come to his house.

Nevertheless, [Petitioner] drove to Mr. Johnson’s house and parked the
car in the garage. Shortly thereafter, three to four unmarked police cars arrived
on the scene. Mr. Johnson knew that the police were there for [Petitioner].
Although Mr. Johnson was not aware that Mr. Guidroz had died, [Petitioner]
informed Mr. Johnson that he had “body-slammed” the victim before taking
his car. At trial, Mr. Johnson identified a photograph of himself with
[Petitioner] at the Apple Market on the day of the carjacking and identified the
victim’s car as the one [Petitioner] parked in his garage. Mr. Johnson was
never charged in the case.

The car was taken to the crime scene investigation office, where Officer
Francis Donald Carpenter processed the car for fingerprints. Officer Carpenter
testified that he found several latent prints on the car. Two prints were lifted
from the outside windshield on the front passenger side. Officer Nathan
Gathright, a latent fingerprint examiner for the Memphis Police Department,
testified that these prints belonged to Mbenda McCracken. A print found on
the left rear fender outside the car belonged to Kendricks Scott. Another print
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found on the right rear fender above the wheel belonged to [Petitioner]. Both
Mr. McCracken and Mr. Scott testified at trial.

Mr. McCracken identified [Petitioner] in the courtroom. In August
2005, Mr. McCracken had known [Petitioner] for approximately eight months.
Mr. McCracken identified a photo of the victim’s car and stated that he saw
[Petitioner] driving the car in August 2005. When Mr. McCracken asked
[Petitioner] where the car came from, [Petitioner] told him it was his
girlfriend’s car. Mr. McCracken got into the car and went with [Petitioner] to
buy beer and marijuana. [Petitioner], Mr. McCracken, and a friend named
“Fred” drove around in the car for three to four hours and got high. Mr.
McCracken later saw on the news that the car [Petitioner] was driving had been
taken in a carjacking. Mr. McCracken denied any involvement in the
carjacking.

Before Mr. McCracken testified, he and [Petitioner] were accidentally
placed in the same holding cell for about forty-five minutes. Mr. McCracken
was in custody on an aggravated burglary charge unrelated to the present case.
Mr. McCracken testified that while he and [Petitioner] were in the holding cell,
[Petitioner] told Mr. McCracken that there were two persons involved in the
carjacking and that the other person had not been charged. [Petitioner] said
that he and the other person were trying to get into the victim’s car. When the
victim approached the car, they jumped on him. [Petitioner] told Mr.
McCracken that he grabbed the victim and threw him down. [Petitioner] tried
to persuade Mr. McCracken to testify that he did not know [Petitioner] and that
another man came into the neighborhood to attempt to sell Mr. McCracken
parts from the car.

Kendricks Scott, whose fingerprints were found on the left rear fender,
testified that he saw [Petitioner] driving the victim’s car in August 2005.
[Petitioner] offered Mr. Scott a ride to work and told Mr. Scott that it was “his
auntie’s car.” Mr. Scott opened the rear door of the car and briefly sat in the
back seat with the door open, but did not ride in the car. Another person, whom
Mr. Scott did not know, was in the car at the time. The following day, when
the police came looking for [Petitioner] at the house next door to Mr. Scott’s
residence, Mr. Scott learned that the car had been taken in a carjacking. Mr.
Scott did not volunteer any information to the police at that time.

Alma Rockett is [Petitioner]’s aunt. [Petitioner] was living with Ms.
Rockett in the Somerset Apartments in August 2005. On August 2, 2005, Ms.
Rockett recognized [Petitioner] in video footage shown on a television news
broadcast. She also recognized another man in the video who previously had
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been in her home with [Petitioner]. At trial, she was shown still photographs
from the Apple Market security video. Ms. Rockett identified [Petitioner] as
the man wearing the dark-colored shirt, a larger man as her son, Michael, and
a smaller man as the man who previously came home with [Petitioner]. She
also identified Michael’s car in the photograph with the three men. After
seeing the video footage on the news, Ms. Rockett and her son went downtown
“to straighten it out, to let them know that [Michael] was not involved.” After
that night, [Petitioner] never came back to her house. When [Petitioner] later
called Ms. Rockett, she told him to turn himself in to police.

[Petitioner] testified in his own defense. He acknowledged his prior
convictions for aggravated burglary, robbery, criminal attempt to commit
robbery, and theft over $500. He stated that on the morning of August 2, 2005,
he left for work around 6:00 a.m. When he arrived at work, however, he
discovered he had left his identification badge at home. Although he called
his aunt to confirm the badge was there, he never went home to get it. Instead,
[Petitioner] went to Courtney Johnson’s house and arrived between 8:00 and
8:30 a.m.

[Petitioner] stated that he and Mr. Johnson talked for awhile and went
to the Apple Market for the express purpose of stealing a car. While they were
standing by the drink machine attempting to decide which car to steal,
[Petitioner]’s cousin, Michael, arrived and went into the market. When
Michael came out of the market, Michael, Mr. Johnson, and [Petitioner]
walked to the Family Dollar store. [Petitioner] stated that Michael bought
something, and the three of them returned to the front of the Apple Market by
the drink machine until Michael left. [Petitioner] acknowledged seeing Taka
Pruitt arrive at the market. He claimed that he and Mr. Johnson knew her
because “[they] smoke[d] weed with her.”

Mr. Johnson spoke to Mr. Guidroz when he arrived at the market. After
Mr. Guidroz went inside, Mr. Johnson walked toward the Family Dollar store
because he did not want to be seen on the surveillance camera. According to
[Petitioner], Mr. Johnson “popped up on the other side” from where
[Petitioner] was and “scoped out” Mr. Guidroz’s car. [Petitioner] testified that
he was the lookout while Mr. Johnson got inside the car.

According to [Petitioner], when Mr. Guidroz came out of the store, he
saw Mr. Johnson in Mr. Guidroz’s car. Mr. Guidroz began struggling with Mr.
Johnson. [Petitioner] ran up to Mr. Guidroz, grabbed him, and “slung him”
into the car. He believed that Mr. Guidroz fell to the ground after he hit the
car. [Petitioner] admitted pushing Mr. Guidroz hard. [Petitioner] testified that
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he was scared and that he got into the car and drove it to Mr. Johnson’s house
on Beauchamp. Mr. Johnson did not get into the car with him. When Mr.
Johnson came home, [Petitioner] left. [Petitioner] testified that he did not have
a gun at the time he took the victim’s car and that his intent was to steal the car
and sell its parts.

The next day, Mr. Johnson called [Petitioner] and met him at the
Somerset Apartments, where [Petitioner] was staying. The car was parked at
an apartment complex across the street from the Somerset Apartments.
[Petitioner] believed that Mr. Johnson was the person who moved the car to
that location. [Petitioner] stated that on August 3, 2005, he and Mr. Johnson
went back to Mr. Johnson’s house in the victim’s car and drove it into the
garage. When the police arrived, [Petitioner] ran because he was scared. He
claimed he did not know at the time that the victim had died. The following
day, [Petitioner] turned himself in and gave a statement to the police.

When cross-examined about his statement to the police, [Petitioner]
admitted that he told police he left Mr. Johnson standing outside the Family
Dollar store when he took the victim’s car. He admitted telling police that he
did not leave the victim’s car at Mr. Johnson’s house. He also admitted telling
police that he drove a number of friends around and that he let his friend,
Reggie, use the car. [Petitioner] stated that he initially lied about Mr.
Johnson’s involvement because he did not want to “snitch” on him.
[Petitioner] admitted that his version of the events did not match the security
video, which shows Mr. Johnson walking to the Family Dollar store before the
carjacking and walking back after the carjacking. He said that most of his
statement to police was true. As to any inconsistencies between his version of
events and the testimony from Taka Pruitt and Mr. McCracken, he claimed
both were lying. He maintained that he did not intend to hurt the victim.

The State presented medical evidence regarding Mr. Guidroz’s injuries.
Dr. Karen Chancellor, the Chief Medical Examiner in 2005 for Memphis and
Shelby County, Tennessee, performed Mr. Guidroz’s autopsy. As a result of
her internal and external examinations of Mr. Guidroz, Dr. Chancellor
concluded that the cause of Mr. Guidroz’s death was multiple blunt force
injuries sustained to the head and chest and that the manner of Mr. Guidroz’s
death was homicide.

Dr. Chancellor found an abrasion on the front of Mr. Guidroz’s face and
a laceration on the left side of his forehead. She also noted that “there [was]
ecchymosis or hemorrhag[ing] around both eyes, and that was caused by skull
fractures . . . found inside the body.” The injuries to Mr. Guidroz’s body
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included bruising on the ear, the right and left side of the chest, the upper left
arm, the neck and shoulder, the right ankle, the backs of both hands, both
forearms, and the lips. Dr. Chancellor opined that all the victim’s bruises were
caused at the same time and at the time of the incident at the Apple Market.

As to her internal examination of Mr. Guidroz, Dr. Chancellor noted
that “there was quite a bit of hemorrhage overlying the ribs on the left side”
and a complete fracture of the clavicle. Eleven ribs on Mr. Guidroz’s left side
were fractured, with resulting bruises on the surrounding lung tissue. Dr.
Chancellor remarked that Mr. Guidroz had extensive blunt force injuries to his
head, which included skull fractures, bruises to brain tissue, and hemorrhaging
around the brain. In addition, Mr. Guidroz suffered a subdural hematoma,
which required surgery to avoid severe brain injury. She opined that the skull
fractures were caused by at least three separate blows or impacts to the left side
of the head. Mr. Guidroz also suffered fractures to the orbital plates directly
above the eyes, which resulted in blood collecting around his eyes.

Dr. Chancellor was unaware that Mr. Guidroz had coagulopathy, a
condition making him prone to bleed, but she was aware that Mr. Guidroz had
severe coronary atherosclerosis, a blockage of the blood vessels of the heart.
No evidence of surgical intervention for these blockages was present. Dr.
Chancellor did not collect any of Mr. Guidroz’s fractured bones during the
autopsy. Dr. Chancellor stated that, although the practice of removing bones
during autopsy was once “in vogue,” the practice is no longer common. She
also did not conduct a bone density test on Mr. Guidroz because a bone density
test is not a routine part of an autopsy. Although she opined that Mr. Guidroz’s
injuries were consistent with being beaten, she was not able to determine the
order of his injuries or whether his injuries resulted from being struck by a hard
object, being forcibly thrust against a hard object, or a combination of these
two actions. She did not believe, however, that a fall alone would have caused
all of his injuries.

The defense introduced testimony from Dr. O.C. Smith, former Chief
Medical Examiner for Shelby County, Tennessee. Dr. Smith reviewed the
medical examiner’s files and Mr. Guidroz’s medical records in July 2007. Dr.
Smith noted several deficiencies in the autopsy record. He commented on the
absence of X-rays taken as part of the autopsy procedure and the absence of
bones for review. Dr. Smith testified that bones can be excised, cleaned, and
retained in inventory, or can be preserved with photographs or X-rays. Dr.
Smith testified that when he was the medical examiner, the lab was able to test
for bone density either by X-ray or by excising the bone and examining it. He
opined that loss of bone density due to age or osteoporosis could have made
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Mr. Guidroz’s bones more vulnerable to trauma. Dr. Smith’s routine practice
when he was medical examiner was to excise every fractured bone in a
homicide or suspected homicide. He also commented that he was unable to
examine Mr. Guidroz’s brain specimen because the preserving fluid had been
allowed to dry out.

Dr. Smith testified that Mr. Guidroz’s medical records indicated he
suffered from coagulopathy, which made him prone to bleed. Mr. Guidroz lost
1.5 liters of blood during his brain surgery, which required a transfusion of
blood, fresh frozen plasma, and platelets. Dr. Smith opined that the
coagulopathy, together with the blockages in Mr. Guidroz’s heart, made him
particularly vulnerable to injury. The coagulopathy also would have caused
“seepage” of blood during surgical procedures, which would have made Mr.
Guidroz’s injuries look worse than they actually were. The ecchymosis, or
hemorrhaging or bleeding under the skin, on various parts of Mr. Guidroz’s
body also could have been exacerbated by the coagulopathy. Dr. Smith
discussed a condition known as “senile ecchymosis” that occurs as part of the
aging process and opined that some of Mr. Guidroz’s ecchymosis might be
attributable to his age. He explained that with such a condition, even minor
trauma can cause bruising with superficial bleeding on the skin’s surface. He
conceded that the ecchymosis could be from the original injuries but thought
that it was probably a combination of surgery and original injury. Dr. Smith
agreed that blood beneath the skin on the left side of Mr. Guidroz’s neck likely
resulted from the fracture and dislocation of the clavicle and fractures of the
adjacent ribs, not from surgery.

Dr. Smith found evidence of a “contre-coup” or “decelerating” brain
injury and distinguished between accelerative trauma and contre-coup trauma.
Accelerative trauma occurs when a moving object strikes a fixed head and
leaves a bruise on the skin and causes damage in the area of the brain
immediately beneath the blow. A contre-coup injury, however, is decelerative
trauma caused when a moving head hits a fixed object. Injury to the skin
occurs at the point of impact, but the injury to the brain occurs on the opposite
side of the head. Dr. Smith testified that, although the fractures of Mr.
Guidroz’s skull were on the left side of his head, he suffered a contre-coup
injury to the right side of his brain, indicating that his injuries occurred in a
fall.

Dr. Smith noted that the fractures to the clavicle, ribs, and head were all
on Mr. Guidroz’s left side and opined that the cause of death was “a fall to a
flat surface or some contact where the body is in motion, and then it’s been
arrested by a hard, unyielding surface.” Dr. Smith opined that the fall could
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have been from a standing height, from running and falling, from falling from
a height, or from being propelled, depending on the strength of Mr. Guidroz’s
bones and the force that caused the fall. He ruled out the possibility that blows
or strikes to Mr. Guidroz’s body were the sole cause of his injuries.

Dr. Smith agreed with Dr. Chancellor that the manner of Mr. Guidroz’s
death was homicide and the cause of Mr. Guidroz’s death was blunt force
injury to his head and chest. He also agreed that Mr. Guidroz’s injuries were
consistent with a scenario of

being pushed in on the left-hand side of his car—something was
going [on] in that front seat of the car to the point that an eye
witness saw Mr. Guidroz’s feet dangling . . . out of the driver’s
side door with the [d]efendant on top of him, and then the next
thing that an eye witness sees is this [d]efendant pick up the body
of Mr. Guidroz and sling him out of [the] car onto the concrete.

Dr. Bruce Levy, then Chief Medical Examiner for the State of
Tennessee and the Medical Examiner for Davidson County, testified for the
State in rebuttal. Although Dr. Smith’s routine practice during his tenure was
to remove bones from the body and store them, Dr. Levy testified that this
practice was unique to Memphis and uncommon. In Dr. Levy’s opinion, Dr.
Chancellor, who actually performed the autopsy, was in the best position to
render opinions as to what she saw and to interpret her observations. In his
view, she followed the standard practice of documenting the autopsy by
photographs, diagrams, and narratives describing what she saw.

Dr. Levy stated that Mr. Guidroz suffered blunt force trauma injuries.
He opined that the victim’s skull fractures, which were indicative of at least
two separate blows, combined with the fractures to the ribs and clavicle, led to
a “differential diagnosis.” In other words, there could be different causes for
the injuries: either a fall from some height, a car collision, or an accelerated
fall in which the victim was thrown to the ground with some force. Dr. Levy
opined that breaking eight or nine ribs was not consistent with a simple fall to
the ground, but might be consistent with an accelerated fall. Likewise, the
multiple injuries to the chest, arms, face, and head were inconsistent with a
simple fall.

He testified that when faced with a differential diagnosis, a medical
examiner will rely on the history of the case. In this case, the anecdotal reports
that Mr. Guidroz was assaulted in a carjacking and thrown to the ground were
factors in determining the cause of his injuries. Dr. Levy testified that “body-
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slamming” can cause multiple fractures like the ones observed in Mr. Guidroz.
The presence of complex skull fractures was indicative of a significant amount
of force, “much greater than you could possibly get from simply falling to the
ground and striking your head on a flat surface.”

Based on the evidence, the jury convicted [Petitioner] of first degree
felony murder in the perpetration of a robbery. The jury also convicted
[Petitioner] of second degree murder as a lesser-included offense of the
charged first degree premeditated murder. The trial court merged the two
convictions and proceeded to the penalty phase.

B. Evidence at Penalty Phase

Marie Leech[, wife of Thomas Leech,] was a close family friend of Mr.
Guidroz. She testified that she met Mr. Guidroz at St. Paul the Apostle
Catholic Church and had known him for more than twenty-five years. On
Sundays after church, Mr. Guidroz usually had dinner at Ms. Leech’s home.
Mr. Guidroz was the godfather of Ms. Leech’s middle child and particularly
close to that child. Ms. Leech explained that Mr. Guidroz had a very active
life. He attended Mass daily at different churches throughout Memphis and
went to St. Peter Villa, an assisted living facility, three days a week to visit and
care for residents there. Ms. Leech testified that Mr. Guidroz was fondly
regarded in the Oakhaven neighborhood where he had lived for more than forty
years.

The State introduced [Petitioner]’s indictments and judgments of
conviction from five prior offenses through Shelby County Criminal Court
Deputy Clerk, Alice Robinson. Those offenses were robbery and an attempted
robbery committed on November 26, 2002, and three aggravated robberies
committed on November 4, 1996.

In mitigation, [Petitioner] presented the testimony of Dr. Rebecca
Rutledge, a clinical psychologist, who assessed him in November 1996 at the
request of the Memphis and Shelby County Juvenile Court. [Petitioner] was
sixteen years old at that time. As part of her assessment, Dr. Rutledge
administered to [Petitioner] the Slosson Intelligence Test, a Bender Visual
Motor Gestalt Test, and a Rorschach Psycho-diagnostic Technique Test.
[Petitioner]’s score on the Slosson test was sixty-six, which is in the upper
mildly mentally retarded range. Dr. Rutledge stated that someone who is
mildly mentally retarded would tend to be impulsive and would not likely
consider the consequences of his actions. She noted that at the time of the
assessment, which lasted about forty-five minutes to one hour, [Petitioner] did
- 12 -
not appear to be taking the process seriously. She stated that [Petitioner]’s test
results may have been slightly lower than his actual level of cognitive
functioning. She opined, however, that had he put forth more effort he would
have continued to test in the mildly mentally retarded range. She did not have
access to [Petitioner]’s academic records at the time of the evaluation and knew
only that he had repeated the first grade. She also commented that mild mental
retardation is difficult to recognize because the person may appear “normal”
until he is engaged in conversation. The level of functioning of a person who
is mildly mentally retarded can improve with training, family support, job
support, and various community resources.

Prior to her testimony, Dr. Rutledge reviewed a report from the Middle
Tennessee Mental Health Institute (“MTMHI”) resulting from a September
2006 evaluation of [Petitioner]. She noted that the MTMHI staff’s diagnosis
of [Petitioner] as mildly mentally retarded was consistent with her 1996
diagnosis.

On cross-examination, Dr. Rutledge conceded that she did not have any
particular memory of [Petitioner]. At the time of the 1996 screening, she did
not find that he suffered from any mental illness that would have prevented his
transfer to adult court, nor did she find any disorders when she administered
the Rorschach and the Bender Gestalt tests. Dr. Rutledge testified that the
juvenile court asked her to administer the Slosson test. She explained that the
Slosson test was designed to provide an estimate of general verbal cognitive
ability in a short time frame. She acknowledged that the Slosson test, unlike
other tests, did not have built-in standards for determining malingering. Dr.
Rutledge testified that the Wechsler Adult Intelligence Screening (“WAIS”)
test is the “gold standard” for functional intelligence quotient (“I.Q.”) testing
and is better at discerning specific areas of impairment. She opined, however,
that [Petitioner] “would have fallen pretty close to [his score on the Slosson
test]” if he had been given the WAIS test in 1996.

Dr. Rutledge was aware of the staff observations in the MTMHI
evaluation that [Petitioner] was exaggerating his mental illness symptoms.
MTMHI had also noted [Petitioner]’s self-reported paranoid schizophrenia,
although there was no record of his having received treatment for the disorder.
Dr. Rutledge conceded that [Petitioner] could have deliberately
underperformed on the 1996 Slosson test to avoid being transferred to adult
court. She also conceded that [Petitioner] had many reasons to underperform
during his 2006 assessment at MTMHI because of his pending capital murder
charges.

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 [Petitioner]’s mother, Vivian Pruitt, testified that if [Petitioner] were to
receive a death sentence, it “would just kill [her] too.” She recounted that
[Petitioner] was the youngest of five children she had by three different men.
[Petitioner]’s father was about sixteen years younger than Ms. Pruitt, and
[Petitioner] never had a relationship with him. When she was pregnant with
[Petitioner], Ms. Pruitt smoked, but she did not recall drinking. When
[Petitioner] was born, she was married to Walter Lee Pruitt. Although the two
have since divorced, [Petitioner] thought of Walter Lee Pruitt as his father and
was close to him.

Vivian Pruitt detailed a family history of mental health issues. She had
previously been hospitalized at Memphis Mental Health Institute three times
due to addiction problems, but had been sober for fifteen to twenty-five years
at the time of trial. During her period of addiction, she was arrested numerous
times, usually for minor offenses like public intoxication, and was frequently
in and out of prison. On one occasion she was arrested for aggravated assault
when she shot [Petitioner]’s father. When Ms. Pruitt was in prison, [Petitioner]
stayed with his grandmother, Frankie Timberlake.

According to Ms. Pruitt, Ms. Timberlake, who helped raise [Petitioner],
spent time in and out of mental institutions. Several of Ms. Timberlake’s
siblings (Vivian Pruitt’s aunts and uncles) had mental health problems as well.
One of Ms. Timberlake’s siblings died from a drug overdose and another
committed suicide. One of [Petitioner]’s sisters, Tapika Pruitt, had attempted
suicide several times. Vivian Pruitt considered [Petitioner] a normal child with
good test scores, and she never sought any type of treatment for him. He did
not seem “slow” to her, but she believed he was in resource class in fifth and
sixth grade.

Vivian Pruitt testified that [Petitioner]’s first arrest was at age thirteen
or fourteen and that he had experienced “problems” since that time. After
[Petitioner] was released from juvenile court, he was arrested for several other
offenses, including stealing shoes and writing graffiti on the school walls. He
was in and out of juvenile court and was sent at various times to different
juvenile facilities. He escaped from the Memphis Boys Group Home after he
was charged with the three aggravated robbery offenses in 1996. Ms. Pruitt
testified that [Petitioner] eventually quit school “because they had him in
juvenile.”

Ms. Pruitt said that [Petitioner] was living with his aunt, Alma Rockett,
on the day of the carjacking and was scheduled to work at Patterson
Warehouse. She indicated that [Petitioner] had moved in with Ms. Rockett
- 14 -
after he and his sister, Quiana Pruitt, with whom he had been living, had a
dispute about [Petitioner]’s discipline of Quiana’s son. Vivian Pruitt believed
[Petitioner] was experiencing stress over the fight with his sister and his
housing situation at the time of the offense.

Quiana Pruitt testified that if her brother were sentenced to death and
executed it would “really hurt [her].” She and [Petitioner] have the same
father, who was not involved in their lives, and she considered Walter Pruitt
her father. She recounted that she and [Petitioner] had a difficult upbringing.
Their grandmother, Ms. Timberlake, was their primary caretaker because their
mother was frequently in prison. Their aunt, Alma Rockett, told them their
mother was “on drugs, didn’t want [them], [and] neglected [them].” Quiana
Pruitt also recounted the family history of mental health problems. Her mother
and extended family on her mother’s side – including an uncle and two aunts
– suffered from paranoid schizophrenia. Their sister, Tapika, had mental
health and drug problems. Ms. Timberlake had Alzheimer’s disease and was
hospitalized in a mental institution in 2000.

Quiana Pruitt did not consider her brother “slow” when he was growing
up. She recalled that [Petitioner] began getting into trouble at the age of
thirteen or fourteen and was in and out of “juvenile.” He eventually dropped
out of school in the seventh grade. [Petitioner] moved in with Quiana Pruitt
and their mother following his release from prison after serving his sentence
for the 1996 aggravated robbery convictions. [Petitioner] left their home after
attempting to discipline Quiana Pruitt’s son and went to live with his aunt,
Alma Rockett.

In rebuttal, the State presented Sandra Atkinson, the records supervisor
for Memphis City Schools. Ms. Atkinson reported that [Petitioner] was
enrolled in the first grade at Carnes Elementary School in September 1987.
Although his grades and conduct were average in the first grade, he was
retained and repeated the first grade. During April of his second year in the
first grade, he transferred to Larose Elementary School, where he remained for
the rest of his elementary school years. [Petitioner] received mostly As and Bs
for grades, and Es and Ss for conduct. His Tennessee Comprehensive
Assessment Program (“TCAP”) scores varied somewhat from year to year but
at times were exceptional. He scored in the ninety-eighth percentile overall
during his fifth-grade year and in the ninety-fifth percentile overall during his
sixth-grade year.

[Petitioner]’s academic performance declined dramatically during his
seventh-grade year. He enrolled at Vance Middle School in the Fall of 1994
- 15 -
and attended until December, when he transferred to Colonial Middle School
for one week, then returned to Vance Middle School until May 5, 1995, after
which he withdrew. Ms. Atkinson testified that [Petitioner] was frequently
absent in the seventh grade. No grades were available because he did not
complete his seventh-grade year. Although [Petitioner] took some of the
TCAP tests, he apparently missed some of the testing days because he had no
scores for reading or spelling. [Petitioner]’s remaining scores were poor,
ranging from a low in the eighth percentile for science to a high in the forty-
second percentile for study skills.

Although [Petitioner] did not complete the seventh grade, he was
nevertheless promoted to the eighth grade. During his eighth-grade year in
1995, however, he did not attend school until November 2, 1995, and he
stopped attending after January 30, 1996. His grades were dramatically lower
his eighth-grade year, reflecting all Fs for the semester. His records were
transferred to an alternative school on April 26, 1996. Ms. Atkinson testified
that the transfer to an alternative school could have been for non-attendance or
behavior issues, but the records did not reflect the reason. Nothing in
[Petitioner]’s records indicates that he was ever in a resource class.

In surrebuttal, the defense recalled Vivian Pruitt to explain the dramatic
decline in [Petitioner]’s academic performance following elementary school.
She testified that [Petitioner] fell in the fifth grade and struck his head. She
stated that he had persistent headaches following that injury, but that she
“didn’t think it was that serious.” When he was in the seventh grade, four of
[Petitioner]’s friends were killed in a particularly gruesome car wreck.
[Petitioner] went to the scene and observed their injuries. [Petitioner]’s
behavior declined after witnessing the accident. [Petitioner] also had a brother
who died from AIDS during this period. Ms. Pruitt testified that she did not
believe [Petitioner] knew right from wrong or that he meant to kill Mr.
Guidroz.

Prior to the jury charge in the penalty phase and before closing
arguments, [Petitioner] made an oral motion challenging the appropriateness
of the death penalty in his case pursuant to Tennessee Code Annotated section
39-13-203 because he had a functional I.Q. “below seventy” and deficits in
adaptive behavior. The trial court denied the motion, noting that neither the
court nor the State had been provided notice that a motion pursuant to
Tennessee Code Annotated section 39-13-203 would be made. The trial court
commented that the motion should have been filed prior to trial and stated that
the timing of the motion was improper.

- 16 -
 The jury found that the State had proven beyond a reasonable doubt the
aggravating circumstances that: (1) [Petitioner] was previously convicted of
one or more felonies, other than the present charge, whose statutory elements
involve the use of violence to the person; (2) the murder was knowingly
committed, solicited, directed, or aided by the [Petitioner], while [Petitioner]
had a substantial role in committing, or attempting to commit, or was fleeing
after having a substantial role in committing or attempting to commit a
robbery; and (3) the victim was seventy years of age or older at the time of the
murder. See Tenn. Code Ann. § 39-13-204(i)(2), (7), (14) (2010). The jury
further found that the State had proven beyond a reasonable doubt that the
statutory aggravating circumstances outweighed any mitigating circumstances
and sentenced [Petitioner] to death.

C. Evidence at the Hearing on the Motion for New Trial

After the jury returned a sentence of death, [Petitioner] filed a motion
for new trial, in which he challenged, among other things, the trial court’s
refusal to consider his oral motion to disallow the consideration of the death
penalty due to intellectual disability. At a hearing, trial counsel testified that
he had given the State a “Notice of Intent to Present Expert Testimony
Regarding Mental Condition” on February 5, 2008, but failed to formally file
this motion with the trial court clerk until March 10, 2008, after the trial had
ended. He argued that this motion, together with the proof at trial of
[Petitioner]’s diagnosis of “mild mental retardation” gave the State sufficient
notice that he was challenging the applicability of the death penalty.

The trial court held a hearing on December 12, 2008, and January 16,
2009, on the issue of [Petitioner]’s eligibility for the death penalty. The
defense initially rested on the proof presented at trial by Dr. Rutledge. The
State introduced testimony from Dr. Sam Craddock, a clinical psychologist at
MTMHI, who testified that he evaluated [Petitioner] from August 31 to
September 27, 2006, at MTMHI. During this evaluation, MTMHI staff
observed [Petitioner] “around the clock.” Dr. Craddock administered I.Q.
tests, aptitude tests, and a personality test. In addition to interviewing
[Petitioner]’s mother, Dr. Craddock also examined law enforcement files in
the case, certain court documents filed in the case, and a forensic evaluation
conducted by the Midtown Mental Health Center.

Dr. Craddock identified a staff conference report from MTMHI dated
September 22, 2006. Noted on the report was an Axis I diagnosis of
“schizophrenia, differentiated type,” and an Axis II diagnosis of “mild mental
retardation.” Dr. Craddock testified that the latter diagnosis was recorded in
- 17 -
error and should have read “borderline intellectual functioning.” Other notes
throughout the file, including the discharge summary, recorded the Axis II
diagnosis as borderline intellectual functioning, not mental retardation. Dr.
Craddock could not explain why he had made the transcription error. After
reviewing [Petitioner]’s records, Dr. Craddock prepared an addendum to the
report stating that the “mild mental retardation” note was made in error.

Dr. Craddock testified that there are three requirements for a diagnosis
of mental retardation: subaverage intellectual functioning demonstrated by an
I.Q. below seventy, impairments in the subject’s adaptive functioning, and a
diagnosis before the age of eighteen. [Petitioner]’s I.Q. score was sixty-eight
on the test Dr. Craddock administered at MTMHI. Dr. Craddock
acknowledged that his report indicated [Petitioner] appeared to be making a
good effort on the test “[w]ith the exception of him occasionally giving quick
responses with accompanying little thought.” Dr. Craddock therefore believed
that [Petitioner]’s I.Q. was actually higher than his scores reflected.

Other factors led Dr. Craddock to conclude that [Petitioner]’s score was
not indicative of mental retardation. For instance, at the age of eighteen,
[Petitioner] had received a score of eighty-one on a Beta test administered
through the Department of Correction. At that time, [Petitioner] indicated an
interest in earning his Graduate Equivalency Degree and learning about small
engine repair. The Beta test score indicated that [Petitioner] was reading at an
eighth-grade level, spelling at a high school level, and understanding math at
a fifth-grade level. Furthermore, [Petitioner]’s school records indicated he had
performed well both academically and on his TCAP tests until the sixth grade.
School records did not indicate that [Petitioner] was ever in special education
classes, which Dr. Craddock would have expected if [Petitioner] was mentally
retarded.

Dr. Craddock also did not see any deficits in [Petitioner]’s adaptive
behavior. [Petitioner] had stated to Dr. Craddock that one of his interests was
playing chess, which Dr. Craddock noted is inconsistent with someone who is
mentally retarded. Also, Dr. Craddock “question[ed] the scores because
mentally retarded individuals . . . typically score high on performance and low
on verbal.” [Petitioner]’s scores revealed just the opposite. Dr. Craddock
stated that

[w]hen you score low on performance, there is an implication
there that you may not be making your best effort. So, if you
look in the textbooks, time after time, mentally retarded people,
they have poor[er] verbal, math skills, and so forth than they do
- 18 -
 manipulation skills, visual skills, but that was not the case with
[Petitioner].

In rebuttal, [Petitioner] presented the testimony of Dr. Rutledge. She
had compared the results of the test that she administered to [Petitioner] with
the results of the test administered by Dr. Craddock. She stated that both tests
indicated [Petitioner] had an I.Q. of approximately sixty-eight. Dr. Rutledge’s
memory of [Petitioner]’s adaptive skills was that he had fifth-grade reading
skills, third-grade math skills, was unable to live independently, and was
unable to remain gainfully employed. She admitted that she last saw
[Petitioner] twelve years earlier, when he was sixteen years old and spent, at
most, an hour with him. She also admitted that at the time she thought his
scores might not accurately reflect his actual ability. She did not have his
school records and was unaware that at one point he scored in the ninety-eighth
percentile on his TCAP tests.

On May 22, 2009, the trial court entered an order denying [Petitioner]’s
motion for new trial and found that [Petitioner] had failed to prove by a
preponderance of the evidence that he was intellectually disabled and thus
ineligible for the death penalty under Tennessee Code Annotated section 39-
13-203. The trial court found that [Petitioner] had failed to prove by a
preponderance of the evidence that he had significantly subaverage intellectual
functioning as evidenced by an I.Q. of seventy or below. The court found that
neither the test score in 1996 nor the test score in 2006 was the product of
[Petitioner]’s best efforts and that his grades in school and TCAP scores
indicated that the 1996 and 2006 test scores were unreliable. The trial court
also determined that [Petitioner] failed to prove by a preponderance of the
evidence that he suffered deficits in his adaptive behavior. The trial court
based this finding on [Petitioner]’s excellent performance in school through
the sixth grade and testimony from his mother that he seemed like a “normal”
child. The trial court also noted Dr. Craddock’s testimony that he did not see
any deficits in [Petitioner]’s adaptive behavior. The trial court found that the
drop in [Petitioner]’s grades and test scores after the sixth grade appeared to
result from traumatic events in his life, drug use, incarceration, and absence
from school.

Id. at 187-200 (footnotes omitted).

On the issue of intellectual disability, the Tennessee Supreme Court noted that the
“review of [Petitioner]’s intellectual disability claim has been made more difficult by
[Petitioner]’s timing in raising the issue at trial” and that the “best practice” would have
been “to raise the issue in a pretrial setting to ensure that both the State and the defendant
- 19 -
are provided a full and fair opportunity to collect, exchange, and present the requisite
proof.” Id. at 201. However, the supreme court reviewed the evidence in the record “to
determine if [Petitioner] has an intellectual disability that precludes imposition of the death
penalty.” Id.; see T.C.A. § 39-13-203(b) (2010). The supreme court held that the evidence
preponderated against the trial court’s finding that Petitioner’s I.Q. scores were
“unreliable” because “neither expert opined that [Petitioner]’s I.Q. was greater than 70,
whether through lack of effort or on some other basis for adjustment of the raw score.”
Pruitt, 415 S.W.3d at 203. Therefore, the supreme court concluded that Petitioner had met
his burden of proving by a preponderance of the evidence that he had significantly
subaverage general intellectual functioning as evidenced by a functional I.Q. of 70 or
below. Id.; see T.C.A. § 39-13-203(a)(1) (2010).2 However, the supreme court noted that
“little evidence was presented” regarding whether Petitioner had any deficits in adaptive
behavior and whether his intellectual disability manifested before the age of eighteen.
Pruitt, 415 S.W.3d at 204; see T.C.A. §§ 39-13-203(a)(2), (3) (2010). Accordingly, the
supreme court affirmed the trial court’s finding that Petitioner failed to establish that he
had an intellectual disability that rendered him ineligible for the death penalty. Pruitt, 415
S.W.3d at 204.

The Tennessee Supreme Court was split on the issue of the comparative
proportionality of the death penalty in this case. See T.C.A. 39-13-206(c)(1)(D). The
majority opinion reaffirmed the analysis set out in State v. Bland, 958 S.W.2d 651 (Tenn.
1997), which compared the case at bar to other first degree murder cases in which a capital
sentencing hearing had been conducted. Pruitt, 415 S.W.3d at 213-17. Upon conducting
a comparative proportionality review with such cases, the majority determined that
Petitioner’s death sentence was not disproportionate. Id. at 217-223. Two Justices
concurred with the majority’s decision to affirm Petitioner’s conviction but dissented with
respect to both the appropriate pool of comparison cases as well as to the proportionality
of the death penalty in this case. Id. at 223 (Koch and Lee, JJ. concurring in part and
dissenting in part). The dissenting Justices staunchly disagreed with the Bland analysis
and argued that the pool of comparison cases should include all cases that resulted in a
conviction for first degree murder. Id. at 225-232. The dissenting Justices, comparing
Petitioner’s case both to cases in which the death penalty was sought and cases in which it
was not, concluded that Petitioner’s offense was “much more similar to crimes that did not
result in the death penalty than to crimes that did.” Id. at 232-237.

II. Post-Conviction Proceedings

2
Tennessee Code Annotated section 39-13-203(a)(1) was amended effective May 11, 2021,
removing the language “as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below.”
See 2021 Tenn. Pub. Acts, ch. 399, § 1. The amendment of this subsection, and the addition of subsection
(g), does not affect our opinion in this case.
- 20 -
 Petitioner subsequently filed a timely petition for post-conviction relief. Post-
conviction counsel was appointed, and an amended petition was filed raising numerous
claims related to ineffective assistance of counsel, prosecutorial misconduct, intellectual
disability, and the constitutionality of the death penalty. Petitioner filed a motion seeking
the recusal of the post-conviction judge, the denial of which was affirmed by this court in
an accelerated interlocutory appeal pursuant to Tennessee Supreme Court Rule 10B, § 2.
See Corinio Allen Pruitt v. State, No. W2017-00960-CCA-T10B-CO (Tenn. Crim. App.,
at Jackson, July 31, 2017) (order), perm. app. denied (Tenn. Oct. 17, 2017). The
evidentiary hearing in this case was conducted over multiple days between April and
August 2018, during which the following testimony was presented.

A. The Prosecutors and General Weirich’s Family

Assistant District Attorney Carolyn Alanda Dwyer testified that she was the lead
prosecutor in the Special Prosecution Unit. Ms. Dwyer explained that Petitioner’s case
qualified for the Special Prosecution Unit because of his prior record. Ms. Dwyer testified
that she was involved in Petitioner’s case since it was indicted, although she did not recall
handling Petitioner’s preliminary hearing. She testified that the usual practice in Shelby
County was for the prosecutor handling the case to determine the charges to be presented
to the grand jury, so it would have been her decision to charge Petitioner with both felony
murder and premeditated murder. Before filing a notice of intent to seek the death penalty,
Ms. Dwyer reviewed the facts of the case and the applicable aggravating factors with then-
District Attorney General William L. Gibbons and received his approval to file the notice.
Ms. Dwyer testified that there was no formal process for the defense to present mitigating
evidence at the time the charging decision or the decision to seek the death penalty is made
and that she had no information regarding Petitioner’s mental health or I.Q. at that time.

Ms. Dwyer did not recall signing an agreed order to have Petitioner evaluated at
MTMHI because the doctor at Midtown Mental Health Center had concerns about his
competency, but she explained that such an order was a “form order that we enter on most
homicide cases.” Ms. Dwyer acknowledged that she received notice of the defense team’s
intent to present expert testimony regarding Petitioner’s mental condition through Dr.
Rutledge, but she did not recall when she received such notice. She agreed that there was
a note in her file to obtain Petitioner’s mental health records in order to rebut such
testimony and that she subpoenaed records from TDOC in February of 2008. Ms. Dwyer
agreed that her file contained “form responses” to defense motions requesting individual
voir dire and jury questionnaires that she printed but never filed because the defense never
filed such motions in this case. She explained that individual voir dire was not a common
practice in Shelby County at the time, though it was more common at the time of the post-
conviction hearing.

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 Ms. Dwyer testified that then-Assistant District Attorney Amy Weirich3 became
involved in the case just a week or two before trial. Ms. Dwyer testified that another
prosecutor had recently left the office so she asked Gen. Weirch to help her pick the jury.
Ms. Dwyer testified that “it had been awhile since I had done a death penalty case” and
that she relied on Gen. Weirich’s experience. Ms. Dwyer denied that she had ever seen a
“Voir Dire Manual” that was supposedly used by the District Attorney’s Office as a
training tool. She disagreed with some of the manual’s suggestions that the goal of voir
dire is to establish the credibility of the prosecutor and “to get [the jury] on the side of the
State,” explaining that “the most important thing is the jury understand their duty and
they’re to follow the law.”

Katherine4 Alfonso Weirich, the mother-in-law of Gen. Weirich, testified that she
was employed at St. Paul Catholic Church as an administrative assistant and choir director.
Mrs. Weirich knew the victim in this case because he sang in the choir that usually
performed at funerals. She testified that the victim was a “very private person. He was in
my choir, but I can’t say that I knew him other than he was always there to come and sing.”
She testified that she did not socialize with the victim, though she was friends with Marie
and Thomas Leech, who both testified for the State at trial. Because of her employment at
the church, Mrs. Weirich received a call that the victim had been “carjacked and beat up,”
so she went to the hospital. After the victim passed away, Mrs. Weirich assisted with his
funeral arrangements, “pretty much [taking] care of . . . the planning, the reading, the songs
and all that.” She also directed the choir that sang at the victim’s funeral, which was not
unusual given her role at the church. Mrs. Weirich attended Petitioner’s trial as a
representative of the church, and she knew that her daughter-in-law was one of the
prosecutors. Mrs. Weirich did not have any discussions with the prosecution regarding the
potential outcome of the sentencing phase. Mrs. Weirich had attended other trials as an
observer, including at least two murder trials prosecuted by Gen. Weirich.

Charles Weirich, Gen. Weirich’s husband, testified that he is an attorney in the
Memphis area. Mr. Weirich and his family attended St. Paul Catholic Church until they
moved to East Memphis. At that point, Mr. Weirich continued to attend St. Paul as a lector
while his family attended a different church. Mr. Weirich would advertise his services as
an attorney at St. Paul. In 2002, Mr. Weirich was contacted by the victim, whom he
recognized from the church, about drafting a will. At the time, the law required an executor
to live in Tennessee, so Mr. Weirich agreed to be co-executor of the victim’s will with
Thomas Leech, who lived out of state. After the victim’s death, Mr. Weirich filed a petition

3
In January of 2011, after Petitioner’s trial but before the post-conviction hearing, Amy Weirich
became the District Attorney General of Shelby County. Accordingly, we will refer to her throughout the
opinion as Gen. Weirich, particularly as it distinguishes her from other witnesses who share her last name.
4
Petitioner’s brief indicates that this witness’s name may actually be spelled “Catherine.” This
opinion will utilize the spelling used in the transcript and the post-conviction court’s order. No disrespect
is intended if this is an incorrect spelling.
- 22 -
to probate the estate in his role as an attorney. He attempted to renounce his role as a co-
executor, but the probate judge wanted either an in-state executor who was subject to the
contempt power of the court or for Mr. Leech to post a bond. Mr. Weirich agreed to stay
on as co-executor, and he was eventually paid $5,000 “for fees and expenses related to the
administration of the estate.” The estate was closed in September of 2007, several months
before Petitioner’s trial. Mr. Weirich testified that the outcome of the criminal prosecution
in this case had no bearing on the probate proceedings.

District Attorney General Amy P. Weirich testified that in 2008, she was the head
of the Gang and Narcotics Prosecution Unit for the Shelby County District Attorney’s
Office. She became involved in Petitioner’s trial when Ms. Dwyer asked her to assist with
the case the week before trial. Because of other cases she was trying, Gen. Weirich did not
read through the file until the weekend prior to the start of trial. Gen. Weirich testified that
she was aware that the defense team would present evidence that Petitioner was
intellectually disabled but that she was not involved in any pretrial discussions of the
matter. Gen. Weirich did not specifically recall that she was the “primary attorney handling
voir dire” or that voir dire was completed in a single day. Gen. Weirich testified that she
had seen the “Voir Dire Manual” as a reference available in the District Attorney’s Office
but that she had never been instructed by previous supervisors to study it or relied on it in
preparing for voir dire. Gen. Weirich testified that she had participated in capital cases
where individual voir dire was used but that it was not a common practice.

Gen. Weirich recalled that Thomas Leech testified as a witness during the guilt
phase of Petitioner’s trial and that his wife, Marie Leech, testified during the sentencing
phase. Gen. Weirich testified that she knew the Leeches prior to trial because they were
“good friends of my in-laws” as well as through attending St. Paul Catholic Church. Gen.
Weirich testified that she was not aware of the probate of the victim’s estate at the time of
trial. Gen. Weirich testified that she did not have an independent recollection of her
mother-in-law attending the trial but that it would not surprise her that Mrs. Weirich would
attend as a representative of the church and as support for the Leech family. Gen. Weirich
was unaware that Mrs. Weirich was involved in the victim’s funeral arrangements but
explained “that was one of her main responsibilities for members of the parish who died[.]”
Gen. Weirich testified that she did not attend the victim’s funeral.

B. Petitioner’s Defense Team

Lead counsel5 testified that when he first began representing Petitioner in 2005, he
was employed part-time in the Capital Case Unit of the Shelby County Public Defender’s
5
Petitioner was initially represented by two attorneys from the Shelby County Public Defender’s
Office. When one attorney left the Capital Case Unit, a new attorney joined the defense team. All three
attorneys testified at the post-conviction evidentiary hearing. For the sake of clarity, we will refer to the
trial attorneys together as “trial counsel” and individually as “former lead counsel,” “lead counsel,” and
- 23 -
Office while also maintaining a private practice consisting of both criminal and civil cases.
Throughout the three years leading up to Petitioner’s trial, lead counsel was also assigned
to approximately 38 other cases with the Capital Case Unit for varying lengths of time,
although not every case resulted in a capital trial. Lead counsel was originally assigned to
Petitioner’s case as co-counsel with another attorney in the Public Defender’s Office.
Former lead counsel was primarily in charge of case development while lead counsel
assisted “mostly under her direction.” When former lead counsel left the capital case unit
prior to Petitioner’s trial, lead counsel took over and new co-counsel joined the team. At
that point, the primary responsibility for case development shifted to lead counsel because
he had more experience handling capital cases. Petitioner’s defense team also consisted of
Ralph Nally as a fact investigator and Jeanette Stanback as a social investigator.

Lead counsel testified that he attended an initial intake interview of Petitioner on
August 26, 2005, along with other members of the defense team. Lead counsel testified
that he attended monthly case reviews with the entire Capital Case Unit where pending
cases “were discussed and strategized.” Lead counsel identified some formal, written
requests for Mr. Nally to investigate certain issues, and he testified that he also made casual,
verbal requests for investigation. The defense team was able to put together an arrest
history for Petitioner’s mother, Vivian Pruitt, going back to Petitioner’s birth, but lead
counsel acknowledged that he did not obtain records for any arrests during Vivian’s
pregnancy with Petitioner. One of the defense’s mitigation theories was “bad family
situation,” which lead counsel explained included “Vivian Pruitt’s history with respect to
arrests before and other behavior.” However, lead counsel agreed on cross-examination
that he made strategic choices based on how the jury may view the evidence and that he
did not think that Vivian’s arrests would be viewed as mitigating.

Lead counsel recalled that the trial court signed an agreed order in June 2006 for
Petitioner to be evaluated at Midtown Mental Health Institute to determine his competency
to stand trial and mental status at the time of the offense. In August 2006, clinical
psychologist Dr. John Whirley sent a letter to the trial court expressing concerns about
Petitioner’s competency to stand trial and recommending that Petitioner be transferred to
MTMHI for further evaluation. During the evaluation at MTMHI, Dr. Craddock
administered the Wechsler Adult Intelligence Scale 3 (WAIS-3) and determined that
Petitioner had a full-scale I.Q. score of 68. Lead counsel acknowledged that Dr. Craddock
did not administer any tests of adaptive functioning or have any adaptive rating scales from
family members. Lead counsel did not recall providing any information to MTMHI to
assist with an adaptive behavior assessment. However, Dr. Craddock’s psychological
evaluation report indicated that Petitioner was diagnosed with mild mental retardation in
addition to schizophrenia and substance abuse.

“co-counsel.” Petitioner was represented by a different attorney from the Public Defender’s Office on direct
appeal, but appellate counsel did not testify at the post-conviction hearing.
- 24 -
 Lead counsel recalled that prior to the time he became lead counsel, the defense
team retained the services of clinical psychologist Dr. Fred Steinberg to evaluate Petitioner.
Case review memos from July and September 2007 listed Dr. Steinberg as a potential
defense expert and cited the discharge summary from MTMHI diagnosing Petitioner with
schizophrenia and “borderline” mental retardation as one of the working mitigation
theories. Lead counsel testified that he spoke to Dr. Steinberg many times, although he did
not recall meeting with him in person. Lead counsel testified, “my recollection was that
[Dr. Steinberg] was not - - his opinion would not help us in this case.”

In January 2008, lead counsel retained the services of Dr. Rutledge to testify during
the sentencing phase regarding her evaluation of Petitioner for Juvenile Court in 1996 and
her diagnosis of mild mental retardation. In preparing for the case, Dr. Rutledge primarily
reviewed her report and the records from MTMHI. After the trial court granted the ex parte
motion for expert services, lead counsel provided the State with a notice of intent to present
expert testimony regarding Petitioner’s mental condition at trial. Although the copy of the
notice in the Public Defender’s file had a handwritten notation that it was filed on February
5, 2008, a copy could not be found in the trial court clerk’s file. Lead counsel testified that
he intended the notice to be an attempt to communicate the defense’s position that
Petitioner was exempt from the death penalty due to intellectual disability. Lead counsel
did not have an independent recollection of the prosecutor indicating that the State might
seek an evaluation from its own expert. Lead counsel recalled moving for a directed verdict
on the death penalty on the basis that the State had not presented any evidence to contradict
Dr. Rutledge’s testimony during the sentencing phase. Lead counsel testified that one of
the reasons for this decision was the fact that the defense team could not afford to pay Dr.
Rutledge twice for her testimony. Additionally, the statute indicated that the issue could
be raised at trial and did not mandate that it be raised pretrial.6

Ultimately, the trial court denied the motion for a directed verdict because of the
lack of a pretrial motion. However, when ruling on the motion for new trial, the trial court
concluded that the timing of the motion was an issue of first impression and reserved ruling
on the intellectual disability issue. Lead counsel filed a formal written motion for a hearing
on July 17, 2008, and attached the reports from MTMHI and Dr. Rutledge, which were
consistent in diagnosing Petitioner with mild mental retardation. However, prior to the
hearing, lead counsel learned that Dr. Craddock had sent a letter to the prosecution stating
that he had erred in diagnosing Petitioner with mild mental retardation and changing his
diagnosis to borderline intellectual functioning. Lead counsel contacted Dr. Rutledge again
in August 2008 and requested the raw data from MTMHI for her to review. Dr. Rutledge
told lead counsel that she “did not see any reason to justify change of diagnosis.”

6
See T.C.A. § 39-13-203(e) (2003).
- 25 -
 In an email from November 2008 discussing scheduling Dr. Rutledge’s rebuttal
testimony in this case, lead counsel asked if Dr. Rutledge would also be willing to be
involved in another case. In that email, lead counsel stated that he wanted to “consider
some measure of adaptive behavior” for the other defendant because that was “classically
the area in which we lose on [the intellectual disability] issue” and asked Dr. Rutledge if
there was “any test or scale which might facilitate our proof of such deficits.” Lead counsel
testified that adaptive functioning was an important area to explore in any case and that he
was aware of the Adaptive Behavior Assessment System (“ABAS”) test for adaptive
deficits. Additionally, Dr. Rutledge’s response to his email referred to the Vineland
Adaptive Behavior Scales when she offered to evaluate the other defendant. However,
lead counsel never asked Dr. Rutledge to perform any adaptive behavior assessments of
Petitioner, nor did she interview Petitioner or any of his family members. However, on
cross-examination, lead counsel agreed that a diagnosis of mild mental retardation required
a finding of adaptive deficits. Lead counsel agreed that he relied on the opinions of the
experts and did not tell them what tests they needed to do.

Lead counsel testified that he did not consider filing a motion challenging the State’s
dual charging of felony murder and premeditated murder. He testified that Ms. Dwyer was
the lead prosecutor throughout the case and that he did not recall the circumstances of Gen.
Weirich becoming involved in this case. Lead counsel stated that he “never heard anything
to th[e] effect” that Gen. Weirich knew the victim, and he did not recall Gen. Weirich
disclosing that her family was close to the victim’s family at any point during the trial.
Lead counsel testified that if he had known that Mr. Weirich was co-executor of the
victim’s estate, he would have addressed that issue during his cross-examination of Mr.
Leech. Lead counsel was not aware that Mrs. Weirich attended the trial or that she was
Gen. Weirich’s mother-in-law.

Lead counsel estimated that he met with Petitioner in person approximately 20 to
30 times prior to trial to discuss the facts of the case and Petitioner’s social history. Lead
counsel’s notes from a meeting on February 8, 2008, indicated that Petitioner was
depressed and had been prescribed Cogentin and Risperdal, which lead counsel believed
were both psychotropic drugs. Lead counsel could not recall what dosages Petitioner was
taking but testified that he had the jail medical records available. On cross-examination,
lead counsel agreed that the upcoming trial could have been a cause of Petitioner’s
depression. Lead counsel testified that he did not notice anything about Petitioner’s
demeanor, behavior, or ability to communicate that would have indicated that Petitioner
was impaired by the medication and that he would have addressed the matter with the court
if he had. On redirect examination, Lead counsel agreed that he did not consult with a
medical doctor regarding Petitioner’s medication.

Lead counsel testified that he participated in the ongoing process of investigating
mitigation evidence. He believed that he met with Petitioner’s family members in their
- 26 -
homes, though he admitted he could be confusing this case with another. Lead counsel did
not recall meeting with any of Petitioner’s teachers or any of his friends and former
neighbors from the Fowler Homes neighborhood. When presented with a photograph from
the Public Defender’s file labeled “Corinio Pruitt family,” lead counsel testified that he did
not recognize any of the children in the photo but that he had “no reason to doubt that that
is his family.” Lead counsel conceded that he requested a mitigation instruction regarding
Petitioner’s prenatal exposure to drugs and alcohol even though Vivian Pruitt denied
drinking while she was pregnant, and no other witnesses testified on the issue. Lead
counsel also requested a mitigation instruction that Petitioner experienced “significant
ad[a]ptive deficits,” even though including the term “significant” when it was not in the
statute “was probably a mistake.” Lead counsel also testified that he would generally agree
with the Tennessee Supreme Court’s opinion that “little evidence” of Petitioner’s deficits
in adaptive behavior was presented.7 Lead counsel agreed that in investigating adaptive
deficits and mitigating circumstances, “all the records that are available should be
obtained.” Lead counsel also agreed that it was important “to attempt to interview anyone
that would know anything about that issue,” including family, friends and neighbors “if we
were aware of [them].” On cross-examination, lead counsel agreed that it was possible for
the jury to determine that Vivian Pruitt was not being truthful when she denied drinking
while she was pregnant with Petitioner.

Lead counsel did not recall if there was a strategic decision not to file a motion
requesting individual voir dire but testified that such a motion was in the “standard motion
packet” created by a former supervisor of the Capital Case Unit, although “it was
commonly overruled.” Lead counsel testified that he was familiar with juror questionnaires
and had used them previously with this particular trial judge and in other capital cases, so
he “probably” made “a conscious strategic decision” not to use them in this case. Lead
counsel recalled that voir dire was conducted as a group in the courtroom and that more
than one juror responded that they had heard of the defense expert, Dr. Smith, and would
not credit his testimony. Lead counsel was aware that Dr. Smith had stepped down from
his position as Shelby County Medical Examiner after he was charged with possession of
explosives and lying to investigators, a case that ultimately ended in a mistrial. Lead
counsel had not seen an episode of the television show, 48 Hours, featuring Dr. Smith’s
story and discussing his “history of lying.” On cross-examination, lead counsel agreed that
Dr. Smith had been employed by defense attorneys on numerous occasions and that as a
former medical examiner, he was in a unique position to review and critique autopsy
procedures. Dr. Smith also testified about his practice of preserving bones during an
autopsy. On redirect-examination, lead counsel testified that he was not aware of the case
of State v. Jerry Ray Davidson where a pathologist from Arkansas provided similar

7
See Pruitt, 415 S.W.3d at 204.
- 27 -
testimony for the defense.8 Lead counsel testified that he would not be surprised if there
were other experts but that he had known Dr. Smith for several years, had seen him testify
before in other cases, and had a certain rapport with him despite his legal issues.

Lead counsel did not have an independent recollection of delivering the closing
argument in this case but recognized a document he created containing notes of topics that
he wanted to discuss. He acknowledged that the notes contained the statement, “What
happened here to Lawrence Guidroz? No one cared about him.” Lead counsel did not
recall reading an article in a local newspaper just after the murder describing the high
regard in which the victim’s neighbors held him. Lead counsel did not speak to anyone
from St. Paul Catholic Church before the trial, although he did meet Mr. Leech and other
parishioners outside of the courtroom during the trial. Lead counsel recalled that Mr. Leech
told him that “they were not out for blood.”

Lead counsel testified that he did not recall a plea offer but that the State would
usually approve a plea agreement if the victim’s family did not object. Lead counsel
testified that he discussed settling the case with Petitioner many times, but Petitioner
“would have no part of it.” Lead counsel explained to Petitioner the possible defenses and
the likelihood of conviction at trial. With regard to whether Petitioner understood the
charges against him, lead counsel testified, “I think he understood it but I don’t think he
accepted it” because “his position all along . . . was that at most he was guilty of
carjacking.” Lead counsel explained that Petitioner did not believe he was guilty of murder
because he did not intend to kill the victim, even though he had several lengthy
conversations with the defense team about the elements of felony murder. During one
interview with Petitioner in September 2005, which lead counsel recorded and transcribed,
Petitioner recited from memory the legal concept of criminal responsibility for felony
murder and asked why his “trial partner” was “out on the street.” During this interview,
Petitioner admitted that he knew Courtney Johnson intended to rob somebody, and
Petitioner also admitted that he grabbed the victim and threw him to the ground, causing
the victim to hit his head on the concrete. Lead counsel explained that even though
Petitioner could recite the elements of felony murder, “I don’t believe he ever accepted
felony murder” because he “had made his mind up that he wasn’t guilty of felony murder
and that’s what he wanted.” Lead counsel testified that his advice to Petitioner was not to
testify during the guilt phase but only during the sentencing phase. However, after a
Momon hearing,9 Petitioner decided that he wanted to testify during the guilt phase of the
trial, which lead counsel recalled was “definitely unhelpful.”

8
See State v. Jerry Ray Davidson, No. M1998-00105-CCA-R3-CD, 2002 WL 15381 (Tenn. Crim.
App., at Nashville, Jan. 7, 2002), aff’d, 121 S.W.3d 600 (Tenn. 2003).
9
See Momon v. State, 18 S.W.3d 152 (Tenn. 2000).
- 28 -
 On cross-examination, lead counsel testified that the Public Defender’s file
contained copies of letters that Petitioner had sent to his mother, which included
instructions to call certain people along with phone numbers and directions on how to
access messages on an answering machine. Lead counsel agreed that the records from
MTMHI indicated that Petitioner began using marijuana at age fourteen, cocaine at age
sixteen, and methamphetamine and various pills at age twenty-two. Lead counsel agreed
that the Public Defender’s file also contained a psychological evaluation of Petitioner from
1998 in which he reported that he began selling drugs at the age of fourteen and that he
typically made a $350 weekly profit. A September 2006 discharge summary from MTMHI
indicated that Petitioner was diagnosed with schizophrenia, undifferentiated type; history
of cocaine and cannabis abuse; and borderline intellectual functioning. On redirect
examination, lead counsel read from a staff conference report from MTMHI that indicated
Petitioner’s “below average cognitive abilities” would limit his ability to assist in his
defense, though he did have “sufficient ability” to work with his attorneys, understand the
evidence, and weigh the merits of a plea offer.

Lead counsel identified a “social chronology” for Petitioner listing his juvenile and
adult arrests, psychological evaluations, periods of incarceration, and suicide attempts prior
to his arrest in this case. Lead counsel obtained the presentence reports from Petitioner’s
prior convictions, which indicated that Petitioner was in a gang. Lead counsel obtained
records from Petitioner’s employer at the time of the offense as well as Petitioner’s school
records. Lead counsel testified that he and former lead counsel presented Petitioner’s case
at a seminar put on by the National Association of Criminal Defense Lawyers where the
participants were able to consult with experienced attorneys and mitigation experts in order
to brainstorm ways to defend their cases. On redirect examination, lead counsel testified
that the seminar probably included presentations on Atkins v. Virginia and that he
purchased the AAMR manual around that time.

Co-counsel testified that he worked for the Public Defender’s Office and that he
joined the Capital Case Unit in 2007. He was assigned to Petitioner’s case as second chair
after former lead counsel left the Capital Case Unit and lead counsel became first chair.
Co-counsel agreed that his role was to assist lead counsel, who had the primary
responsibility to manage the defense team. Co-counsel testified that he participated in the
monthly case reviews with the rest of the capital defense team. On cross-examination, co-
counsel testified that this was his first capital trial. Co-counsel acknowledged that capital
defense is “constantly evolving” and that attorneys must “do the best we can at the time.”

Co-counsel first met with Petitioner in February 2007, and his notes from that
meeting indicated that Petitioner was taking Risperdal and Cogentin. Co-counsel believed
that Risperdal was “an anti-psychotic or something they prescribe for people with
schizophrenia” and that “Cogentin deals with the side effects of Risperdal.” Co-counsel
was not aware of the dosages Petitioner was receiving or why those drugs had been
- 29 -
prescribed. Co-counsel testified that the defense obtained Petitioner’s jail medical records
and that they discussed it with their experts. Co-counsel testified that he and lead counsel
discussed whether to inform the jury regarding Petitioner’s medication, but they considered
it to be “a double edge sword” because the jury might be more fearful of a defendant who
is psychotic. Co-counsel testified that Petitioner “didn’t appear crazy to me but I’m not a
doctor.” Co-counsel did not recall any discussion of retaining a psychiatrist or
neuropharmacologist. On cross-examination, co-counsel testified that he never had an
indication that Petitioner’s medication was interfering with his ability to communicate and
that he would have brought it to the attention of the trial court if he had.

When presented with a report from MTMHI that indicated that Petitioner’s “below
average cognitive abilities will limit the quality of what he contributes to his defense,” co-
counsel agreed that he experienced communication issues with Petitioner. Specifically,
co-counsel explained that he did not “know that we ever got through to him” that felony
murder was first degree murder and was death penalty eligible. On cross-examination, co-
counsel testified that Petitioner had the opportunity to plead guilty and receive a sentence
of either life or life without parole. Co-counsel agreed that he advised Petitioner with
regard to that offer and discussed possible defenses and the likelihood of conviction at trial,
but Petitioner chose not to plead guilty. Co-counsel testified he discussed the concept of
felony murder and the fact that it was death eligible with Petitioner “[m]any times.”

Co-counsel testified that he did not have any contact with Dr. Steinberg, whose work
on the case had been conducted prior to co-counsel’s joining the team. Co-counsel’s notes
from a conversation with former lead counsel in January 2007 reflected that Petitioner had
been diagnosed as schizophrenic and “borderline” intellectually disabled by MTMHI but
that former lead counsel agreed with Dr. Steinberg’s opinion that there was “nothing
wrong” with Petitioner. The notes also indicated that there was “lots of mitigation,” that
Petitioner had a bad family situation and a long juvenile record, and that the biggest
problem would be the facts of the case. Co-counsel testified that it would not “surprise”
him if Dr. Steinberg’s report was not located in the Public Defender’s Office’s files for this
case “because if we have a conversation with our doctors and it’s not going to be helpful,
we’ll often tell them to not bother writing a report.” Co-counsel did not know whether Dr.
Steinberg’s testing resulted in an I.Q. score of less than 70, stating, “All I know is I was
told that he was not helpful to us.” On cross-examination, co-counsel testified that he did
not recall if Dr. Steinberg had indicated that Petitioner was malingering.

Co-counsel testified that lead counsel was primarily responsible for contacting and
preparing Dr. Rutledge. Co-counsel did not specifically recall discussing with lead counsel
the reason for not having a pretrial hearing on the intellectual disability issue but testified
that “some of it had to do with Doctor Rutledge’s schedule.” Co-counsel also explained
that “part of it also was we had the report from [] MTMHI that was helpful and that we
were not going to press the issue because we were afraid that the State was going to fix it
- 30 -
if we did.” Co-counsel explained that by “fix it,” he meant having an expert testify that
the report was inaccurate, which is ultimately what happened during the post-trial hearing.
Co-counsel’s notes from that hearing indicated that the trial court agreed to consider
evidence of intellectual disability and deficits in adaptive behavior presented during the
mitigation phase. The defense waived the presence of Dr. Rutledge during the initial
hearing because of her illness, and the trial court agreed to bifurcate the hearing to allow
Dr. Rutledge to testify in rebuttal on a later date. Co-counsel’s notes taken during Dr.
Craddock’s testimony for the State indicated “no work done” with regard to “measures of
adaptive behavior,” which co-counsel believed meant “there’s no scale for adaptive
behavior.” Co-counsel testified that his understanding of the “clinical standard” for
adaptive deficits was “you either have deficits or you don’t” and that adaptive strengths
did not matter. With regard to whether the defense team made a strategic decision not to
investigate Petitioner’s adaptive deficits, co-counsel testified that “we did endeavor to
develop those things.” On cross-examination, co-counsel testified that only an expert could
diagnose intellectual disability and that such a diagnosis required a finding of adaptive
deficits and manifestation before the age of eighteen. On redirect examination, co-counsel
testified that the “legal standard” for intellectual disability under Tennessee’s statute
“includes not just I.Q. score but also deficits,” which was based on the “current level of
medical standards.”

With regard to the mitigation investigation, co-counsel testified that he was involved
in some of the family meetings but that lead counsel had primary responsibility for
mitigation since that had been his job when he was second chair. Co-counsel testified that
he did not accompany Ms. Stanback when she met with Petitioner’s family members in
their homes but that he met with them in the office. Co-counsel did not meet with any of
Petitioner’s teachers, friends, or former neighbors. Co-counsel’s notes from a team
meeting two months before trial indicated that “no family members will help” with
mitigation, and co-counsel explained that they were relying on Ms. Stanback “to marshal
the family” to Petitioner’s defense. Co-counsel testified that one of the possible mitigation
themes was Petitioner’s “horrendous childhood.” Co-counsel denied that there was a
strategic decision not to seek out or develop mitigating evidence. On cross-examination,
co-counsel acknowledged that some of the mitigation evidence could “cut the other way.”

Co-counsel’s notes also reflected that the defense team was considering the
possibility of having someone form the victim’s church testify that the Catholic Church is
against the death penalty. However, co-counsel explained that he did not know whether
such testimony would be admissible and that they were simply “brainstorming” possible
mitigation theories. Co-counsel acknowledged that a news report after the trial indicated
that Mr. and Mrs. Leech did not necessarily agree with Petitioner’s death sentence. On
cross-examination, co-counsel testified that he presumed from the outset that the Leeches
were against the death penalty because of their religion. Co-counsel testified that he did
not recall “how far we got” with calling a Catholic priest to testify about the Church’s
- 31 -
position but that he would not dispute the record showing that the State’s objection to such
testimony was sustained.

Co-counsel reviewed his notes from a meeting with Petitioner’s family on the
Saturday before the start of trial that included Shirley Pruitt, the widow of Petitioner’s
stepfather, Walter Pruitt. The notes reflected that Petitioner’s grades dropped in the sixth
grade after his parents split up. Both of Petitioner’s parents, as well as his grandmother,
were drinking a lot, and “everything was very dysfunctional.” Petitioner grew up moving
from place to place, and his mother was not always around. Co-counsel’s notes reflected
that there was always “some fighting going on,” including one incident in which
Petitioner’s mother shot or stabbed her boyfriend, and he ended up in the hospital;
Petitioner was twenty-four years old at the time. According to Shirley Pruitt, Petitioner
never had a job long enough to get his own apartment or be self-sufficient, and he never
had a steady girlfriend.

Co-counsel’s notes reflected that there was a second family meeting that same day
with Vivian and Antonio Pruitt. At the time of the post-conviction hearing, co-counsel did
not recall that Vivian Pruitt was Petitioner’s mother. The notes from that meeting reflected
that there was some discussion as to whether Alma Rockett or Quiana Pruitt would act as
the “family historian” during the mitigation phase. According to the notes, Petitioner’s
mother agreed that an I.Q. test of Petitioner at sixteen years old indicated that he was
“mildly mentally retarded.” Petitioner’s mother indicated that Petitioner never did
anything wrong around her, denied “early drinking,” but stated that “all boys smoked
marijuana.” The notes indicated that whenever Petitioner’s mother was arrested, he would
stay with his grandmother, who was mentally ill, and that mental illness ran in the family.
On cross-examination, co-counsel testified that “probably a lot of kids did smoke
marijuana” in the neighborhood where Petitioner grew up. With regard to whether
Petitioner’s lack of a job and lack of a stable living situation were unusual compared to his
other clients, co-counsel testified that “[p]eople who are defendants often have trouble
because of their situations, their traumatized childhoods, their adolescent development or
lack thereof I think it’s typical for the clients that I deal with.”

Co-counsel testified that most of the pretrial motions had been filed before he
became involved in the case. He did not recall if there was a specific strategic decision for
not filing motions requesting individual voir dire or the use of juror questionnaires. Co-
counsel testified that lead counsel primarily handled voir dire while co-counsel took notes.
During the State’s voir dire, co-counsel noted that the prosecutor stated that mitigating
circumstances are “something that makes it not so bad,” which co-counsel circled because
he thought it was a misstatement of the law. Co-counsel denied making a conscious
strategic decision not to object to the prosecutor’s statement. Co-counsel did not dispute
that more than one juror stated that they had heard about Dr. Smith and would not credit
his testimony. Dr. Smith had been retained as an expert witness before co-counsel became
- 32 -
involved in the case. Co-counsel was aware that Dr. Smith had resigned as the county
medical examiner after he was charged with possessing explosives and lying to
investigators, though co-counsel was not aware of the specific allegations. Co-counsel
denied seeing an episode of 48 Hours discussing Dr. Smith’s story, though he was aware
that “there was some media exposure there.” On cross-examination, co-counsel testified
that he had never heard of using juror questionnaires or individual voir dire until he started
working on capital cases.

Co-counsel testified that during the trial, lead counsel was able to lean back to confer
with Petitioner, who was seated behind counsel table. Co-counsel testified that even
though the attorneys had advised Petitioner not to testify during the guilt phase but only
during the sentencing phase, “he did exactly the opposite.” On cross-examination, co-
counsel testified that the defense planned to use remorse as a mitigating circumstance but
that “kind of required Mr. Pruitt to take the stand during the Sentencing Phase and he
decided not to.” With regard to whether Petitioner expressed remorse during his guilt phase
testimony, co-counsel recalled that Petitioner was not “the best witness for himself.”

Co-counsel did not recall when Gen. Weirich became involved in this case. Co-
counsel testified that Gen. Weirich did not inform the defense that her husband handled the
victim’s estate and that co-counsel did not learn that information until “much later.” Co-
counsel testified that he was aware that Gen. Weirich knew the victim through “her church
community” but that he did not know if “she had much personal interaction” with the
victim. Co-counsel testified that he did not think that Mr. Weirich’s prior representation
of the victim would have been important to the defense. Co-counsel testified that he was
not sure if he would have filed a motion to disqualify Gen. Weirich on that basis but that
he “would have considered anything to get either Ms. Dwyer or [Gen.] Weirich off the case
because they’re both good trial lawyers.” Co-counsel testified that he may have addressed
the issue during the cross-examination of Mr. Leech but that he did not know “what
inference that might have raised for the jury.”

During the State’s rebuttal closing argument in the guilt phase, co-counsel objected
to Gen. Weirich’s statement that she “t[ook] offense” to lead counsel’s argument that
“nobody care[d]” about the victim because he thought it was inflammatory and improperly
“put[] her opinion in front of the jury.” Co-counsel testified that he was not aware that lead
counsel was going to argue that the victim had no family and was “a little surprised that he
mentioned that at all.” Co-counsel testified that he continued to object during Gen.
Weirich’s rebuttal closing argument because he was “trying to slow her down.” In co-
counsel’s notes, he circled the term “predators” because he “thought maybe it was an
improper argument, improper way of describing my client.” However, co-counsel testified
that he “probably” made a strategic decision not to object to that argument “because I
objected a bunch and I think that at a certain point the jury holds it against you when you
interfere, and she was about to close, be done anyway so I didn’t want to stop her and have
- 33 -
her restart and get her going again.” Co-counsel explained that whenever Gen. Weirich
gave a closing argument, he would “read this chapter on prosecutorial misconduct because
she played it very close to the line.” Co-counsel testified that he did not consider filing a
motion in limine regarding improper argument, explaining that Gen. Weirich “was really
good at what she did, you know. We just had to be on our toes to catch her where we
could.”

On cross-examination, co-counsel testified that the defense team had copies of
Petitioner’s report cards from elementary school. Co-counsel testified that Petitioner had
“done really well” on some tests in the fourth and fifth grades but that “his academic
performance had dropped off precipitously around the sixth grade, maybe had a head injury
at that point.” The report cards reflected that Petitioner made the honor roll and principal’s
list in second, third, and fourth grade. Some of the handwritten comments from Petitioner’s
teachers indicated that Petitioner was “smart,” “a good learner,” “an excellent student,”
and had “great potential,” though some cautioned about his behavior and excessive
absences. On redirect examination, co-counsel testified that he had not been to Larose
Elementary and did not recall that Petitioner grew up in the adjacent Fowler Homes
neighborhood. With regard to the safety and security of the children living in that area and
whether the teachers cared for the children by providing food and clothes, co-counsel
testified that he “relied on Ms. Stanback for a lot of that information” since “[s]he knew
about the area and the culture a lot better than I ever will.”

On cross-examination, co-counsel recalled seeing Petitioner being interviewed on a
show called Gangland that aired shortly after the trial. Co-counsel was “a little taken back”
when he saw the episode so close after trial because “[i]t appeared that [Petitioner] had
done meetings with these people during my representation of him” and not told his
attorneys about it. With regard to Petitioner’s demeanor, co-counsel testified that “[h]e
seemed very well spoken and articulate on this episode.” Co-counsel testified that during
the interview, Petitioner “went into some detail” about the Lemoyne Gardens gang, or
LMG, including “how it was organized and who some of the players were.” Co-counsel
testified that defendant “knew [Petitioner] had some affiliation” with a gang, so he “wasn’t
surprised by that.” On redirect examination, co-counsel testified that he did not know when
or where the interview was filmed and that he did not know how much of the interview
was edited out of the episode that eventually aired. Co-counsel agreed that because he saw
the episode after Petitioner’s trial, it did not affect his trial strategy but that he probably
would have advised Petitioner not to participate.

Former lead counsel testified that she had worked for the Public Defender’s Office
for twenty-three years and was the lead attorney on Petitioner’s case until she left the
Capital Case Unit in December 2006. She recalled handling Petitioner’s preliminary
hearing in September 2005. In July 2006, Petitioner was evaluated by Midtown Mental
Health, who subsequently referred Petitioner to MTMHI for further evaluation because his
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competency was “questionable.” Former lead counsel testified that in her experience, it
was “rare” that Midtown would refer someone to MTMHI. She had Petitioner sign a
release so that the defense could have access to the records from MTMHI, including copies
of social histories and staff reports. Former lead counsel recalled filing an ex parte motion
requesting funds to hire Dr. Fred Steinberg to conduct an independent psychological
evaluation of Petitioner. In December 2006, she signed a certification of the time that Dr.
Steinberg spent on the case, including the time he spent drafting a forensic report. Former
lead counsel testified that even after leaving the Capital Case Unit, she was willing to assist
in Petitioner’s case and that lead counsel even asked the supervisor if she could be “third
chair” at trial, but Petitioner “said no.”

On cross-examination, former lead counsel testified that she still worked in the
Public Defender’s Office after leaving the Capital Case Unit and was available to consult
with Petitioner’s defense team. She recognized a copy of Dr. Steinberg’s report and
testified that she did not know why a copy could not be located in the Public Defender’s
Office’s file for Petitioner. She testified that she “wouldn’t have signed the certification if
the work hadn’t been done, so I would have had to have received it at least at some point
in time.” Dr. Steinberg’s report indicated that Petitioner “was noticeably medicated and
somewhat slowed in psychomotor response in the initial sessions” but that “he was more
spontaneous and normal in psychomotor response” during a later session. The report stated
that Petitioner’s I.Q. test “indicates that he is functioning within the Borderline range of
intelligence.” The report indicated that Petitioner had a “tendency to exaggerate and feign
mental illness” and that there was “corroborating data suggestive of symptom exaggeration
and malingering of psychiatric symptoms.” The report stated that further
neuropsychological testing was not necessary in light of these results. Former lead counsel
testified that she did not recall following up with Dr. Steinberg about his report but that she
would have shared the substance of her conversation with the other members of the defense
team.

Former lead counsel recognized her notes from a meeting with Petitioner in
September 2005 in which Petitioner relayed his version of the incident, including detailed
directions of how he and Courtney Johnson walked to the store. Former lead counsel also
recognized a letter she sent to Petitioner in January 2006, which stated that she was
providing Petitioner with copies of his discovery and pretrial motions that she had filed on
his behalf. Former lead counsel’s notes from April 2006 indicated that “Aunt Alma doesn’t
want us calling or coming to see her anymore.” At some point, Petitioner indicated to her
that he was not willing to accept any plea offers. Former lead counsel’s notes from a
meeting with Petitioner in December 2006 indicated that Petitioner wanted the charges
reduced to manslaughter and that she explained to him that there was no chance of that
happening and that the best offer the State was willing to make was life. The notes also
indicated that Petitioner did not want to take the stand. Former lead counsel testified that
she attended a conference with Ms. Stanback and lead counsel during which they
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developed mitigation themes for this case. Former lead counsel acknowledged that
Petitioner filed a complaint about her with the Board of Professional Responsibility and
that she wrote a response detailing the work she had done on the case.

On redirect examination, former lead counsel testified that she could not recall an
occasion where she did not get a report from an expert who had worked on one of her cases.
She testified that she would have concerns about discoverability if the report was unhelpful
to her client but denied that she would fail to put it in her file or shred it for that reason.
She testified that while she would not plan on calling such a witness to testify, she would
put the report in the file if for no other reason than to be able to show on post-conviction
that the evaluation was performed. Former lead counsel noted that she signed the
certification for Dr. Steinberg on December 22, 2006, not long before she left the case, so
she “can’t say” if the report was received after she left and “somebody else did something
with it.” However, she testified that she would have put the report in the file had she
received it so that “the people who came behind me would be able to look at it and see
what’s there.” She also testified that she was not aware of anyone in the Public Defender’s
Office removing reports from files and that doing so would be an ethical issue. She testified
that the copy of the report that was entered into evidence had underlining and handwritten
notes, but she did not recognize the handwriting. On recross-examination, former lead
counsel testified that she recalled being “a little surprised” by the results of Dr. Steinberg’s
evaluation “because it came back very different from what I had heard from Middle
Tennessee, and I was disappointed that it didn’t say the same thing.”

Jeannette Stanback testified that she worked on Petitioner’s case as a mitigation
investigator. She was present with former lead counsel and lead counsel during Petitioner’s
intake interview and took notes. Ms. Stanback gave a lay opinion that Petitioner’s behavior
was consistent with other defendants she had worked with who were assessed as having a
low I.Q. score. Ms. Stanback testified that she regularly met with Petitioner in preparation
for trial, meeting with him at the jail at least once a month if not more frequently. Ms.
Stanback testified that her initial impression of Petitioner was that he was “stoic” and
“unpenetrable” and that it took some time to get through to him. Ms. Stanback agreed that
Petitioner was prone to child-like outbursts and was easily influenced by jailhouse lawyers.
She could not recall if Petitioner was taking anti-psychotic medication.

Ms. Stanback testified that she gathered records from the jail, MTMHI, and other
places. Ms. Stanback also interviewed various witnesses and compiled a report of
Petitioner’s social history. She testified that everyone on the defense team had access to a
shared file and that they would share theories and notes during meetings. Ms. Stanback
recalled the defense team meeting with Dr. Steinberg, though she admitted that she may
have confused him with someone else.

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 Ms. Stanback testified that Petitioner grew up in South Memphis. Petitioner lived
with his mother and sister in the Clementine Apartments, a poor, high-crime neighborhood.
Petitioner sometimes lived with his aunt, Alma Rockett, where the conditions were better.
However, at the time of his arrest, Petitioner was “couch surfing” among different
residences. Ms. Stanback testified that she was familiar with the Fowler Homes
neighborhood, which in the 1980s and 1990s had a reputation as being a very volatile
community with high crime and low income and education.

C. Lay Witnesses

Gaynell Talley, a retired teacher, testified that she taught in the Memphis City
School system for thirty-five years. Much of that time, she taught third and fifth grade at
Larose Elementary School. Ms. Talley also taught a special reading program under Title
I, which she explained was a government program for students who had low test scores
and were living below the poverty line. Ms. Talley testified that 99% of the students at
Larose were on the free lunch program, and a majority lived the nearby Fowler Homes
housing project. Ms. Talley testified that the school provided a clothes closet, free school
supplies, and basic hygiene products for the children. The teachers encouraged attendance
by calling and visiting the children’s homes. The school provided a safe and nurturing
environment for the children. Ms. Talley recalled Petitioner’s name, but she did not
recognize him, and he was never assigned to one of her classes.

Sirderrick Payne testified that he grew up in the Fowler Homes housing project and
that he had been best friends with Petitioner since they were about eight or nine years old.
Mr. Payne described the neighborhood as being “rough” with a lot of violence, crime, and
drug use. On one occasion, when they were about nine or ten years old, Mr. Payne and
Petitioner were outside playing curb ball when “Marco the Beast” shot at Petitioner’s house
while Petitioner’s mother and sisters were inside. The boys hit the ground during the
shooting, then afterwards ran to the house and saw big holes in the walls and door.
Petitioner could not stop crying and “was crazy.” Mr. Payne testified that, to his
knowledge, the holes in the walls were never fixed.

Mr. Payne also described Petitioner’s home life as “rough.” Petitioner lived with
his mother, his grandmother, his two older sisters, and his two older brothers, as well as
one of his sisters’ children. Although the house had five bedrooms, Petitioner did not have
his own bedroom and often slept on the couch. Mr. Payne testified that Petitioner’s mother
and siblings were all using drugs, selling drugs, and/or engaging in prostitution. Mr. Payne
testified that Petitioner’s house was always loud and there was a lot of traffic in and out of
the house at all hours. Petitioner’s house was considered the place to “hang out, smoke,
shoot dice, [and] have sex . . . [I]t was like they don’t sleep.”

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 Mr. Payne testified that Petitioner’s mother could not control her drug addiction.
On one occasion when he was eleven years old, Petitioner’s mother offered to have sex
with Mr. Payne in exchange for drugs. Petitioner’s mother also used her welfare checks
and food stamps to buy drugs, so by the end of the month Petitioner would either come
over to Mr. Payne’s house for food or would have to steal to get food. Mr. Payne testified
that although his own mother was also a drug addict, she always made sure to feed and
clothe her children, unlike Petitioner’s mother who “ran the street to make sure she got
high.” Additionally, unlike Petitioner’s older siblings, Mr. Payne’s older siblings looked
out for him and helped to provide for him.

Mr. Payne testified that the interactions between Petitioner and his mother were
often violent. Petitioner’s mother would yell and curse at Petitioner, call him names, and
beat him with an extension cord or a belt. On one occasion, Petitioner’s mother smacked
Petitioner so hard that Mr. Payne thought she had broken his neck. Petitioner’s mother
was also violent with her boyfriends. She and her boyfriend “Buck” would get drunk or
high and start fighting most days of the week. Mr. Payne testified that it happened so often
that the Memphis Police Department stopped responding to the domestic disturbance calls.

Both Petitioner and Mr. Payne attended Larose Elementary School, which Mr.
Payne described as “fun” and a place “where you can go, really, to feel most safe at” and
where “[y]ou can eat and have food.” The situation was much different at Vance Middle
School, which was located near a different housing project. Mr. Payne testified that if they
walked through the other housing project to get to school, they risked getting “jumped.”
However, if they walked the long way around, they would not get to school on time and
either the doors would be locked or they would be written up for tardiness. Petitioner and
Mr. Payne stopped attending school, and Mr. Payne eventually transferred to a different
school because of the violence.

Mr. Payne described Petitioner as a “follower . . . [m]eaning he can’t think for
himself.” Petitioner was constantly asking Mr. Payne what to do. Petitioner was bullied
as a child because he tried to stand up for his older brother who was gay. The other children
picked on Petitioner, hit him, and stole his shoes, and Petitioner was afraid to go to school.
Mr. Payne testified that he started selling drugs around age nine or ten because he saw the
older boys doing it and buying nice things. However, Petitioner did not sell drugs because
“he didn’t know how” and did not have the “mind set” to do it. Mr. Payne gave an example
where someone switched real drugs for “fake” drugs without Petitioner noticing, and
Petitioner ended up having to refund money to the people to whom he inadvertently sold
the fake drugs. Petitioner would often lose money when trying to sell drugs, and Mr. Payne
would have to help him pay for it. Mr. Payne testified that to his knowledge, Petitioner did
not use drugs and denied that Petitioner was in a gang. Mr. Payne admitted that he was a
member of the Vice Lords and that he was incarcerated on a second-degree murder
conviction at the time of Petitioner’s trial.
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 Myron Stewart testified that he grew up in the Fowler Homes housing project about
a block away from Petitioner. Mr. Stewart testified that many of the kids who lived in
Fowler Homes stopped attending school because of the difficulty involved in walking to
Vance Middle School. Mr. Stewart testified that there were frequent gang fights and that
“[a] lot of kids was getting jumped on and chased from school, back in the day.” However,
because he played sports, Mr. Stewart “had like a pass to go through different projects.”
Mr. Stewart also had the opportunity to spend time with family in Chicago and nicer
neighborhoods in Memphis, which motivated him to do better. Mr. Stewart eventually
graduated high school and attended community college. In his career, Mr. Stewart worked
for the local jail, prison, and police department before leaving the criminal justice field
because of too many encounters with people he knew from the old neighborhood.

Mr. Stewart explained that growing up, his house was better than most in terms of
cleanliness and discipline. His mother also provided food for many of the kids, including
Petitioner. Mr. Stewart testified that Petitioner’s family was “dysfunctional” in
comparison. Petitioner’s mother had a reputation for her drinking and drug use, and there
was no one to be a father figure to Petitioner. Mr. Stewart also described the violence in
the neighborhood, including shootings and gang fights. Many of the young men who had
stopped attending Vance Middle School were selling marijuana for a man named “Jab-
Blue” because he let them smoke as much of the marijuana as they wanted.

Mr. Stewart testified that he worked in the Shelby County Jail at the time Petitioner
was incarcerated there before trial. Mr. Stewart testified that Petitioner did not seem like
the same person he knew, and he was not sure that Petitioner recognized him. Mr. Stewart
testified that Petitioner did not want to get up to eat or shower and that he seemed “[s]low
. . . like he was out of it.” Mr. Stewart testified that he had worked on the medical floor of
the jail where inmates were prescribed psychiatric drugs and that Petitioner exhibited
behavior like someone who had been prescribed a high dose of such drugs.

Talon Williams testified that he grew up in the Fowler Homes housing project and
that he met Petitioner when they played basketball as kids. Mr. Williams testified that his
mother, Doris Barker, tried to make sure that the kids in the neighborhood had clean clothes
to wear, enough food to eat, and organized social activities and outings to keep them
engaged. Petitioner participated in one of her programs and played on the neighborhood
basketball team. Although Petitioner was a good player, he would get frustrated that he
could not read the defenses and would quit a lot. Even though Petitioner wanted to be
included in things, he was not good in group settings and generally did not fit in.

Petitioner spent a lot of time at Mr. Williams’s house because his own house “wasn’t
the best place to be.” Mr. Williams testified that even among others in the housing project,
Petitioner’s family stood out for their poverty, violence, and drug use. Petitioner’s entire
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family used or sold drugs. Petitioner’s mother was always high or drunk. Petitioner’s
mother and her boyfriends would fight in the front yard “pretty regular[ly],” and “it was
kind of like a spectacle where people were drawn to watch them and laugh.” Petitioner’s
house was “dark, smelly, garbage everywhere, a lot of people in and out.” Mr. Williams
testified that you could not sit on the minimal furniture there was because it was all infested
with bed bugs. Petitioner’s house was always hot in the summer because the only air
conditioning unit was located in one of his brothers’ bedroom behind a locked door. On
one occasion, the family got evicted for failing to pay rent, and all of their belongings were
put out on the curb. The community had to come together to pay their rent so that they
could go back inside.

Mr. Williams testified that Petitioner did not have a lot of family support growing
up. Petitioner’s grandmother would stare at the television all day and mumble to herself,
or she would wander off and knock on other people’s doors. Mr. Williams testified that he
later learned that she was mentally ill. Petitioner’s brother, Tony, sold drugs and usually
kept to himself and his “crew” without paying attention to Petitioner. Petitioner’s sister,
Tapika, was “strung out on drugs” and would often leave her children for days at a time.
Petitioner’s brother, Rico, was gay and was frequently assaulted due to the homophobia in
the community. Mr. Williams often provided Petitioner with clothes off of his own back,
made sure that he ate, and would give him a haircut when he had not had one in a while.

Mr. Williams testified that he observed Petitioner using marijuana and cocaine as a
teenager. On one occasion, Petitioner was “hanging out with a group of wrong characters”
and had been using cocaine for three or four days. When Mr. Williams tried to get
Petitioner out of there, Petitioner was “just spaced out, out of his mind on drugs.” Mr.
Williams testified that Petitioner obtained money to buy drugs by robbing people and
gambling. Mr. Williams testified that Petitioner would “try to hustle crap games” but that
he was usually not successful at making money because he did not understand the game.

Mr. Williams testified that he spent time in the Shelby County Jail with Petitioner
prior to trial in this case. He noticed that Petitioner was “lethargic and incoherent and
seemed spaced out.” Mr. Williams testified that Petitioner would sit very still and that
Petitioner spoke slowly and could not complete a sentence.

Doris Barker, Mr. Williams’s mother, testified that she lived in the Fowler Homes
housing project in the 1980s and 1990s and that she knew Petitioner as “one of the children
that [she] helped to raise in our development.” She first met Petitioner when he was eight
or nine years old. She described Petitioner as “[a] real nice boy” who came to many of the
programs that she organized. Ms. Barker explained that she planned social activities for
the children in the neighborhood and tried to make sure that they did not go hungry and
that they knew they were loved. Ms. Barker received a grant called Esteem Fifty for three
years, which allowed her to provide tutors and organize excursions outside of the housing
- 40 -
project. Petitioner successfully completed that program despite lacking the required
parental involvement.

Ms. Barker testified that she was familiar with Petitioner’s family because they lived
just around the corner. Ms. Barker testified that Vivian Pruitt “wasn’t one of the best
mothers in the world” and that she tended to prioritize her own needs while the rest of her
family “just struggle[d] along.” Ms. Barker testified that Vivian “wanted to be high. She
wanted to drink, or smoke crack and have a good time. She just didn’t care.” Ms. Barker
never saw Vivian go to the grocery store or hug her children. Ms. Barker testified that
Vivian only ever called on Petitioner when she needed something. For example, whenever
Vivian found out that Petitioner had some money from dancing, she would take it from
him.

Although Petitioner “had a roof over his head,” Ms. Barker described the house as
“an open door, no locks or nothing, people just walking in and there was always some
confusion at that house.” Ms. Barker testified that there was “[a] lot of fighting and cutting
and cussing” and that Petitioner was “a child with nobody to teach him anything.” Ms.
Barker testified that she worked as a housing inspector for the Memphis Housing
Authority. On one occasion, Vivian failed her inspection because “[t]he whole house was
just torn up and in chaos. In the kitchen, dishes piled all up and people running in and out
of the house, whatever time of night, it just was bad.” A second failed inspection would
have meant eviction, but Vivian was able to pass the second inspection.

Ms. Barker testified that although everyone in the neighborhood was “poverty
stricken” and “financial prisoners,” most families “held together” while Petitioner’s family
had “no unity” and lacked any sense of caring, nurturing, or love. Petitioner’s family also
had trouble making the rent, which was usually around $30 or $35 per month. With regard
to the violence in the home, Ms. Barker testified that Vivian, her live-in boyfriend “Buck,”
and Petitioner’s siblings would fight all the time both inside and outside of the house.
There were frequent occasions where someone would get stabbed or end up with a black
eye. Ms. Barker testified that the neighbors eventually got used to the fighting and tried to
ignore it, while the children did their best to try to escape it.

Ms. Barker testified that she met Petitioner’s grandmother, Frankie Hamilton, one
day when she knocked on Ms. Barker’s door and asked for “a sandwich and some snuff.”
Ms. Hamilton told Ms. Barker that she did not have any money because her daughter,
Vivian, was taking her monthly checks. Ms. Barker continued to periodically help Ms.
Hamilton by feeding her and sending someone to the store to buy her snuff. Ms. Barker
testified that Ms. Hamilton was a “sweet person” who “really loved” Petitioner and tried
to do what she could for him. Ms. Hamilton often babysat Petitioner and his siblings’
children. However, Ms. Hamilton was in bad health and had dementia. She could not go
to the grocery store because of the concern that she might wander off.
- 41 -
 Ms. Barker was also familiar with Petitioner’s oldest sister, Tapika, who lived next
door. Ms. Barker testified that Tapika had four children, and Ms. Barker found out that
they had never been to school, had never received their immunizations, and did not know
how to eat with utensils. Tapika fed the children only “powder eggs and Ramen noodles,”
while she gave her money and food stamps to “a couple of gigolo guys.” Tapika was
frequently partying and doing whatever she wanted, and she would leave the children for
days at a time. Tapika also smoked crack cocaine and engaged in prostitution. Ms. Barker
testified that Tapika failed to provide for her children because she was simply “repeating
what she saw” from her own mother.

Ms. Barker testified that she received a letter from Petitioner about a year before the
hearing in this case, thanking her for always being there for him. Ms. Barker testified that
Petitioner’s writing in the letter made sense and was not rambling, but it was very simple,
“kind of like a kid wrote it.”

Davey Floyd testified that he knew Petitioner since they were around ten or eleven
years old and considered him to be his best friend growing up. Although Mr. Floyd lived
elsewhere, he spent time in the Fowler Homes housing project with his father, who was
known as “Jab-Blue” and was the major distributor of marijuana and cocaine in the
neighborhood. Like many of the kids in the neighborhood, Petitioner started selling drugs
for Mr. Floyd’s father when he was twelve or thirteen years old. This gave Petitioner
unlimited access to marijuana, and he smoked “a hell of a lot” it, “way more” than the other
kids. Petitioner also played dice to try to increase the money he made from selling drugs.

Mr. Floyd testified that Petitioner grew up in “a very harsh, violent, uncaring,
gruesome environment.” Mr. Floyd described Petitioner’s house as “[n]asty, un-kept,
roaches, rats, trash everywhere, smells, bullet holes in the walls.” Petitioner’s family was
“[c]razy, violent, abusive.” Mr. Floyd testified that while other families in the
neighborhood were able to “handle their responsibilities” and “provide,” he knew of no
other family “to be so abusive and so dysfunctional” as Petitioner’s family. Mr. Floyd
explained that Petitioner’s mother caused much of the dysfunction with her extreme drug
addiction, alcoholism, violence, and prostitution. Petitioner’s mother had no self-control
and neglected all of her responsibilities, including her own personal hygiene. She would
engage in fights in the courtyard, and people would laugh or look at her with disgust.

Mr. Floyd testified that Petitioner’s mother was physically and verbally abusive
toward Petitioner and did not provide for him, feed him, care for him, or tell him that she
loved him. On one occasion when Petitioner was fourteen years old, he asked her for
money to buy something to eat, and she cursed him out, shoved him against the wall by his
throat, and then made him leave. Mr. Floyd testified that Petitioner’s brother, Rico, was a

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child molester and that he sexually abused Petitioner and other teenaged boys. Rico also
engaged in prostitution in exchange for drugs and eventually died from AIDS.

Mr. Floyd testified that Petitioner was bullied as a child. Petitioner was picked on
and pushed around more than other kids because he was “a quiet, inward type person”
rather than “outgoing or witty.” In contrast, Petitioner’s brother, Tony, “had personality
and character” and was the “life of the party.” People wanted to be around Tony and often
provided him with food and money; however, Tony did not look out for Petitioner or feed
him when he was hungry. Petitioner’s sister, Quiana, also had “everything she needed”
because she dated older guys who had money. Often the only food in the house was her
personal food that she kept in her room, but she would only give Petitioner “something
small” when he was “absolutely hungry” because he had not eaten in a couple of days. Mr.
Floyd testified that he would give Petitioner food and money whenever he had any to spare.

Mr. Floyd testified that he was housed in the same pod of the Shelby County Jail as
Petitioner before trial. Every time he saw Petitioner, Mr. Floyd noticed that Petitioner was
“doped up on so much psych meds that he was out of it.” Mr. Floyd described Petitioner
as follows: “eyes rolling up in the back of his head, drooling, slobbering, coming out of his
mouth . . . slow talking, can’t think straight, not . . . responding properly . . . no mind
function.”

Shirley Jean Pruitt testified that she married Walter Pruitt in 1994. Walter was
previously married to Petitioner’s mother, Vivian Pruitt. Shirley testified that Vivian was
much younger than Walter and “they just didn’t get along.” When Walter was with Vivian,
he drank heavily and “was in and out of trouble and jail.” After Walter met Shirley, he
eventually stopped drinking and started attending church. Even though Walter was not
Petitioner’s biological father, he considered Petitioner to be his son, and Walter introduced
Petitioner and his siblings to Shirley as his children. Shirley testified that Walter tried to
maintain contact with the children after he and Vivian split up. Vivian would not interfere
with these visits if Walter brought her some money or something to drink. However, if
Walter told her that he did not have anything, Vivian would start cursing and complaining
about his relationship with Shirley, asking “why was he bringing this ‘B’ to her house.”
Vivian would even grab at Shirley through the window of Walter’s truck. Eventually,
Shirley stopped accompanying Walter on these visits because “it was just too much of a
problem.” Shirley testified that Walter only saw Petitioner “off and on.” Shirley testified
that Walter “loved [Petitioner] and cared about him, but Walter was kind of guilty, he felt
guilty about not staying there with them.”

Shirley testified that she met with Petitioner’s attorneys when they asked her to
provide some clothes for him to wear at trial. However, they did not ask her any questions
about Petitioner’s life and simply told her that they were going to raise an insanity plea
because paranoid schizophrenia ran in Petitioner’s family. Shirley identified a photograph
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from trial counsel’s file that was marked “Corinio Pruitt’s family.” Shirley testified that
the picture did not depict Petitioner and his siblings but was instead a picture of Walter’s
daughter from a prior relationship with her half-siblings, who lived in St. Louis and who
Petitioner had never met.

Marsha McMillan testified that she knew Petitioner because she was married to
Walter Pruitt’s brother. Additionally, both Ms. McMillan and Petitioner worked at
Patterson Warehouse through a temporary agency called LSI. Ms. McMillan was a
supervisor at Patterson Warehouse, and Petitioner worked there for three or four months
before his arrest in this case. Ms. McMillan testified that Petitioner would take the bus to
get to work and sometimes would arrive late. Ms. McMillan testified that Petitioner had
trouble reading instructions on paperwork for loading specific items on a pallet and often
had to work with Ms. McMillan to get it right. When putting together a display, most
employees were able to correctly follow the model, but Petitioner struggled such that Ms.
McMillan had to step in and show him how to do it. Petitioner had an accident with a
hand-jack loader where a pallet turned over, and Ms. McMillan testified that other
employees did not have similar accidents on a regular basis. Petitioner also had problems
putting items into the compactor the correct way so that it would not get jammed. Ms.
McMillan testified that to her knowledge, Petitioner was not high while he was at work,
but she only found out about Petitioner’s drug use after the fact.

D. Petitioner’s Expert Witnesses

Dr. Jonathan Joseph Lipman testified as an expert in the field of
neuropharmacology, which he explained is the science of how drugs act on the brain and
affect behavior. Dr. Lipman testified that in this case, he was asked to “opine on the
possible forensic relevance of [Petitioner’s] early adolescent cannabis use.” Dr. Lipman
reviewed records from court files, the reports of psychological evaluations of Petitioner
conducted by other experts, medical records, and collateral witness interviews provided by
post-conviction counsel. Dr. Lipman did not personally interview Petitioner but relied on
interviews conducted by other experts in this case. Dr. Lipman testified that these sources
indicated that Petitioner started smoking marijuana at age fourteen, or possibly as early as
age twelve, and that Petitioner smoked “frankly an outrageous amount” of 2 to 2.5 ounces
of marijuana per day. Dr. Lipman opined that Petitioner’s early and heavy marijuana use
“likely added to the pre-existing intellectual impairments and the cognitive dysfunction”
and that “drug abuse more likely than not interfered detrimentally in his brain’s
development during this critical period of brain maturation in his teenage years.”

Dr. Lipman testified that brain development during childhood “is an extremely
dynamic process” and that “[t]here are so many opportunities to interrupt that,” including
pre-natal development, social and environmental factors, and drug use, which can “produce
profound chemical changes in the brain” and “synergize with each other to produce a more
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than addictive impairment.” Dr. Lipman testified that Petitioner likely had pre-existing
impairments due to his pre-natal exposure to drugs and alcohol and his “chaotic”
upbringing. Petitioner’s mother had a “profound arrest history for drug and other offenses
during pregnancy,” including being arrested for shooting Petitioner’s biological father
three days before Petitioner’s birth. Petitioner’s birth records indicated that “he was not
normal at birth.” Specifically, Petitioner’s birth weight was at the “low end of normal,”
his head circumference was in the third percentile, the sagittal suture in his skull was
“gaping open,” and his left eye “bugging out and swollen.” Petitioner was then “brought
up in frankly deprived circumstances” where his “main caregiver was a paranoid
schizophrenic lady” and his mother “exchanged drugs for sex and . . . was constantly being
arrested.” Dr. Lipman explained that the “synergistic impacts” of Petitioner’s gestational
impairments and social deprivation meant that “[h]e was not a normal child when he started
to abuse marijuana at age [twelve] to [fourteen].”

Dr. Lipman described a large epidemiological study that found that early marijuana
use “produces measurable intellectual and cognitive deficits later on in life.” The study
found that certain participants “had neuropsychological impairments that could not be
attributed to anything other than early marijuana use” and that were distinct from those
who started using marijuana after their brains were more fully developed. Dr. Lipman
explained that marijuana’s impact on I.Q. scores and neuropsychological testing was “an
indication of neurotoxicity.” Dr. Lipman explained that the frontal lobe, which controls
executive functions such as planning and judgment, is the last part of the brain to develop
and is the most sensitive to damage. Dr. Lipman testified that some people might be able
to “resist some of the damage that marijuana can do at that age” if they had a “well
nourished brain that had been properly stimulated from birth with nurturing learning
experiences,” but that Petitioner’s “was not such a brain.” Dr. Lipman testified that
Petitioner’s various I.Q. scores were “consistent with a degenerative process as occurring
at or after age fourteen,” when he achieved his highest score on an intelligence test. Dr.
Lipman testified that Petitioner’s arrest record was consistent with someone with a
damaged frontal lobe, since such “individuals are impulsive and they get into a lot of
trouble.”

Dr. Lipman testified that a person with frontal lobe damage might be more likely to
develop a drug abuse habit because they “cannot apply judgement [as] clearly as a normal
person and cannot resist as easily as a normal person.” Dr. Lipman testified that one’s
social environment can also contribute to drug abuse “because modeling is where children
get their ideas of what normality is. When everyone is buying, selling and using drugs that
may seem normal to a child, not the thing to be resisted.” Dr. Lipman testified that post-
traumatic stress disorder can also “predispose someone to an appetite for tranquilizing
drugs particularly” and that they “might self-medicate with marijuana.”

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 On cross-examination, Dr. Lipman agreed that certain drugs may be associated with
violent crime and that neurotoxicity can cause violent behavior as well as other
neurological diseases. Dr. Lipman agreed that marijuana can be addictive, can be a
gateway drug, and can increase rates of juvenile crime. Dr. Lipman testified that marijuana
use can lead to mental health issues “[i]n vulnerable people” and “can provoke psychosis”
in those who may be predisposed. Dr. Lipman testified that he was not aware how common
Petitioner’s experiences were compared to others in Memphis, including the lack of
prenatal care, the stressful home environment, parental arrest records, and juvenile use of
marijuana. The State presented Dr. Lipman with a longitudinal study of twins that
suggested that the decline in I.Q. scores may not be attributable solely to marijuana
exposure but to underlying environmental factors that are common to both marijuana use
and low intellectual attainment. The State also presented Dr. Lipman with a recent meta-
analysis that suggested that “the magnitude and persistence of cognitive deficits”
associated with marijuana use may have been “overstated” in previous studies. The meta-
analysis suggested that observed deficits may be associated with “acute use or withdrawal”
and that abstinence may be associated with “restored cognitive functioning.” However,
Dr. Lipman testified that the meta-analysis only compared cross-sectional studies and
specifically excluded longitudinal studies like the one he described on direct examination,
so the results may not necessarily be contradictory.

On redirect examination, Dr. Lipman testified that the twin study suggested that
there were “multiple interacting factors” causing intellectual decline; however,
“environmental stress” would be consistent between the twins living in the same home.
The study found that “the effects of the environment was greater than the effect of the
marijuana use, although marijuana users had lower test scores relative to non-users and
showed a significant decline in crystallized intelligence between pre-adolescence and later
adolescence.” Dr. Lipman described Petitioner’s environment as follows:

His upbringing was -- I don’t want to say deprived but emotionally, socially,
educationally, intellectually and in terms of adult modeling was
impoverished, and stressful. People are being shot around him. He was
unwashed, he was not cared for, he smelled of urine according to his school
friends, his neighborhood friends. He was afraid to go home. He had a very
stressful upbringing. His responsible caregiver, his grandmother who was
apparently schizophrenic, his mother was a most unsuitable lady.

Dr. Lipman explained that gestational impairment, environmental stress, and neurotoxicity
from substances like marijuana have a “synergistic effect,” meaning that while “it might
be possible to survive any one of them[,] when they are combined the damage is more than
additive.” Dr. Lipman testified that he relied on multiple studies showing the effect of
marijuana on brain development in writing his report in this case.

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 Katy Spurlock with the Urban Child Institute testified as an expert in “identifying
and communicating information regarding early childhood brain development and
trauma.” Ms. Spurlock testified that she worked with nonprofit organizations, health care
providers, and policymakers to develop training programs and public awareness campaigns
designed to translate the scientific research on early childhood development into terms that
lay people can understand and use to change their behavior in order to improve public
health outcomes.

Ms. Spurlock testified regarding the impact of adverse childhood experiences
(“ACEs”) on childhood development and public health outcomes. An initial study by
Kaiser Permanente in the 1990s identified ten ACEs related to abuse (physical, emotional,
and sexual), neglect (physical and emotional), and household dysfunction (mental illness,
incarceration, substance abuse, death, and divorce). Subsequent studies have identified
additional ACEs, including poverty, racism, community violence, and bullying. These
studies have found that 30% of people had experienced at least one ACE, while 12-15%
had experienced four or more. Ms. Spurlock testified that the studies showed a “dose
response relationship,” meaning that the more ACEs a person has had, the worse their
health and educational outcomes are over the course of their life. Ms. Spurlock testified
that the odds for certain outcomes, such as substance abuse, mental health issues, attempted
suicide, and involvement in the criminal justice system, are “pretty astronomical” for
people with four or more ACEs.

Ms. Spurlock explained that the brain continues to grow and develop after birth and
is not fully developed until around age 25. Ms. Spurlock explained that “those early years
when the brain is not fully formed, an assault to the brain that is related to these adverse
childhood experiences and trauma, is particularly damaging when the brain is at its most
vulnerable.” Ms. Spurlock testified that if the stress and trauma associated with ACEs are
not mitigated in any way, such as with the support of a caring adult, they can cause lasting
damage to the developing brain. Ms. Spurlock explained the “cascade effect,” where a
disruption in cognitive development can lead to a “lack of success in school and
relationships and health,” which leads to risk taking, social and emotional issues, adverse
health outcomes, and eventually an early death. Ms. Spurlock explained that a child may
be able to overcome the effects of ACEs if they receive adequate family or community
support, known as “building resiliency.” However, it becomes more difficult to build
resilience as the child gets older and experiences more ACEs. Additionally, poverty
exacerbates the effects of ACEs because of the increased family stress and lack of access
to resources to address psychological needs.

On cross-examination, Ms. Spurlock testified there is a correlation between ACEs
and criminal behavior later in life. Ms. Spurlock testified that someone who does well in
their elementary school years may have someone in their life, such as a teacher, who is
“nurturing them in a way that helps them that mitigates some of those adverse childhood
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experiences for some success.” Ms. Spurlock testified that a 2014 study conducted in
Memphis showed while the percentage of people who reported having at least one ACE
was similar to the results of studies conducted nationwide, there was an increased rate of
emotional abuse and neglect, domestic violence, and sexual abuse.

Dr. Richard G. Dudley, Jr., a physician with a specialty in psychiatry, testified that
he was asked to conduct a psychiatric evaluation of Petitioner. Dr. Dudley conducted a
clinical interview with Petitioner over the course of four days, gathering background
information and evaluating Petitioner’s mental status and possible symptoms. Dr. Dudley
also reviewed various records related to Petitioner’s trial and family history, social history
interviews, and the evaluations conducted by the other experts in this case. Dr. Dudley
testified that it was his opinion that Petitioner’s psychiatric difficulties could have been
presented as mitigation evidence and also impacted his competency to stand trial.

Dr. Dudley explained that examining any family history of mental health issues was
important because of the increased genetic risk of Petitioner’s developing psychiatric issues
as well as the impact such issues would have on the environment in which Petitioner was
raised. Dr. Dudley testified that Petitioner’s family history was replete with a variety of
mental health disorders, substance abuse, seizure disorders, intellectual disorders, and
lengthy criminal records. Specifically, Petitioner’s maternal grandmother, Frankie
Hamilton – who was one of Petitioner’s primary caretakers – suffered from schizophrenia,
did not consistently comply with treatment, and was periodically hospitalized in psychiatric
institutions. Petitioner’s biological father, Terry McGirt, was assessed as having an I.Q.
score of 68 when he was sixteen years old. Petitioner’s mother, Vivian Pruitt, had a history
of drug and alcohol abuse, drank during her pregnancy with Petitioner, was incarcerated
on multiple occasions, and had a “long history of difficult relationships with considerable
domestic violence.”

Dr. Dudley gave his opinion that Petitioner “suffered from multiple psychiatric and
neuropsychiatric difficulties” related to trauma endured during childhood and adolescence,
which occurred in “the absence of the type of parenting that might have helped to mitigate
its effect.” Petitioner displayed “the classic symptoms of trauma, hypervigilance, over
reactivity, and the like, even some dissociation.” Additionally, Petitioner had “other
developmental difficulties characterized by instability” affecting “important areas of
functioning such as attachment, sense of self, mood regulation and decision making,” as
well as “intellectual and/or other cognitive difficulties.” Petitioner’s birth records indicated
“some gestational difficulties” associated with his mother’s use of alcohol during
pregnancy and lack of prenatal care, which may have contributed to the development of
some of Petitioner’s mental health issues and cognitive deficits. Dr. Dudley attributed
Petitioner’s “significant history of marijuana use and abuse” to his family history of
substance abuse, to the fact that it was common in the environment in which Petitioner
grew up, and to Petitioner’s discovery that “marijuana was helpful in calming some of the
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symptoms” previously described. As Petitioner grew older, he “struggle[d] with
depression often accompanied with suicidal ideations and some attempts, and also then
there was the emergence of psychotic symptoms characterized primarily by paranoia
delusions and periods of auditory hallucinations.”

In describing Petitioner’s history of trauma, Dr. Dudley explained that Petitioner
experienced various traumas inside the home during his early childhood as well as traumas
outside the home and in the community as a teenager. Dr. Dudley explained that Petitioner
had more difficulty acknowledging and talking about the traumas he experienced in the
home. As a child, Petitioner was exposed to both his mother’s and grandmother’s
“difficulties,” including his mother’s being stabbed when Petitioner was nine years old.
When he was five years old, Petitioner was sexually abused for a period of time by a friend
of his mother. Although his grandmother may have known, the abuse was never discussed
with Petitioner’s family and contributed to his feelings of being unsafe and not protected.
The family’s money often went toward drugs rather than caring for Petitioner and his
siblings, and Petitioner began performing in the streets to try to raise money to take care of
some basic needs. As a teenager, Petitioner was assaulted, robbed, had a gun pointed at
this head, and was in and out of juvenile detention. Petitioner’s home was shot at, and
there were frequent shootings in the neighborhood. When he was fifteen years old,
Petitioner lost a group of friends to a violent car accident. Dr. Dudley acknowledged that
there was some discrepancy as to whether Petitioner actually witnessed the accident or
whether he was in juvenile detention at the time. However, Dr. Dudley testified that
“clearly [Petitioner] knew about it and knew the details associated with it” such that it
“contribut[ed] to the larger picture of the kind of multiple traumas that he endured during
his adolescent years.”

During the clinical interviews with Dr. Dudley, Petitioner talked a lot about his
feelings of hypervigilance and concerns about harm. He described the nightmares and
intrusive thoughts he had about the violence he witnessed. He became anxious, nervous,
and depressed when describing his past traumas as well as displayed “some spacey
dissociative sorts of symptoms.” Dr. Dudley explained that Petitioner lacked any kind of
nurturing parental support to help him build resiliency and cope with the repeated exposure
to violence. Dr. Dudley testified that the situation was further complicated by Petitioner’s
intellectual and cognitive impairments as well as his marijuana use, explaining that “while
each of them have their own individual effect on a person’s ability to function, . . . they’re
also interactive with each other and . . . in many cases they exacerbate the effect of each
other and their interaction.”

Dr. Dudley testified regarding the stressors in Petitioner’s life around the time of
the offense in this case. Petitioner was released from prison in 2004 and was “trying to get
his life on track in some sort of positive way” by having a job and being able to support
himself. However, Petitioner had “difficulty sustaining employment for a variety of
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reasons,” including difficulty learning the tasks required and being able to do them
efficiently. Because Petitioner was not able to financially support himself, he moved
around living with different family members. For a time, Petitioner was in a relationship
that was “quite supportive” and contributed a sense of stability, so it was “pretty
devastating” when that relationship ended. Petitioner was struggling with depression and
the emergence of psychotic symptoms.

Dr. Dudley reviewed Petitioner’s jail medical records. Petitioner was prescribed
Risperdal and Cogentin to treat his schizophrenia and depression. Petitioner was
prescribed a dosage of 6 milligrams of Risperdal throughout the course of the trial. Dr.
Dudley testified that the “normal dosage” was 2-3 milligrams and that a 6 milligram dose
was “high enough that it would leave most people sedated.” Dr. Dudley believed that
Petitioner was taking the Risperdal in the evening, which “would leave him . . . sedated in
the morning.” People who observed Petitioner described him as acting “doped up,
sedated.” Petitioner also reported feeling sedated, unable to focus or pay attention, and not
understanding what his attorneys were telling him. Petitioner also believed that his
attorneys were working against him and trying to harm him. Dr. Dudley had “a serious
question about [Petitioner’s] competency at the trial” due to the combination of his
intellectual cognitive difficulties, psychotic symptoms and paranoia, and the sedation
caused by the medication, all of which interfered with his ability to trust and work with his
attorneys and to understand the nuances of important decisions, such as whether to testify.
Dr. Dudley testified that Petitioner was still “in a lot of physical and emotional distress at
the time that I saw him” in 2015 and 2016. Petitioner complained about his health and
various bizarre medical issues, such has leaking bodily fluids, and he expressed a belief
that the doctors were part of a larger plot to torture him. Dr. Dudley testified that
Petitioner’s “underlying intellectual cognitive difficulties were evident clinically” and
would have caused difficulty in trying to get Petitioner “to understand and demonstrate a
capacity to make some reasonable decisions.”

On cross-examination, Dr. Dudley testified that he always considers the possibility
of malingering when conducting an evaluation. In his opinion, Petitioner was not
malingering. Dr. Dudley acknowledged that he did not administer a standardized test for
malingering and that he does not do so as part of his regular practice. Dr. Dudley explained
that he instead considered “whether the symptoms . . . [are] presented in the way that we
know that they present as opposed to . . . a way that a lay person might think that mental
illness looks like[.]” Additionally, Dr. Dudley considered other sources of information to
see whether similar symptoms were being reported before the offense. Dr. Dudley believed
that “the things that [Petitioner] told me were essentially true.” However, with regard to
the incident in which several of Petitioner’s friends died in a car crash, Dr. Dudley
acknowledged that Petitioner told him that the friends had asked him to accompany them
joyriding and that he witnessed the scene of the crash even though records indicated that
Petitioner may have actually been in juvenile detention at the time. Dr. Dudley
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acknowledged that he did not interview anyone other than Petitioner and that the all of the
documents and interview summaries he reviewed were provided by the post-conviction
defense team.

Dr. Dudley testified that it was unlikely that Petitioner’s grandmother’s
schizophrenia was caused by syphilis because she had a long history of psychotic
symptoms that predated her other health problems as well as a family history of
schizophrenia. Dr. Dudley testified that Petitioner’s biological father was a juvenile at the
time he fathered Petitioner. Although Dr. Dudley testified that Petitioner’s birth records
were consistent with gestational difficulties and a lack of prenatal care, he did not know
the medical significance of the notation that Petitioner’s sagittal suture was open.

Dr. Dudley testified that when Petitioner first began to use marijuana, he discovered
that it helped alleviate some of the fear and anxiety associated with his trauma, which
rapidly lead to his abuse of marijuana. Additionally, Petitioner grew up in an environment
in which substance abuse was common, and he may have also enjoyed the feeling of being
high. Dr. Dudley testified that someone who is “psychologically pulled together” may be
more successful in addressing a substance abuse problem “compared to individuals who
suffer from a combination of substance abuse difficulties and other psychiatric difficulties
and intellectual difficulties and a mixture of things like [Petitioner].” Dr. Dudley agreed
that it was “fair to say” that a lot of people in Memphis have substance abuse problems,
especially in “neighborhoods where there’s been considerable violence, drugs, and
poverty.” Dr. Dudley agreed that Petitioner grew up in such a neighborhood. In addition
to using marijuana continuously since the age of fourteen, Petitioner also used cocaine for
a period of time when he was sixteen, but he eventually stopped using it because he found
it made him more anxious and paranoid. As an adult, Petitioner also used various pills,
like Xanax and Lortab, and also tried methamphetamine. Petitioner did not mention to Dr.
Dudley that he was in a gang, but Dr. Dudley testified that it was not uncommon for
someone who grew up in a violent neighborhood to join a gang.

Dr. Dudley testified that he would consider depression and suicidal ideation to be
unusual, but not unheard of, in jail populations. Dr. Dudley testified that Petitioner
experienced depression and suicidal ideation both while in and out of incarceration. In Dr.
Dudley’s opinion, Petitioner was incompetent at the time of trial due to the combination of
his intellectual disability, “other psychiatric difficulties,” and the high doses of anti-
psychotic medication that he was taking. Dr. Dudley agreed that the Physician’s Desk
Reference indicated that the recommended dose of Risperdal is between 4 and 8 milligrams
per day, which Dr. Dudley testified is usually given in divided doses. Dr. Dudley testified
that in his opinion, a single dose of 6 milligrams per day was a high dose and was associated
with more adverse effects. Dr. Dudley could not recall who had reported observing
Petitioner as seeming “doped up” but stated that “there were a range of people who were
observing him around the time of the trial” and that statements from people in the jail would
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be relevant to whether Petitioner was competent at the time of trial. During redirect
examination, Dr. Dudley testified that he did not see Petitioner having much interaction
with his post-conviction attorneys from where he was sitting several feet behind counsel
table.

Dr. Pamela Mary Auble testified as an expert in the field of neuropsychology, which
she explained “is the understanding of brain behavior relationships” and “evaluating people
to determine if they have mental or emotional deficits or impairments.” Dr. Auble testified
that Petitioner had never received a full neuropsychological examination before she was
asked to conduct one for this post-conviction proceeding. Dr. Auble testified that she
reviewed various records associated with this case, including the pretrial evaluations
conducted by Dr. Craddock and Dr. Steinberg, as well as the reports generated by the other
experts who testified during the post-conviction hearing. Dr. Auble tested Petitioner across
several dates in August 2016. Dr. Auble explained that the testing took multiple sessions
because Petitioner would complain of back pain, and she did not want him to become
fatigued and not put forth his best effort. Dr. Auble also met with Petitioner in 2018 to
administer two additional subtests in response to some results of the testing by the State’s
expert, Dr. Tucker Johnson. Dr. Auble testified that the battery of tests she administered
were designed “to measure in a quantitative standard fashion aspects of human behavior,”
including “tension and motor skills, memory, speech, language, spatial skills, reasoning,
problem solving, judgment, planning, . . . [and] dealing with changing situations.” Dr.
Auble explained that the tests she administered are standardized and that you can compare
a person’s performance to “normative data.”

Dr. Auble testified that it is important to test a person’s level of effort to determine
whether they are “doing their best” and not malingering. Dr. Auble administered two
stand-alone tests of effort as well as several measures of effort embedded within the other
tests she administered to Petitioner and concluded that Petitioner was not malingering. Dr.
Auble testified that both Dr. Craddock and Dr. Steinberg administered the Wechsler
Intelligence Scale, which included embedded measures of effort, but neither administered
a stand-alone test of effort. Dr. Craddock also administered a personality assessment
inventory, the results of which indicated that Petitioner “had some trouble understanding
some of the questions” because “he was either not reading it, he was responding randomly
or he was confused.” Dr. Auble explained that “when you get [results] like that you just
can’t interpret the rest of the test because he’s not answering them in a reliable fashion.”
Dr. Steinberg also administered a test in which Petitioner gave a “striking” number of
“inconsistent” responses regarding various psychological symptoms. Dr. Auble explained
that Petitioner’s responses on that test were not “reliable” because “maybe he’s not always
understanding what he’s being asked or maybe he’s responding without paying attention
to what he’s being asked.” One of the embedded tests of effort on the Wechsler Intelligence
Scale is the reliable digit span subtest, and Petitioner’s scores on this subtest when

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administered by Dr. Craddock, Dr. Steinberg, Dr. Johnson, and Dr. Auble indicated that he
was “putting forth adequate effort.”

Dr. Auble testified that she administered over 20 neuropsychological tests and
subtests to Petitioner, which revealed significant impairments in “two main areas”:
executive functioning and memory. Dr. Auble defined executive functioning as “capacities
that enable a person to engage successfully in independent purposes self-directed and self-
serving behavior.” Dr. Auble explained that impairments in executive functioning can
“show up globally because they affect all aspects of behavior,” including “approaching or
planning or carrying out mental tasks or monitoring your performance.” Dr. Auble testified
that in the neuropsychological context, memory is defined as “the ability to learn new
information.” Based on her testing, Dr. Auble found that Petitioner “was particularly
impaired on tests which required him to produce information, to engage in reasoning or
organization, or to grasp new incoming material.”

Dr. Auble testified that Petitioner had difficulty getting set for tasks and
understanding what he was supposed to do on a certain test. Dr. Auble had to repeatedly
explain the instructions to Petitioner, and she testified that Petitioner’s “inability to
understand” was “very striking.” Another issue that Dr. Auble noticed was that Petitioner’s
reasoning was “very rigid, very concrete.” Dr. Auble testified that Petitioner had difficulty
putting together different pieces of information to come up with correct answers. Dr. Auble
testified that Petitioner had difficulty shifting from one idea to another, which related to
his ability to “change [his] behavior to adapt to what’s happening out in the world.” If
Petitioner received intervening information, it negatively impacted his ability to recall the
original information. Dr. Auble testified that Petitioner “had significant trouble
remembering new information, and that was especially true when he had to generate that
information himself.” Both Dr. Craddock and Dr. Steinberg had found similar impairments
during their pretrial intelligence testing of Petitioner. Dr. Auble testified that Petitioner
scored in the fifth percentile or below on many of the tests she administered. Dr. Auble
testified that Petitioner’s memory was “worse than expected” for someone of his level of
intelligence, which is generally an indicator of a brain injury. However, Petitioner did well
in certain areas, such as paying attention adequately during the tests and performing well
on some “speeded tests.”

Dr. Auble testified that she diagnosed Petitioner as having mild intellectual
disability and mild neuro-cognitive disorder under the current DSM-5. Dr. Auble testified
that under the DSM-4TR in use during the pretrial evaluations in 2006, she would have
diagnosed Petitioner with mild mental retardation and substance induced persisting
dementia, which refers to “impairments in memory and certain other areas of functioning.”
Dr. Auble explained that neuro-cognitive disorder refers to “impairments in cognition that
represented decline from the previous level of functioning,” which was consistent with the
impairments found by both Dr. Craddock and Dr. Steinberg in 2006. In explaining how
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neuro-cognitive disorder impacts Petitioner’s ability to function, Dr. Auble testified that
Petitioner struggled to understand new things, had difficulty remembering things he was
told, had “trouble going back and forth between different ideas,” had difficulty planning or
prioritizing, was unable to retain information needed to think through a problem, was
inflexible and impulsive, and had difficulty accurately perceiving social situations. Dr.
Auble testified that “these deficits would also impair him in making life decisions or doing
complicated real life tasks.”

Dr. Auble testified that for a diagnosis of intellectual disability, an individual must
have deficits in intellectual functioning, which includes “reasoning, problem solving,
planning, abstract thinking, judgement, those kinds of things.” Dr. Auble testified that
according to the DSM-5, “individual cognitive profiles based on neuropsychological
testing . . . can help you understand intellectual abilities better than a single I.Q. score.”
An individual must also have adaptive deficits, which “are the failure to meet
developmental and socio-cultural standards for personal independence and social
responsibility.” Dr. Auble explained that adaptive deficits “limit your functioning in one
or more activities of daily life, and those can include communication, social participation,
independent living and they also have to be present across multiple environments like
home, at school, at work.” Dr. Auble testified that there are three categories of adaptive
behavior: the conceptual domain, which includes “academic abilities” as well as “abstract
thinking, planning, strategizing, solving problems, setting priorities, mental flexibility,
short term memory”; the social domain, which includes conversation and communication,
understanding of risk in social situations, social judgement, and gullibility; and the
practical domain, which includes personal care, complex daily living tasks, money
management, recreation, health care, and vocational skills. Finally, the intellectual
disability must have manifested during the developmental period. Dr. Auble testified that
Petitioner met the criteria for a diagnosis of intellectual disability.

Dr. Auble testified that there are multiple risk factors for developing intellectual
disability. Dr. Auble testified that intellectual disability is not always something a person
is born with or caused by genetics, explaining that “someone can be born with [a] perfectly
normal genetic profile but develop intellectual disability due to a lot of other factors like
an early injury or child abuse.” Based upon the records provided and interviews conducted
in this case, Dr. Auble identified many risk factors in Petitioner’s life that were either
definitely present or potentially present, including the ACEs, trauma, and marijuana use
previously discussed. Dr. Auble testified that Petitioner had both maternal and paternal
family members with significant mental illness and that Petitioner was diagnosed with
schizophrenia by MTMHI in 2006. Dr. Auble testified that mental illness is often a
comorbidity with intellectual disability and may be caused by similar factors, such as brain
injury, ACEs, or a genetic abnormality. Dr. Auble noted Dr. Lipman’s report that heavy
marijuana use is correlated with both psychosis and depression as well as deficits in
cognition and memory. Dr. Auble testified that Petitioner’s “intellectual disability and his
- 54 -
mental illness are inter-related. They serve to aggravate each other and they combine
together to limit his adaptive functioning.”

Dr. Auble testified that Petitioner met the statutory definition for intellectual
disability and that this was true at the time of the offense and at trial. Dr. Auble agreed
that she did not administer any intelligence tests to Petitioner as part of her evaluation
because she was informed by post-conviction counsel that the Tennessee Supreme Court
had already concluded that the first prong had been established. However, Dr. Auble
reviewed the intelligence tests administered by Dr. Craddock and Dr. Steinberg in 2006
and by Dr. Johnson in 2017. Dr. Auble testified that Petitioner’s mean score among the
three tests was 70.3, which in her opinion placed Petitioner within the range of the statutory
definition of intellectual disability. Dr. Auble also compared Petitioner’s scores on the
different subtests and noted that Petitioner mostly scored “within a couple of points” each
time. Dr. Auble testified that “a lot of stability over time . . . is an indication of validity,”
explaining that someone who was malingering would have difficulty remembering “what
things you did good on and what things you didn’t do so good on and to repeat that so that
you come up with similar subtest scores.” Dr. Auble testified that the one discrepancy she
noted was the Matrix Reasoning subtest, in which Petitioner received a “much higher”
score on the test administered by Dr. Johnson. Dr. Auble noted that Petitioner’s responses
were “variable” between correct and incorrect answers. Dr. Auble explained that due to
the style of the questions, it was possible to get a higher score just by guessing. Dr. Auble
decided to re-administer this subtest to Petitioner along with the Digit Span test, which
includes an embedded measure of effort and on which Petitioner’s scores had been very
stable. Petitioner scored “slightly but not significantly higher than the 2006 evaluation but
lower than in 2017” on the Matrix Reasoning test, which indicated to Dr. Auble that
Petitioner may have benefitted from some lucky guesses rather than that he had learned
how to do the test.

Dr. Auble testified that Petitioner’s impaired functioning manifested before the age
of eighteen, stating her belief that “it was a gradual onset.” Dr. Auble noted the risk factors
present around the time of Petitioner’s birth, including an incident of domestic violence
between Petitioner’s mother and biological father just prior to Petitioner’s birth, which
could have affected Petitioner and made him more vulnerable to post-traumatic stress
disorder. Dr. Auble testified that Petitioner did not start school until he was seven and a
half years old and that he repeated the first grade. Petitioner started doing well when he
“found that school was a safe place.” Dr. Auble testified that Petitioner’s good grades and
achievement test scores in elementary school could have been due to inflation, “[b]ut the
fact that [Petitioner] did as well as he did suggest[ed] that he was working hard and he . . .
liked school.” However, Petitioner’s “home life was beyond awful” with his mother’s
frequent arrests, substance abuse, and violence; his stepfather’s abandonment; his
grandmother’s serious mental illness; and the family’s extreme poverty. By middle school,
Petitioner’s grades began deteriorating because Petitioner had to walk through a dangerous
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neighborhood to get to school and because Petitioner began to use “an incredible amount”
of marijuana every day. Dr. Auble testified that when Petitioner was fourteen years old,
he received a verbal I.Q. score of 81, which was “lower than you’d expect given his
achievement testing.” Petitioner scored lower than that on the screening test conducted by
Dr. Rutledge when he was sixteen years old and lower still when he was evaluated in 2006.
Dr. Auble cited a study that found that early marijuana use could contribute to a decline in
mental ability and testified that Petitioner’s scores on the tests she administered were
consistent with that study.

Dr. Auble testified that Petitioner has deficits in adaptive behavior. Dr. Auble
testified that her neuropsychological assessment primarily addresses adaptive deficits in
the conceptual domain but would also have an impact on the social and practical domains
as well. Dr. Auble testified that in the conceptual domain, Petitioner has impairments in
“abstract thinking, planning, formulating strategies, setting priorities, mental flexibility and
short term memory. He has a concrete approach to problems and solutions.” In the social
domain, Dr. Auble testified that Petitioner “is likely to have a limited understanding of risk
in social situations because he [has] trouble processing changing situations. He is likely to
have poor social judgement.” In the practical domain, Dr. Auble testified that “while
[Petitioner] can engage in personal care, I think complex tasks like organizing child care,
managing money, . . . or making complex decisions about things like health care or working
in a skilled [v]ocation, all of those would be impaired because of the deficits that I found.”

Dr. Auble agreed that Petitioner had disabilities in the areas of reasoning, judgment,
and impulse control, thus lessening his culpability. Dr. Auble testified that the transcript
of Petitioner’s trial testimony indicated that “his understanding of the issues in his case
were very limited.” Dr. Auble testified that in reviewing the records available at the time
of trial, including the testing conducted by Dr. Craddock and Dr. Steinberg, she would have
recommended a full neuropsychological assessment of Petitioner. Dr. Auble testified that
she was able to review significantly more social history information than was provided to
either Dr. Craddock or Dr. Steinberg.

On cross-examination, Dr. Auble testified that it is not unexpected for a person’s
scores to “vary a little bit” when the same test is administered multiple times. Dr. Auble
explained that standardized tests are designed to compare a person to the “normal
population.” Dr. Auble agreed that failing to follow the manual for administering a
particular test could affect the validity of the results and make them harder to interpret.

Dr. Auble explained that a diagnosis of mild neuro-cognitive disorder under the
DSM-5 was the same as a diagnosis of substance induced persisting dementia under the
DSM-4TR and that the name had simply changed between the two editions. Dr. Auble
explained that it was common for a person with intellectual disability to have a “co-
occurring diagnosis” of mild neuro-cognitive disorder when “it is caused by an event or
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something that happens that makes the person’s abilities decline or get worse in that
developmental period.” Dr. Auble testified that she did not believe that Petitioner was born
with intellectual disability but that “it was a gradual progression,” again noting Petitioner’s
childhood risk factors, heavy marijuana use, and emotional trauma. Dr. Auble testified
that she believed that Petitioner’s use of marijuana damaged his brain; however, Dr. Auble
acknowledged that she is not an expert on neuroimaging of brains to detect such damage
and that no such imaging was conducted on Petitioner.

With regard to her conclusion that Petitioner may have benefitted from some lucky
guesses when he scored higher on Dr. Johnson’s administration of the Matrix Reasoning
subtest, Dr. Auble clarified that she was “not saying [Petitioner was] guessing through the
whole test.” Dr. Auble explained that “as the test goes on, his choices involve more
guessing” as the questions got more difficult.

Dr. Auble testified that she did not interview anyone to evaluate Petitioner’s
adaptive deficits and that her conclusions were based solely on her neuropsychological
testing. Dr. Auble testified that the risk factors she identified on direct examination “are
associated with intellectual disability and thought to contribute to the development of
intellectual disability.” In Petitioner’s case, those risk factors included Petitioner’s drug
use; his family’s extreme poverty; a family history of mental illness and cognitive
disability; his mother’s lack of prenatal care and substance use during pregnancy; domestic
violence; child abuse and neglect; a lack of appropriate caregivers and adequate stimulation
to foster his development; and a lack of early intervention or special education services
when his grades began to decline in middle school. Dr. Auble testified that many of those
factors had been present before Petitioner began heavily using marijuana and “would have
made him at least vulnerable and maybe had caused some decline already.”

Dr. Caroline Everington testified as an expert in intellectual disability and adaptive
behavior assessments. Dr. Everington testified that she is a fellow of the American
Association on Intellectual and Developmental Disabilities (“AAIDD”), which she
described as the organization that developed the official definition of intellectual disability
and that works with the American Psychiatric Association to ensure “each version of the
DSM has a congruent definition for intellectual disability.” Dr. Everington testified that
the current edition of the AAIDD’s manual defined intellectual disability as “significant
limitations in intellectual functioning and in adaptive behavior as expressed in conceptual,
social, and practical adaptive skills . . . [that] originates before age [eighteen].” Dr.
Everington testified that this definition was similar to the definition in the prior edition of
the AAIDD manual in use at the time of trial.

Dr. Everington was asked to provide an opinion regarding Petitioner’s adaptive
behavior. Dr. Everington testified that her “opinion is based upon assessments
administered to [Petitioner,] interviews with six individuals who have had contact with
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[Petitioner] in a variety of settings, and with a review of other records that were available,”
totaling over two thousand pages. Dr. Everington testified that in her opinion, Petitioner
meets the definition of intellectual disability under the criteria established by the AAIDD,
the DSM, and the Tennessee statute. All three definitions required a showing of limitations
in intellectual functioning, deficits in adaptive behavior, and manifestation during the
developmental period. Dr. Everington agreed that an assessment of adaptive behavior was
a necessary component of an intellectual disability diagnosis at the time of Petitioner’s trial
in 2008.

Dr. Everington testified that the majority of people with intellectual disability fall
into the mild range, and she described some of characteristics of mild intellectual disability
in contrast with some of the stereotypes. “It is an invisible disability,” in that most people
in this category do not have obvious physical traits indicating that they have a disability.
Mild intellectual disability is “multi factored,” in that there may not be one specific cause
that can be identified, like a genetic disorder. Mild intellectual disability is “[n]ot
necessarily comprehensive,” in that a person “can function quite well in some settings” and
may only need “intermittent” or “less intrusive” support. However, while “the differences
are much more subtle than in more severe disabilities,” mild intellectual disability “actually
affects many thing[s] that the person does across many roles” and “does affect functioning
in adaptation through their lifetime.” Intellectual disability “really affects learning,” and
people in the mild range have “a capacity to learn many things but they have a great deal
of difficulty remembering learned information and even more difficulty applying the
information to new settings.” People with intellectual disability “benefit the most from
structure and systematic instruction” but may have difficulty paying attention and staying
focused, may miss important details, may have “a deficient knowledge base to draw from”
when making decisions, and may have difficulty with certain executive functions like
problem solving and “flexible thinking.” Social characteristics of people with intellectual
disability include impaired social judgment, suggestibility, gullibility, and naivety.
Because people in the mild range “understand that they have deficits relative to other
people, . . . there is a strong desire to please and to fit in.” People with intellectual disability
are overly trusting of others, are not attuned to social cues and nuances, and might be
described by a lay person “as being more child like” in their approach to social situations.
People with intellectual disability may have an “inability to perceive consequences and
learn from mistakes,” which leads to “repeating the same thing over and over again.”
However, Dr. Everington testified that limitations coexist with strengths and that a person
with mild intellectual disability is not expected to be “uniformly low in all activities and
human capabilities.” Dr. Everington testified that people with mild intellectual disability
need support, such as reminders, explanations, assistance with “complex activities of daily
living,” and assistance with developing “coping skills and problem solving” in stressful
situations. Dr. Everington testified that “[a] benefactor is someone that does provide
supportive assistance,” but Petitioner did not have such a person in his life. People with
intellectual disability may be able to graduate from high school or obtain a GED with
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“repeated instruction assistance,” though the drop-out rate is “significantly higher.” People
with intellectual disability may also learn vocational skills and work habits with ongoing
support.10

Dr. Everington testified that adaptive behavior is defined as “the collection of
conceptual, social, and practical skills that have been learned by people in order to function
in their everyday lives” and as the “degree to which an individual meets community
standards for independent functioning and social responsibility.” Dr. Everington testified
that it is important to assess a person’s typical, rather than maximum, level of performance.
Dr. Everington testified that both the DSM-5 and the AAIDD manual require significant
deficits in at least one of three domains: conceptual, social, and practical. Dr. Everington
testified that although people with intellectual disability may have some strengths, the
focus of the assessment is on their deficits since that is part of the definition. Dr.
Everington testified that while the DSM-5 requires adaptive deficits to be “directly related
to intellectual impairments,” the position of the AAIDD is that it is “impossible” to show
a causal relationship rather than just a correlation between the two.

According to Dr. Everington, the professional consensus on adaptive assessments is
that it is important to use multiple informants who have known the individual over time
and in different settings, preferably from the same socio-cultural background. Dr.
Everington testified that convergent validity is determined by using as many sources as
possible and giving each one the appropriate weight. Dr. Everington testified that academic
functioning is given less weight than the actual application of those skills. Dr. Everington
explained that an assessment of adaptive behavior looks at performance rather than
potential, explaining that “someone telling you that they can do something and actually
doing it in a setting are very different because a setting is very complicated very frequently
and requires a different level of conception and choice making and so forth.” Dr.
Everington testified that self-report is given very little weight and “should be avoided when
possible or only used in a corroborative way” because people with intellectual disability
“are notoriously poor historians on their own behavior.” Dr. Everington testified that a
person’s adaptive deficits in a community setting are given more weight than those in a
restrictive prison setting.

Dr. Everington testified that the AAIDD manual requires the use of standardized
tests of adaptive behavior whenever possible “because they provide a reference for the
individual skills in relation to the expectations for the culture and age groups.” In this case,
Dr. Everington used the Adaptive Behavior Assessment System, Third Edition (“ABAS”),

10
The transcript indicates that a recording malfunction resulted in approximately 15 pages of
indiscernible text. From the PowerPoint presentation that was admitted as an exhibit to Dr. Everington’s
testimony, it appears that the missing testimony addressed additional capabilities of people diagnosed with
mild intellectual disability, dual diagnosis with psychiatric disorders, and various family and environmental
risk factors.
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which is usually administered to a single informant to determine a person’s “current
behavior in the community.” However, Dr. Everington testified that Atkins cases require
a nonstandard administration because of the need to conduct a “retrospective assessment”
of a person who may have been incarcerated for a long period of time. Dr. Everington
testified that “a nonstandard administration can give some important information” but
should not be relied upon as the “only piece of information.” Dr. Everington explained
that the results of the assessment should be compared with other sources of information,
such as interviews and records, in order to determine validity.

In this case, Dr. Everington administered the ABAS to three informants: Alma
Rockett, Petitioner’s aunt; Michael Rockett, Petitioner’s cousin; and Marsha McMillan,
Petitioner’s family member and work supervisor. Dr. Everington testified that Michael
Rockett was the primary informant and that Alma Rockett “contributed a few things.”
However, because they were unable to answer questions about Petitioner’s behavior in a
work setting, Dr. Everington conducted a follow-up interview with Ms. McMillan. Dr.
Everington testified that while administering the rating scale to these informants, “a lot of
the interview was general discussion of their memories and recollections of [Petitioner] at
different points in his life and their memories and recollections of . . . skills that he could
and couldn’t do,” which provided “helpful corroborative information.” Dr. Everington
testified that she used Petitioner’s age at the time he was initially incarcerated in this case
to determine his score because that was the last time he lived in the community. Petitioner
scored extremely low, less than the first percentile, across all domains.

Dr. Everington also relied on a plethora of social history interviews, both those she
conducted in person and summaries provided by post-conviction counsel. Dr. Everington
testified that she focused on how long the person knew Petitioner and in what context rather
than on the person’s background and criminal record. Dr. Everington testified that she also
took into account an informant’s potential bias and explained that it was important to look
at other sources of information besides family members. Dr. Everington testified that the
in-person interviews allowed her to develop a rapport with the informant and assess their
body language, which wouldn’t be possible with a phone interview. Dr. Everington
interviewed friends and family members who knew Petitioner as a child and as an adult.
Additionally, post-conviction counsel provided summaries of “extensive interviews that
had a lot of detail.” Dr. Everington testified that “there was a lot of continuity” among the
various interviews, which contributed to their validity. Dr. Everington acknowledged that
many of the informants were Petitioner’s peers from the South Memphis community,
including other impoverished young black men who perhaps used drugs. Dr. Everington
testified that “within that community [Petitioner] stands out as being different.”

Dr. Everington testified regarding some examples of Petitioner’s deficits in the
conceptual domain as relayed by various informants, noting that each example “by itself
would not be a problem but you’re looking at a collection of deficits here.” Petitioner could
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follow simple directions but had difficulty following directions with two or more steps.
One informant described an incident where Petitioner was told not to use a saw because he
might cut himself, but Petitioner got the saw and did cut himself. Petitioner had difficulty
with communication, could not answer questions that required careful thought or opinion,
could not hold an intelligent conversation, and sometimes stared off into space. Petitioner
did not pay bills, did not have a bank account or credit cards, and did not save or budget
his money. Petitioner’s former girlfriend reported that she frequently gave Petitioner
money because he spent all of his on marijuana. A childhood friend reported that Petitioner
was unable “to provide for himself on the street.” In his job at Patterson Warehouse,
Petitioner had difficulty cutting cardboard boxes to the correct measurement, matching
serial numbers when unloading pallets, and putting the correct number of items in boxes.
Petitioner needed assistance filling out job applications, and he got the job at Patterson
Warehouse through either his mother or Ms. McMillan. Petitioner could not pass the GED.
With regard to self-direction, Petitioner had difficulty concentrating, arriving places on
time, and completing tasks efficiently, often quitting or becoming discouraged if a task was
too hard. Petitioner had difficulty resisting pressure from others to do things that might
endanger him and was susceptible to suggestion. Petitioner was often taken advantage of
by others, both as a child and as an adult, even when told not to trust certain people.
Petitioner did not manage his time well and spent “enormous amounts of time playing on
the computer.” In summary, Dr. Everington testified that Petitioner had “significant
deficits in the application of functional academics, communication[,] and self-direction.
He has some strengths in academics . . . , but the problem is application of those in a real
life setting.”

Dr. Everington testified regarding some examples of Petitioner’s deficits in the
social domain as relayed by various informants. Petitioner had some basic social
communication skills, such as greeting others and being friendly. However, Petitioner
lacked social judgment and failed to avoid friends or social settings that might be
dangerous, even though it was important to be careful about who you associated with in
the Fowler Homes neighborhood. Several informants stated that Petitioner had no friends
other than his cousins while growing up. Petitioner could identify basic emotions like
happy and sad, which a child can do, but had difficulty identifying more complicated
emotions or talking about his feelings. Petitioner had difficulty understanding the
perspective of other people and would not refrain from saying or doing something that
might embarrass someone. Petitioner did childish and risky things in the work setting to
gain attention. Petitioner was easily tricked and manipulated by other people, often falling
prey to scams as both a child and an adult. Petitioner was described as more of a follower
than a leader. Petitioner had difficulty following rules and obeying laws. Petitioner did
have good leisure skills, such as being able to play card games like Spades, playing video
games, enjoying music, and being a good dancer. However, Petitioner sometimes had
trouble understanding certain games. Petitioner did not display age-appropriate skills, like
organizing an activity for others or participating in team sports. Petitioner had difficulty
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with social problem solving due to his limited intellectual resources and had difficulty
avoiding the triggers for criminal offenses. In summary, Dr. Everington testified that
Petitioner “had significant deficits in all aspects of the domain,” particularly “in
understanding social situations [and] appropriately conforming his behavior[.]”

Dr. Everington testified that when most people think of adaptive deficits, they think
of deficits in the practical domain, such as the inability to live independently; however,
most people with mild intellectual disability “do really well comparatively in this area.”
Dr. Everington testified regarding some examples of Petitioner’s deficits in the practical
domain as relayed by various informants. Petitioner did not have a driver’s license, and
there were no reports of Petitioner driving on a regular basis. Petitioner primarily walked
or took the bus, but he had difficulty with the bus schedules and often got lost or arrived
late. Petitioner did not shop for his own clothes, go for haircuts, or go to the grocery store.
Petitioner could not use a map or an ATM, and he did not use community resources like
the post office or library. Petitioner could use a microwave and make simple foods that
did not require cooking. Petitioner did not wash his own clothing or help clean the house.
Petitioner had to be specifically told to perform simple household tasks, like taking out the
trash. Petitioner did not attend to his health care needs by going to the doctor or drug store
and had to be reminded to take medication. Petitioner did not always dress appropriately
for the weather. Several informants reported that Petitioner had poor hygiene, such as
wearing urine-soaked clothes as a child even after other children made fun of him.
Petitioner never sustained full-time employment for any length of time, and those jobs he
did have were obtained through family members. Petitioner was able to perform menial
tasks with supervision but had difficulty with more complex tasks. Petitioner rushed
through tasks, did not seek help if he had difficulty, talked to himself and others rather than
working quietly, needed reminders to follow the daily schedule, and did not check to see if
his work needed improvement. Dr. Everington stated that it was significant that Petitioner
had never lived independently or contributed to the support of others. One informant said,
“I know a lot of people who have been locked up who could make it on their own but
[Petitioner] wasn’t like that,” and another reported that Petitioner “had a hard time
functioning in the world.” Dr. Everington explained that “there was some of this notion
among the people that [Petitioner] really had some deficits that would prevent him from
totally being independent.” Dr. Everington testified that Petitioner had significant deficits
in the practical domain.

Dr. Everington testified that she administered some academic assessments to
Petitioner for additional information about his conceptual skills. Dr. Everington explained
that while such information is helpful, the practical application of those skills in a
community setting was more important. Additionally, Dr. Everington explained that
results of such tests should be interpreted carefully because Petitioner has “been going to
school every day, been doing academic skills” while he was incarcerated, which would
improve his academic skills. Moreover, the tests demonstrate Petitioner’s current abilities
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rather than his functioning at the time of the offense. Dr. Everington testified that Petitioner
did “well,” with scores in the average and below average range for reading, spelling, and
math, which was more advanced than the majority of people who have an intellectual
disability. However, Dr. Everington testified that these results did not preclude finding a
deficit in the conceptual domain. Dr. Everington testified that Petitioner’s scores on the
achievement tests administered by Dr. Craddock and Dr. Steinberg were “more in line with
expectations” for “somebody functioning in this I.Q. range.” Petitioner also scored within
the range of someone with an intellectual disability on a test of written and spoken
language, which was similar to the results found by Dr. Steinberg. Dr. Everington
explained that while Petitioner has learned some vocabulary through his experiences,
particularly medical vocabulary, his understanding of analogies, word similarities, and
opposites is “severely deficient in comparison to other adults.” Dr. Everington testified
that Petitioner’s “real understanding of language and his ability to comprehend anything
complex . . . is lacking.” Dr. Everington administered the Independent Living Scales
(“ILS”), which is a test designed to gather information about what someone knows about
certain tasks, like managing money, maintaining a home, transportation, health, and safety.
Dr. Everington testified that Petitioner scored within the range for a person with intellectual
disability. Dr. Everington explained that because of the difference between knowing what
to do and actually doing it, she gave the results of this test very little weight.

With regard to evidence of manifestation during the developmental period, Dr.
Everington testified that several informants who knew Petitioner during childhood reported
that Petitioner was “different and . . . ha[d] difficulty in learning and that there’s some issue
with mental capacity.” Dr. Everington noted that although Petitioner repeated first grade,
he subsequently made passing grades until middle school. Petitioner had variable TCAP
scores, although he did achieve some high scores above the ninetieth percentile. However,
in seventh grade, Petitioner’s “grades fell off and other problems emerged at that point.”
Petitioner was socially promoted to the eighth grade despite failing grades and low TCAP
scores. Dr. Everington noted that she had some concerns with the validity of the school
records given that several informants reported “questionable testing administration
practices” and cheating. Additionally, Dr. Everington noted that Petitioner attended a Title
I school in a high poverty area, so the grade expectations may have been different. Dr.
Everington testified that Petitioner “basically stopped attending” school in seventh grade,
which was around the same time that Petitioner began to heavily use marijuana.

On cross-examination, Dr. Everington denied that the AAIDD was an advocacy
group and stated that “[i]t is a professional organization that serves the profession of a wide
variety of people that work in this area.” Dr. Everington authored two chapters in the
AAIDD’s 2015 book regarding intellectual disability assessment in death penalty cases.
As on direct, Dr. Everington testified that the AAIDD had taken issue with the statement
in the DSM-5 that adaptive deficits must “directly relate” to intellectual functioning. Dr.
Everington testified that both definitions state that intellectual deficits are “associated with”
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or “accompanied by” adaptive deficits, but the position of the AAIDD was that “one
doesn’t cause the other” and that “[e]ach are assessed separately[.]” Dr. Everington denied
that more people would meet the definition of intellectual disability under the AAIDD
criteria than under the DSM-5 criteria, explaining that “the definitions are virtually
identical. That sentence occurs at a different point in the discussion of that definition in
the DSM. It is not in the definition itself.”

Dr. Everington agreed that some of the quotes used in her presentation came from
interview summaries provided by post-conviction counsel, which were “fairly detailed but
they weren’t verbatim[.]” Dr. Everington acknowledged that people can lie during
interviews, but she testified that the consistency of the interviews led her to believe that
they were valid and not rehearsed. Dr. Everington testified that she focused on objective
examples of observed behavior over subjective opinions and that she would corroborate
the information by interviewing multiple people and looking at additional sources of
information. Dr. Everington testified that she always has concerns about potential bias
when interviewing family members, so she determines an informant’s credibility based
upon whether they provide detailed information and examples and whether that
information is consistent with other information she has. Dr. Everington did not know
whether the people she interviewed had been told that their responses could help Petitioner
avoid the death penalty, and she did not know how that might influence their responses.

Dr. Everington testified that standardized adaptive behavior assessments, such as
the ABAS and others, are “imperfect in an Atkins kind of situation because of the
retrospective nature of it.” Dr. Everington testified that in many cases, standardized tests
are unable to be used, so greater reliance is placed on the interviews. Dr. Everington agreed
that under the protocols for the ABAS, if an informant cannot answer three or more
questions in a section, then the score for that section is not valid. Dr. Everington explained
that “within the Atkins hearings and so forth people tend to use adaptive scales more loosely
because of this problem” with finding an informant who can complete the entire rating
scale. Dr. Everington testified that she does not rely exclusively on the test but that it can
give a piece of information regarding the person’s functioning across a “wide variety” of
areas even if the score is not compared to the norm. Dr. Everington testified that in this
case, her report included a comparison of the Petitioner’s ABAS score to the norm with “a
caveat” regarding “the retrospective testing and the alternative use of it,” explaining that
she was “very straight-forward” with the “nonstandard administration” of the test. Dr.
Everington testified that the ABAS manual states that it can be used in a “clinical format”
to gather information about the various skills assessed on the test, which she testified is
what she did in this case. Dr. Everington testified that interviewing informants together
and recording their answers on the same score sheet was “a nonstandard use of the test.”
Dr. Everington testified that Michael Rockett was the primary informant and that she
believed that she noted which responses came from Alma Rockett and Marsha McMillan.
Dr. Everington testified that if Michael and Alma Rockett provided different responses to
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the same question, she would use her judgment based on “who could give me an example”
of the particular behavior in order to give “some indication that the rating that they were
giving was accurate.” Dr. Everington testified that Alma Rockett was “not the best”
informant and only provided one comment on the ABAS score sheet, although she did
provide more information during an open-ended interview.

Dr. Everington testified that she followed the standardized testing protocol when
she administered the ILS to Petitioner. Dr. Everington agreed that the ILS is normed to the
general population rather than to the community in which Petitioner was raised. Dr.
Everington scored Petitioner’s response as incorrect when he could not remember his
telephone number from prior to his incarceration and, after being asked a couple of times,
gave his brother’s number without the area code. Dr. Everington conceded that she did not
know if Petitioner had a telephone but stated that he always lived with someone who did
have a telephone. Petitioner was unable to answer questions about social security benefits,
filing income tax returns, or the purpose of a will, even though he may not have had any
personal experience with those things. Dr. Everington scored Petitioner’s response that
you could get checks or money orders “from the check-cashing place” as incorrect, even
though it may have been possible to do so in Petitioner’s community. Dr. Everington
agreed that she could not conclude whether Petitioner’s incorrect responses were the result
of an intellectual disability or the environment in which he was raised. Dr. Everington
testified that the ILS was “just a piece of information. It doesn’t really tell you . . . how
[Petitioner] used that information that he had.”

Dr. Everington explained that while standardized rating scales are normed based on
the general population, it was important to have the rating scale completed by someone
from the same community in order to get “their viewpoint in the community.” Dr.
Everington explained that interviews are also important to determine if “the people in
environment saw this person was functioning differently than other people within the
environment.” Dr. Everington obtained most of her information about the community from
her interviews and from the materials provided by post-conviction counsel rather than from
independent research. Dr. Everington testified that Petitioner grew up in a “high poverty,”
“chaotic,” and “somewhat violent environment.” Dr. Everington testified that several of
the interviews indicated that “everyone” in the Fowler Homes neighborhood smoked
marijuana, but she did not know how much they consumed in comparison to Petitioner.
Dr. Everington testified that she did not ask the informants about selling drugs because of
the difficulty in getting information about that topic. Dr. Everington testified that she did
not “know how successful [Petitioner] was” at selling drugs other than comments that he
was “not a good criminal” and “put himself in situations where he was easily caught.” Dr.
Everington testified that although Petitioner was in a gang, he was not very “accomplished”
within the gang, especially in comparison to his brother, “who apparently functioned much
better.” Dr. Everington testified that Petitioner’s criminal record evidenced adaptive

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deficits both in terms of a failure to obey rules and laws as well as “[i]n terms of problem-
solving, making choices, making kind of rational solutions to his problems.”

Dr. Everington denied that mental illness could underlie both Petitioner’s low I.Q.
scores and his adaptive deficits given the evidence of a cognitive disability “throughout his
lifetime.” Dr. Everington denied that Petitioner’s adaptive deficits were directly related to
the fact that he dropped out of school. Dr. Everington testified that while a lack of school
attendance would affect academic skills, it “would not affect learning across the board in
all areas” the way that intellectual disability does. Dr. Everington testified that while
Petitioner’s adaptive deficits were “to a certain degree” related to his being neglected as a
child, “there are other people in that same environment who do not display that degree of
deficits.” Dr. Everington conceded that she did not interview Petitioner’s surviving
siblings, who were raised in the same home environment. Dr. Everington testified that she
did not interview Vivian Pruitt, Petitioner’s mother, because she was deceased.

Dr. Everington testified that substance abuse could be an underlying cause of
Petitioner’s low I.Q. scores and adaptive deficits in that “damage to the brain . . . can cause
problems in thinking and cognitive issues.” Dr. Everington testified that based on the
information she had, Petitioner “likely had some deficits in childhood” that were “made
worse . . . through the heavy ingestion of marijuana during that critical developmental time
where his brain was still developing.” When the State asked whether the various examples
of adaptive deficits mentioned during Dr. Everington’s direct testimony could have been
the direct result of Petitioner’s “incredibly high marijuana usage on a daily basis,” Dr.
Everington responded that she considered the effect of marijuana on Petitioner’s overall
functioning but not whether it caused any specific behavior. Dr. Everington testified that
the examples she gave were consistent with somebody who had a cognitive disability,
“which is likely related to the marijuana usage.” With regard to certain reported deficits
in communication (unable to hold an intelligent conversation, staring off, not listening,
etc.) and work (difficulties with measurements and counting), Dr. Everington conceded
that she did not know whether Petitioner was under the influence during those times
described by the informants. Dr. Everington testified that while she was aware of studies
showing the long-term effects of marijuana on the developing brain, she was not aware of
any research on the short-term effects of marijuana intoxication on adaptive behavior.

Dr. Everington testified that the individual examples of behavior she discussed on
direct examination were simply “indicators” of adaptive deficits. For example, Petitioner’s
failure to tell people where he was going was an indicator of responsibility, his failure to
limit his time playing on the computer was an indicator of time management, and his failure
to clean his fingernails was an indicator of hygiene. Dr. Everington testified that she was
“looking at the totality of skills” rather than each one in isolation. Dr. Everington explained
that while adaptive strengths may be noted, the focus of an evaluation is on whether the

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person has deficits that effect their “independent living” and “successful social adaptation”
because the definition of intellectual disability requires a showing of adaptive deficits.

The State presented Dr. Everington with Petitioner’s letter to his mother in which
he gave directions for checking his girlfriend’s voice messages and asked whether that
contradicted Dr. Everington’s finding that Petitioner had a deficit with regard to giving
directions involving multiple steps. Dr. Everington responded that she had not previously
seen the letter and that she did not know the context in which the letter was written, whether
someone helped Petitioner write it, or whether he was copying something.

With regard to the fact that Petitioner did not pay bills and did not have a bank
account or credit cards, Dr. Everington testified that “[t]hose are skills that are typically
displayed by . . . adults,” even though Petitioner had spent the majority of his adulthood
incarcerated. Dr. Everington also considered the use of an ATM to be “very common” for
adults both in Petitioner’s community and in the general population, even though Petitioner
did not have a bank account. With regard to whether Petitioner’s difficulties providing for
himself were considered a deficit within an impoverished community, Dr. Everington
noted that the person who reported lending Petitioner money “was in the same community
and was able to function more successfully than [Petitioner] . . . in terms of hustling on the
streets.” The State asked whether it was common for inmates to spend all of their
commissary money and have to borrow from others, and Dr. Everington responded that
many of the inmates with whom she had worked over the years “actually are able to tell
you to the penny what they’ve got, and they tell you how much soap costs and they tell you
how much shampoo is, and they do budget . . . within the commissary setting because those
little items are so important.” Dr. Everington agreed that she did not know how much
money Petitioner had in his commissary account when he spent it all at once.

Dr. Everington testified that Petitioner had difficulty maintaining full-time
employment, which she described as “enough to support yourself independently,” though
she was not aware of the unemployment rate for Shelby County. Dr. Everington denied
that Petitioner’s difficulties in maintaining employment or obtaining a GED were due to a
lack of interest. Petitioner had mentioned that his goal was to obtain his GED, and the
records indicated that he had completed a food safety program and a six-week hospitality
and culinary arts program while incarcerated on a prior robbery charge. Petitioner “was
concerned about not having enough money and wanting to work,” and he was pressured to
get a job while he was living with Alma Rockett. Ms. McMillan reported that Petitioner
did a good job cleaning a house while she was with him, and Dr. Everington explained that
Petitioner “would probably be able to do a very menial job like that.” Additionally,
Petitioner worked for a period of time at Patterson Warehouse, though Dr. Everington did
not recall how long Petitioner had that job. Dr. Everington agreed that Ms. McMillan was
the only source of her information about Petitioner’s behavior in a work setting even
though Petitioner’s girlfriend also worked with him at Patterson Warehouse. With regard
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to the fact that Petitioner habitually arrived late to work on certain days, Dr. Everington
explained that “people with intellectual disabilities have difficulty with temporal kinds of
things[, w]ith being on time, with organizing their life.” Ms. McMillan also “observed
quite a number of things about [Petitioner’s] work habits and difficulties that he had . . . in
the work setting, which are consistent with somebody with an intellectual disability in
terms of following directions” and other “work habits that would enable you to be
successful.” Dr. Everington did not know if Petitioner was using marijuana before going
to work or how that would have affected his performance on the job. Although there were
various explanations for why Petitioner lost his job at Patterson Warehouse – either due to
a fight over a girl, abuse of break time, or an argument with a supervisor – Dr. Everington
considered it an example of “difficulty in social problem-solving” in that it demonstrated
“not really understanding social protocol and so forth . . . in a work setting.”

Dr. Everington testified that Petitioner was described as more of a follower than a
leader and explained that people with intellectual disability tend to “look to other people
for cues and assistance with things and tend to be overly reliant on other people.” Dr.
Everington testified that there were several examples of Petitioner being taken advantage
of and tricked, both as an adult and as a child, even after he was warned not to trust certain
people. Dr. Everington relayed one example where Petitioner was performing on Beale
Street and other children joined him with the promise to split their money, but then they
cheated Petitioner out of his fair share. Dr. Everington testified that Petitioner was often
“the fall partner for his peers who would hatch a plan to steal things” and then abandon
Petitioner. Dr. Everington testified that this happened repeatedly, but Petitioner “never
learned. He’d keep doing it. He was a pushover for them.” Dr. Everington gave another
example of a woman who took advantage of Petitioner while he was in prison even though
a family member had warned him not to give her any money. Dr. Everington agreed that
she did not know how much money Petitioner gave the woman but explained that she was
“looking at [Petitioner’s] being taken advantage of and not understanding the motives of
other people” regardless of the amount of money risked.

Dr. Everington agreed that Petitioner suffered from severe neglect during his
childhood. The State asked whether Petitioner’s attending school in urine-soaked clothes
could have been due to a lack of adult support at home. Dr. Everington explained that she
considered it an example of an adaptive deficit because Petitioner “was made fun of by the
other kids and continued to do that,” whereas “someone else, likely, would have found a
way to get clean clothes.” Dr. Everington explained that this showed Petitioner’s lack of
problem-solving skills and a lack of awareness about his appearance even if he did not have
access to an abundance of clothing. Dr. Everington noted that Petitioner’s brother was
reported as dressing in clean clothes, though he was older than Petitioner. Dr. Everington
also noted that it was unusual for someone in elementary school to be urinating in their
clothing. Dr. Everinton testified that Petitioner was also reported as having difficulty with
making friends during this same period.
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 As on direct examination, Dr. Everington testified that there were no reports of
Petitioner driving as a regular mode of transportation. Dr. Everington agreed that Petitioner
did not own a car but testified that “[i]t is unusual for someone in his age group to not drive
or to want to have a car.” Dr. Everington testified that in her experience “with people from
impoverished neighborhoods in these cases, almost all of them drive and almost all of them
have a car,” even if they did not have a driver’s license. Dr. Everington acknowledged that
the trial testimony indicated that Petitioner drove the victim’s car away from the scene and
that he had been charged with car thefts as a juvenile. Dr. Everington clarified that “driving
and getting around using a car are two different things” and that Petitioner “could probably
drive.” Dr. Everington testified that Petitioner walked to most places in his community
and that he rode the bus to work, though he had difficulty with the bus schedules and
sometimes got lost after taking the wrong bus. When asked if she investigated whether
using public transportation in Memphis was difficult, Dr. Everington responded that the
“inference was that most people could do that and [Petitioner] could not.”

With regard to the fact that Petitioner did not shop for his own clothing, Dr.
Everington explained that is “an important skill” and that it was unusual, “particularly for
a young man,” to not want to have nice clothes or tennis shoes. Dr. Everington
acknowledged that Petitioner’s girlfriend reported that he spent the money he had on
marijuana. Dr. Everington also testified that it was unusual for an adult to not shop for
groceries, even though Petitioner was living with his sister or his aunt. With regard to the
fact that Petitioner did not wash his clothes or clean the house while he was living with his
aunt, Dr. Everington testified that she did not know if that was because his aunt offered or
Petitioner refused to do those things for himself. Even though she did not know exactly
how much of Petitioner’s adult life he spent out of custody, Dr. Everington found it
“notable that there’s a perception that [Petitioner] would need help. That other people
could function independently, but that he would need help.”

E. State’s Expert Witness

The State called Dr. Tucker Johnson, a clinical psychologist,11 who testified that in
her opinion, Petitioner was not intellectually disabled. To reach that conclusion, Dr.
Johnson conducted a clinical interview of Petitioner as well as intelligence testing, an
adaptive screening, achievement testing, and a test of response style. Dr. Johnson ensured
that Petitioner understood that she had been retained by the prosecution and that his
responses would not be held in confidence. Dr. Johnson also reviewed the same records,
reports, and social histories that were provided to the defense experts. Finally, Dr. Johnson

11
Dr. Johnson’s qualifications are discussed further below in the context of Petitioner’s objection
pursuant to Tennessee Rule of Evidence 702.
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conducted several phone interviews of informants who knew Petitioner in different settings
throughout his life.

With regard to Petitioner’s medical history, Dr. Johnson reviewed Petitioner’s birth
records and did some research into the conclusions drawn therefrom by some of the other
experts. Dr. Johnson testified that although Petitioner’s head circumference was in the fifth
percentile, it was not listed as an abnormal finding in his birth records. Dr. Johnson
testified that the defense experts’ characterizations of Petitioner’s sagittal suture opening
was “inaccurate” and that based on her research, Petitioner’s sagittal suture opening was
average rather than abnormal. Dr. Johnson testified that when Petitioner was evaluated by
MTMHI, his mother spoke with a forensic social worker and reported “that there were no
complications with her pregnancy or delivery and that [Petitioner] met developmental
milestones within a normal time frame.” Although Petitioner’s mother reported to the
social worker that Petitioner was dropped on his head as an infant, Dr. Johnson did not
have any medical records about that incident. Dr. Johnson did have medical records of
Petitioner’s being admitted to the hospital when he was eleven years old and having an x-
ray of his spine, which may have been related to his mother’s report to the social worker
that Petitioner was admitted to the hospital after being “knocked out” as a young teenager.
Dr. Johnson also had medical records where Petitioner was hospitalized after he overdosed
on marijuana, cocaine, and pills.

Dr. Johnson testified that although Petitioner “clearly [had] a mental health history,”
it was “unclear” from the records “exactly when problems started arising with his mental
health.” Petitioner had never received mental health treatment while in the community.
Petitioner’s pretrial jail records reflected that Petitioner complained of paranoia, visual and
auditory hallucinations (including commands to hurt himself), intermittent suicidal
ideation, depression, and sleep disturbance. Petitioner reported that he had previously
attempted suicide by overdose and had threatened to hang himself. When Petitioner was
evaluated by MTMHI, he was diagnosed with schizophrenia and prescribed anti-psychotic
medication; however, there was a note that Petitioner “was probably exaggerating some
symptoms” and “embellishing features of an existing disorder.” When Petitioner was
transferred to prison after his conviction, he eventually stopped taking the anti-psychotic
medication. Petitioner reported that “it had been some years since he experienced
hallucinations,” and he continued to believe that he did not require mental health
medication. However, Petitioner continued to experience periods of depression and
suicidal ideation. Petitioner’s prison medical records also included “several unusual
complaints, including bugs crawling in his stomach, worms, sores under his skin, and fluid
leaking and moving in his body,” which Dr. Johnson testified was “probably an indication
of a residual symptom of psychosis.” Additionally, Petitioner frequently complained about
pain in his back, and he “was diagnosed by a neurologist with somatoform pain disorder,
which is a disorder where somebody is reporting pain . . . but they can find no medical
substantiation for that.” Based upon these records, Dr. Johnson concluded that Petitioner
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“was displaying some symptoms of . . . a major mental illness of psychotic proportions”
around the time of the offense in this case but that those symptoms had since stabilized.

With regard to Petitioner’s social history, Dr. Johnson testified that it was
“abundantly clear that the household in which [Petitioner] was raised was chaotic” and that
Petitioner did not “have any role models who exhibited adequate adaptive functioning for
him to learn it.” Dr. Johnson testified that Petitioner’s mother had “a number of legal
problems,” “a significant addiction to drugs and alcohol,” and was often away from home,
“so a lot of the parenting was apparently incumbent upon the grandmother, who had a
major mental illness.” Petitioner’s childhood home was “very busy,” with a lot of people
coming through to buy and use drugs. Dr. Johnson also noted the “severe” domestic
violence between Petitioner’s mother and the different men with whom she was involved,
as well as the violence in the neighborhood. Dr. Johnson testified that Petitioner sometimes
had to beg for food and performed backflips on Beale Street as a means of earning money
to eat. Dr. Johnson testified that as a teenager, Petitioner lost several friends in a severe
car accident, which qualified as a traumatic event regardless of whether he saw it or heard
about it. Dr. Johnson testified that Petitioner reported that he was a member of the Vice
Lords gang. Dr. Johnson asked Petitioner about the Gangland episode where he discussed
being in the Lemoyne Gardens Mafia, and Petitioner told her that he did not consider it to
be a gang but simply the housing project where he lived at the time. Dr. Johnson noted
that in the episode, Petitioner used an analogy (comparing the death of a gang leader to
cutting the head off of an animal), which Dr. Johnson testified requires “a little more
complicated thinking.”

Dr. Johnson also reviewed Petitioner’s school records. Dr. Johnson testified that
Petitioner attended Title One schools where many of the students were impoverished and
the teachers provided additional support, “act[ing] much as social workers; having a clothes
closet, feeding these children.” One of Petitioner’s former teachers reported that it was
common for kids to start school in the first grade being unable to read because of the lack
of Kindergarten and PreK services. Petitioner repeated the first grade after receiving low
grades and TCAP test scores, but both improved significantly the following year.
Petitioner generally received good grades and positive comments from teachers throughout
elementary school, though there were some notes about excessive absences and poor
conduct. Additionally, Petitioner’s scores on TCAP tests remained relatively high,
including several scores over the ninetieth percentile. However, Petitioner’s grades
dropped significantly in middle school, and his seventh grade TCAP scores were all well
below the fiftieth percentile. Dr. Johnson testified that Petitioner’s low grades and TCAP
scores from his first time through the first grade and in middle school did not seem
consistent with the reports of widespread grade inflation and TCAP cheating, and
Petitioner’s former teachers with whom she spoke denied that they personally engaged in
such practices. During Dr. Johnson’s interview with Petitioner, he reported that he took
medication for ADD while in school but that he did not receive special education services.
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Petitioner did not know why his academic performance declined in the seventh grade, and
he could not explain why he dropped out of school in the eighth grade. Dr. Johnson
testified that Petitioner’s memory was “pretty good” and “corresponded with the school
records that we had.”

Dr. Johnson testified that Petitioner’s employment history as an adult was limited
to his employment with a temp agency in 2005. It was through this agency that Petitioner
obtained a job at Patterson Warehouse for three or four months. Petitioner indicated that
his job duties included unloading boxes from trucks and that his supervisors were generally
pleased with his performance. Petitioner reported that he was fired from that job because
a supervisor lied about Petitioner’s abuse of break time. The temp agency then sent him to
another job where he was also responsible for unloading trucks, but Petitioner did not like
that job and did not return after the first day. Soon thereafter, Petitioner was arrested in
this case. Dr. Johnson asked Petitioner how he got money when he was not working, and
Petitioner told her that his mother gave him money or that he “engaged in illegal activities
that could bring him money.”

Dr. Johnson spoke to Marsha McMillan about Petitioner’s job performance at
Patterson Warehouse. Ms. McMillan described Petitioner as “mentally slow.” She
reported that Petitioner “seemed to forget instructions and had to redo tasks and could not
read written directions.” Ms. McMillan described an incident during which Petitioner was
working on a task but “was not doing it very well and a stack of boxes fell on him.” Ms.
McMillan reported that Petitioner was shy and asked her to tell a girl who worked with
them that he was attracted to her. Dr. Johnson asked Ms. McMillan if she was aware
whether Petitioner was using drugs on the job, and Ms. McMillan reported that she was not
aware at the time but was later told by some associates that Petitioner had used cocaine and
heroin. After her initial interview with Ms. McMillan, Dr. Johnson attempted to schedule
a follow-up interview in order to administer an ABAS rating scale but was unsuccessful.

Dr. Johnson interviewed Petitioner’s aunt, Alma Rockett, with whom Petitioner had
lived for about 4 or 5 months prior to his incarceration in this case. Ms. Rockett had known
Petitioner since his birth, but she had moved away for a period of 14 years and did not see
Petitioner during much of his childhood and teenage years. Ms. Rockett reported that her
sister, Vivian Pruitt, drank heavily and used illicit drugs during her pregnancy with
Petitioner. Ms. Rockett described Petitioner as “real hyper as a child and then was fidgety,
nervous and restless as an adult.” Ms. Rockett reported that Petitioner would “sometimes
burst out laughing for no discernible reason,” “star[e] off into space,” or talk to himself.
Ms. Rockett believed that Petitioner had paranoid schizophrenia based on her experience
with her mother, who displayed symptoms of a major mental illness and was periodically
hospitalized.

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 Dr. Johnson was able to get some general information about some of Petitioner’s
adaptive behaviors while he lived with Ms. Rockett. Ms. Rockett reported that Petitioner
took out the trash but did not cook or perform other household chores. Ms. Rockett
reported that Petitioner would offer to help around the house, and she knew that Petitioner
could do those chores because he had done them while living with his mother. However,
Ms. Rockett did not want him to help with chores because “she wanted them done a certain
way” and “she preferred to do it herself in her home.” Ms. Rocket reported that Petitioner
had a job for a short period of time and that he took the bus to work. Dr. Johnson testified
that Dr. Everington’s report had indicated that Ms. Rockett would lock Petitioner out of
her house while she was away because she was afraid that he would hurt himself due to his
low functioning. However, when Dr. Johnson asked Ms. Rockett about this, Ms. Rockett
said that someone had told her that Petitioner said he was going to rob her and kill her and
her mother, so she locked Petitioner out because she was afraid for her mother’s safety.
Ms. Rockett reported that she had not had any contact with Petitioner since he entered
prison.

Dr. Johnson attempted to administer an ABAS rating scale to Ms. Rockett to try to
replicate Dr. Everington’s findings. Dr. Johnson testified that “Ms. Rockett cooperated for
a little bit, but she kept saying, ‘I already told this information to these other people.’” Ms.
Rockett stated that she was told by the defense team that the information she provided
could help Petitioner avoid the death penalty. After explaining the importance of each side
doing an independent assessment, Dr. Johnson was able to get through several adaptive
domains before Ms. Rockett said that she did not want to do it anymore. In each adaptive
domain that was completed, there were a number of items on which Ms. Rockett responded
“I don’t know” even after being encouraged to guess by Dr. Johnson. This resulted in Dr.
Johnson being unable to score the test; however, Dr. Johnson was still able to use the
information provided in the questions that Ms. Rockett did answer in forming her opinion.
Dr. Johnson noted that there were no “I don’t know” answers on Dr. Everington’s ABAS,
so Dr. Johnson did not believe that Ms. Rockett’s ratings could be considered reliable,
meaning similar across administrations.

Dr. Johnson testified that while “adaptive functioning has to also be assessed kind
of retrospectively,” she believed that “adaptive functioning in a prison environment is
relevant to a current status of intellectual disability since that’s supposedly a lifelong
disorder.” Dr. Johnson explained that because of the structure of the prison environment,
“[y]ou can’t assume necessarily that the person has an ability to independently follow any
sort of structure in his life, but you can look at whether or not there are any -- anything
outstanding that correctional officers have noted that would be indicative of intellectual
disability, such as an inmate having trouble understanding, speaking very slowly,
sometimes not responding at all, needing directions repeated a number of times, having
trouble following multiple step directions.” Dr. Johnson noted that intellectually disabled
inmates tend to be “preyed upon by more sophisticated inmates.” The correctional
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counselor with whom Dr. Johnson spoke considered Petitioner to be “an average inmate”
who “functioned comparable to other inmates.” Petitioner followed the rules, was on the
highest level of privileges, and had not had a disciplinary infraction since 2013. Petitioner
did well with preparing his cell for inspection and did not demonstrate problems with
personal hygiene. Petitioner generally got along with the prison staff and other inmates,
and there were no reports of Petitioner’s “being shunned or bullied or taken advantage of
or being preyed upon.” Petitioner engaged in leisure activities like playing dominoes,
basketball, and handball, and he was able to answer Dr. Johnson’s question about how to
know who wins a game of handball. The correctional counselor reported that although
Petitioner sometimes spoke slowly, “he didn’t demonstrate any problems with expressing
himself,” “what he said was very logical and understandable[,] and he seemed to
understand all conversations.”

Dr. Johnson testified that Petitioner was currently attending classes to obtain his
GED so that he would be eligible to work in the prison. Dr. Johnson testified that Petitioner
was taking adult basic education classes as a precursor to the GED classes. Dr. Johnson
testified that “there was a lot of variability in [Petitioner’s test] scores,” which were
expressed in terms of grade equivalency. The correctional teacher reported that Petitioner’s
effort also varied and that some of the very low scores may have been because he was not
trying. The teacher reported that Petitioner put forth more effort and scored higher on his
most recent testing because he was interested in a barber job that might become available.
The teacher reported that Petitioner would occasionally miss problems that he knew how
to do, which suggested to Dr. Johnson that Petitioner had “some persisting attention
deficits.” Petitioner generally scored higher in math skills and language than he did in
reading. Dr. Johnson testified that although Petitioner dropped out of school in the eighth
grade, there were several tests on which Petitioner scored above an eighth-grade
equivalency, which “would not be expected of someone with intellectual disability.” Dr.
Johnson noted that one of the defense experts had said that Petitioner “appeared to be
learning and obtaining more knowledge as a result of . . . his educational instruction[.]”

Dr. Johnson testified that she administered an adaptive screening to Petitioner,
which she had used several times in the past but conceded was not standardized. Dr.
Johnson testified that the questions primarily focused on the conceptual and practical
domains, but she also gathered any information she could about the social domain. Dr.
Johnson explained that the screening “looks at [Petitioner’s] ability to display the behaviors
that I asked about” and that a correct answer indicates that Petitioner has a skill in that area,
although “[i]t doesn’t necessarily indicate that he always displayed that in the community.”

Dr. Johnson testified that Petitioner knew the date, was able to correctly spell the
day of the week and the month, correctly wrote his Social Security Number from memory,
correctly spelled his first and last name, and correctly wrote the address of the prison.
Petitioner was able to accurately identify the current and previous presidents and discuss a
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current event in the news. Petitioner was able to provide the name and phone number of a
family member with whom he remained in contact. Petitioner was able to draw simple
shapes and write a sentence with correct capitalization and punctuation. Petitioner was
able to perform calculations in his head to determine the correct amount of change.
Petitioner was able to indicate the correct time on an analogue clock face.

Petitioner indicated to Dr. Johnson that he had never washed his clothes in a washing
machine because his aunt performed this task for him. Additionally, Petitioner stated that
he never cooked using a stove or oven or followed a recipe because he “didn’t have to”
when all of his meals were prepared by his mother, grandmother, or aunt. Petitioner
indicated that he knew how to use a microwave, that he swept and mopped as part of
keeping a house clean, and that he showered to keep himself clean. Dr. Johnson believed
that Petitioner’s response about going to a hospital in order to see a doctor was “pretty
consistent with his sociocultural environment.” Petitioner knew to call 911 in an
emergency, indicating that he had done so in the past after an incident where his mother
was stabbed. Petitioner stated that he sometimes drove a car, although he never obtained
his driver’s license, which Dr. Johnson stated was not unusual based on her experience
with people from impoverished areas of Memphis. Petitioner stated that his brother taught
him how to drive, and he was able to explain what different traffic signs meant. Petitioner
testified that his mother showed him how to catch a bus, and he explained that he would
get off when he recognized the area; however, Petitioner “gave some conflicting
information” about what he would do if he went somewhere unfamiliar.

Petitioner indicated that he had experience using a computer to search the internet
and a cellphone for texting. He was able to answer questions about ordering food at a
restaurant, shopping, using public restrooms, and what to do in various emergency
situations. Petitioner knew how much money was in his inmate account and how much he
was paid per hour for attending school. When Petitioner was employed in the community,
he would cash his paycheck at a check-cashing place and keep the money on his person.
Petitioner never had a bank account or filed tax returns, which Dr. Johnson did not believe
was unusual in more the impoverished areas of Memphis.

Dr. Johnson testified that Petitioner “did a pretty good job of relating his history”
with regard to his medical history, childhood, and schooling, which involved the use of
long-term memory. Dr. Johnson noted that “a fair amount of the time intellectually
disabled people will have some problems with recalling their history comprehensively and
putting together timeframes.” However, Dr. Johnson did not notice any “striking
abnormalities in [Petitioner’s] ability to recall and provide information that was relative to
events in his life.”

Dr. Johnson contrasted some of her observations of Petitioner with some of the
ratings on the ABAS conducted by Dr. Everington. Dr. Johnson testified that Petitioner
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displayed good social skills during the interview, such as pouring water for Dr. Johnson
and asking her if she wanted some food when he received his lunch, although he had been
rated as “never or almost never” offering food or beverage to guests. Dr. Johnson testified
that although Petitioner was rated as “sometimes” speaking clearly and distinctly and
“never or almost never” listening closely for more than five minutes, she did not experience
any difficulties with him in these areas. With regard to the question of “[p]articipat[ing]
in conversations without talking too much or too little,” Petitioner was rated as “never or
almost never.” Dr. Johnson testified that she found “some of [Petitioner’s] answers were
abbreviated, but when I asked him to elaborate, he had no trouble with elaborating, giving
me an adequate amount of information.” Dr. Johnson noted that “there’s such a thing as a
skill deficit and a performance deficit, but in these areas I definitely didn’t see a skill
deficit.” Dr. Johnson testified that she believed it was important to take into account the
context of whether there was an opportunity or a need to perform a skill, such as
Petitioner’s not washing his clothes or cooking his meals because others did those things
for him.

Dr. Johnson administered a comprehensive standardized I.Q. test to Petitioner, as
well as an achievement test and tests of response style and effort. Dr. Johnson testified that
Petitioner had a full-scale I.Q. score of 75, with a 95 percent confidence interval of 71 to
80, which “puts him in the borderline range.” Dr. Johnson testified that Petitioner’s “verbal
comprehension was also in the borderline range at 72, which was not unexpected given
that he has the difficulty with reading.” Petitioner’s other composite scores for perceptual
reasoning, working memory, and processing speed were all in the low average range. Dr.
Johnson testified that Petitioner “didn’t get any scores in the low range that are consistent
with intellectual disability.” Petitioner’s scores on the achievement test administered by
Dr. Johnson were similar to those on the test administered by Dr. Everington and were
“above what you would expect from someone with an intellectual disability.” Dr. Johnson
also administered the Validity Indicator Profile, a test of response style and effort that can
also give an estimate of cognitive ability because the questions get progressively more
difficult. Petitioner’s response style was rated as “compliant,” which “indicated that he
was both intending to do well on the test and exhibiting the adequate effort,” and his
adjusted score was “significantly above” the average score of adults with known
intellectual disability.

Dr. Johnson testified that she disagreed with Dr. Auble’s testimony that Petitioner
may have scored higher on the Matrix Reasoning subtest by guessing, noting that the
probability of Petitioner answering three of the more difficult items correctly in a row by
just guessing was “extremely low.” Dr. Johnson believed that Petitioner’s incorrectly
answering some of the easier items on the test was “probably consistent with the attention
deficits” that the correctional teacher had noticed. Additionally, Dr. Johnson observed
Petitioner’s behavior while he was taking the test, and he appeared to be “behaving exactly
as I would expect” of someone considering each answer rather than guessing. Dr. Johnson
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testified that Petitioner got a perfect score on the Test of Memory Malingering, which
meant that he was “exhibiting adequate effort.” Based on Dr. Johnson’s observations,
Petitioner appeared to be giving adequate effort on all of the tests in that he would not
answer too quickly and would change responses if he realized one was incorrect. Dr.
Johnson testified that she was not concerned about the validity of any of the scores she
obtained on the cognitive testing.

Dr. Johnson believed that there were “some problems with interpreting the prior I.Q.
test[s] . . . and the prior diagnoses [of mild mental retardation] because of various ancillary
issues.” Dr. Johnson believed it was “odd” that even though Dr. Rutledge issued a report
for juvenile court saying that Petitioner had mild mental retardation, she did not assess
Petitioner’s adaptive functioning and only testified at trial to adaptive deficits that occurred
after her evaluation. Dr. Johnson also noted that both Dr. Craddock and Dr. Steinberg
concluded that Petitioner’s “general intellectual functioning was within the borderline
range, rather than extremely low,” despite I.Q. scores below 70, because “there was no
evidence to suggest that [Petitioner] demonstrated significant deficits [in] adaptive
functioning.” Dr. Johnson testified that both marijuana use and mental illness can affect a
person’s performance on an I.Q. test. Dr. Johnson noted that Petitioner was reported as
“using marijuana all day, every day” and was experiencing symptoms of a psychotic
disorder at the time he was arrested and initially evaluated in this case. Because Petitioner’s
mental illness had stabilized and he was no longer using marijuana by the time she tested
him, Dr. Johnson believed that she obtained a more accurate I.Q. score.

Dr. Johnson testified that the DSM-5 requires adaptive deficits to “arise from the
intellectual deficits,” which she explained “provides a little more conservative estimate”
because “if it doesn’t matter where those arise from – the diagnosis is going to be given to
more people.” Dr. Johnson testified that in Petitioner’s case, it was unclear if “what’s
reported as deficits actually were due to a problem with intellectual functioning” as
opposed to drug use or mental illness. As an example, Dr. Johnson explained that “if
someone’s high on marijuana, they are going to have problems with all of those things on
the job” that were described by Ms. McMillan, such as working slowly and not
understanding directions. Additionally, Dr. Johnson noted that Petitioner was fired from
his job at Patterson Warehouse for abusing break time, not because of poor job
performance, and speculated that Petitioner may have been using marijuana on his breaks.
Dr. Johnson testified that it was “not clear from the record that [Petitioner] required support
rather than choosing it.” As an example, Dr. Johnson testified that Petitioner “was content
to have his relatives launder[] his clothes and didn’t attempt to learn this skill, although his
intelligence that I measured in the borderline range suggests he could learn that skill if
given the opportunity.”

Dr. Johnson agreed with Dr. Everington that the ABAS could be used to conduct a
retrospective assessment of adaptive functioning even though that is not a standard
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administration. However, Dr. Johnson was concerned that Dr. Everington’s report listed
only a single set of scores for all three respondents. Dr. Johnson explained that multiple
informants should be given separate rating forms, otherwise it is not clear who provided
what information. Dr. Johnson testified that while a nonstandard administration of the
ABAS is permissible, the report should clearly explain “the nature and purpose of the
nonstandard administration” and “provide appropriate cautions regarding use or nonuse of
the scores.” Dr. Johnson testified that Dr. Everington’s report did not contain such a
notation, and Dr. Johnson was not aware of the nonstandard administration until she looked
at the raw data. Dr. Johnson testified that “when you start making exceptions to
standardized procedures, the more you make, the more potentially unlikely that your scores
actually reflect the functioning of the individual.”

Dr. Johnson agreed with Dr. Auble’s opinion that Petitioner did not appear to have
been intellectually disabled early in life. However, Dr. Johnson disagreed with Dr. Auble’s
opinion that Petitioner developed marijuana induced persisting dementia, now known as
neurocognitive disorder under the DSM-5. Dr. Johnson testified that while being
intoxicated or experiencing withdrawal from marijuana use can affect a person’s
performance on an I.Q. test, recent studies suggested that the cognitive decline associated
with marijuana use “pretty much disappears after 72 hours.” Dr. Johnson noted that the
diagnostic criteria for dementia required an impairment in memory and the ability to learn
new information, but Petitioner was able to recall his social history and “demonstrated that
he is able to improve his academic functioning with instruction.” Dr. Johnson testified that
if the “influence [on Petitioner’s memory] has been less over time, I think that calls into
question whether or not there’s an intellectual disability that was precipitated by a . . .
cannabis induced neurocognitive disorder, major or mild.” Additionally, Dr. Johnson
could not find any academic literature or “research study that marijuana use was associated
with dementia.”

On cross-examination, Dr. Johnson testified that as part of her role with the Shelby
County Juvenile Court, she was familiar with the ACEs study and had attended many
trainings related to trauma. Dr. Johnson agreed that the more ACEs a person had, the more
likely they were to have negative mental and physical health outcomes. Reviewing the
same records and social history interviews as Petitioner’s expert witnesses, Dr. Johnson
agreed that Petitioner lived in a home with severe domestic violence, prevalent drug use,
frequent arrests, mental health issues, and various forms of abuse and neglect, all of which
are ACEs. Additionally, Petitioner grew up in an impoverished neighborhood where
violence and crime were prevalent. Dr. Johnson testified that as a young child, Petitioner
might not have been fully aware of everything that was going on but that he eventually
became more aware as he got older. Dr. Johnson testified that unresolved trauma in
children can lead to behavioral disturbances, problems with learning, a heightened threat
response, substance abuse, and anxiety and mood disorders. Dr. Johnson agreed that
Petitioner did not have nurturing people in his life to help him build resilience.
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 Dr. Johnson reviewed several portions of the AAIDD’s manual and user guide with
post-conviction counsel. Dr. Johnson agreed with the AAIDD’s manual where it cautioned
against relying exclusively on an individual’s self-report of adaptive deficits. While Dr.
Johnson agreed that many people with intellectual disability may attempt to appear more
competent than they are, she did not know if that was necessarily true for defendants in the
criminal justice system. Dr. Johnson agreed that “practice effects,” which can increase I.Q.
scores when a person has been tested multiple times, should be taken into consideration if
a person is retested within one to two years of a previous test administration. Dr. Johnson
testified that she “partially agreed” with the AAIDD manual’s recommendation that “past
criminal behavior” should not be used to “infer level of adaptive behavior.” Dr. Johnson
testified that while she does not “look at sophistication of criminal behavior,” certain
crimes, like aggravated assaults, may be related to communication deficits and displays of
aggression seen in “the lower ranges of intellectual disability.” Dr. Johnson disagreed with
the AAIDD manual’s recommendation to not take into account a person’s “street smarts,”
explaining that the DSM-5 states that adaptive skills, or the “ability to adapt to your
surroundings,” should be assessed in relation to “socioculturally matched individuals.” Dr.
Johnson testified that “in some of the more dangerous neighborhoods, it takes some
adaptive skill that would not be on the ABAS, but it still is relevant.” Dr. Johnson agreed
that a person’s behavior while in jail or prison “needs to be considered within the context
of a structured environment.” Dr. Johnson acknowledged that Petitioner possessed many
of the prenatal, perinatal, and post-natal risk factors for intellectual disability listed in the
AAIDD’s manual.

Dr. Johnson testified that the DSM-5 defines the I.Q. component of intellectual
disability as “about 70 plus or minus five.” Dr. Johnson explained that because of this
range, “[t]here can be someone whose I.Q. is above 70, but they experience such the bare
academic deficits that . . . they would potentially be eligible for a diagnosis of intellectual
disability.” Conversely, someone with an I.Q. below 70 who does not demonstrate
significant adaptive deficits would not be diagnosed as intellectually disabled. Dr. Johnson
testified that while the DSM-5 requires significant deficits in only one of three domains of
adaptive behavior, she “really wouldn’t expect if somebody had significant deficits in one
of the domains that the other two would be strong” because some of the behaviors in each
domain overlap. Dr. Johnson noted that the DSM-4TR was the “diagnostic bible” in use
at the time of the offense in this case and that it required deficits in more than one area of
adaptive behavior, which was divided into more narrow categories. Dr. Johnson testified
that there was “some disagreement [among experts performing Atkins evaluations] about
which diagnostic manual to use” when determining if a person was intellectually disabled
at the time of the offense. Dr. Johnson agreed that both she and the defense experts relied
upon the DSM-5 in this case.

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 Dr. Johnson testified that “there are a number of different etiologies for intellectual
disability” and that, particularly in the mild range, there may be no specifically identifiable
cause. Dr. Johnson agreed that people with intellectual disability have “a wide spectrum
of disabilities and abilities” and can range from totally dependent on the severe end to
nearly independent on the mild end. Dr. Johnson agreed that the majority of people with
intellectual disability would be classified as mild. However, even for mild intellectual
disability, a person’s adaptive deficits must “be significant enough to require some
support.” Dr. Johnson agreed that the onset of intellectual and adaptive deficits must occur
during the developmental period and that some people may develop such deficits as
adolescents.

Dr. Johnson agreed that Petitioner received an I.Q. score of 66 when he was sixteen
years old and in the Shelby County Jail. Dr. Johnson noted that Dr. Rutledge did not
administer “concomitant measures of effort” but indicated that Petitioner “obviously
considered the procedure a joke,” so Dr. Johnson was not sure that the resulting I.Q. score
was “accurate.” However, Dr. Johnson testified that if the score was accurate, it indicated
that Petitioner “has problems with learning, memory, executive functioning, planning.”
Dr. Johnson noted that Petitioner was tested by Dr. Craddock in August of 2006 and
received an I.Q. score of 68, which Dr. Craddock believed was a fair representation of his
intellectual ability. Dr. Johnson testified that an I.Q. test is not designed to specifically
look at executive functioning the way neuropsychological testing does. Dr. Johnson
testified that neuropsychological tests are useful for determining a person’s specific
strengths and weaknesses in order to properly tailor the supports a person receives. Dr.
Johnson agreed that providing supports is not a factor in an Atkins evaluation where the
only issue is the person’s eligibility for the death penalty.

Dr. Johnson testified that the Test of Memory Malingering is a test of response style
and effort, which is designed “as a way to understand what the examinee’s approach to the
cognitive testing is” and determine if they are malingering or exaggerating their cognitive
impairment. Dr. Johnson administered only the first trial of the test to Petitioner, even
though the test protocol requires at least two trials, because she believed that “trial two is
not going to give me any additional information” after Petitioner received a perfect score
on the first trial, indicating that he was “fully cooperating.” Dr. Johnson explained that the
test does not measure a person’s memory or cognitive abilities but instead tests the person’s
“willingness to show me his memory abilities.” Dr. Johnson testified that the Validity
Indicator Profile is “the only malingering test that . . . gives you some read [on] cognitive
skills, if the person is being compliant.” Both tests indicated that Petitioner “did not appear
to be malingering.”

Dr. Johnson agreed that Petitioner was initially evaluated in this case by Midtown
Mental Health, who referred him to MTMHI due to concerns about his competency. While
at MTMHI, Petitioner was diagnosed schizophrenia and prescribed medication. Dr.
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Johnson testified that in her experience with West Tennessee Forensic Services, a
defendant discharged from a psychiatric hospital may have a recommendation for follow-
up care in the jail, but she did not know if that occurred in Petitioner’s case. Dr. Johnson
disagreed with Dr. Dudley’s opinion that Petitioner was receiving an excessively high
dosage of Risperdal but conceded that she did not know how Petitioner may have
responded to that dosage. Dr. Johnson agreed that psychiatric disorders occur at a higher
rate in the intellectually disabled population than in the neurotypical population.

Dr. Johnson agreed that the DSM-5 recommends using standardized and culturally
appropriate measures of adaptive functioning whenever possible. Dr. Johnson agreed that
the ABAS is a standardized test and testified that “if you administer it according to the
standardized procedures, then you get some pretty good data relative to the normal
sample.” However, Dr. Johnson testified that because the ABAS was normed to the general
population, it may not necessarily be socioculturally appropriate for the environment in
which Petitioner was raised. Dr. Johnson explained that the ABAS included many skills
that may not be relevant or required for adaptive functioning in that environment, which
would result in the rater giving a lower score on those skills. Dr. Johnson acknowledged
that this was an issue with most standardized assessments of adaptive behavior. Dr.
Johnson clarified that she did not choose to not administer the ABAS to Petitioner in this
case because of “sociocultural issues” but because she prefers to administer standardized
assessments to collateral informants.

Dr. Johnson conceded that the adaptive screening she administered to Petitioner is
not a standardized test. She explained that the questions were designed to assess similar
skills as the ABAS and the Vineland, another standardized test of adaptive behavior.
However, rather than asking Petitioner to rate a particular skill on a numerical scale, she
asked him information about those skills, such as how to wash clothes, make change, or
tell time. Dr. Johnson testified that she had developed the adaptive screening while
working at the Department of Intellectual and Developmental Disabilities (“DIDD”) and
that it was not copyrighted. Dr. Johnson testified that she did not assign any weight to the
questions a priori; instead, she would focus on questions that showed the person had a
significant deficit in a particular area without penalizing the person for having a strength
in a different area, which was consistent with the diagnostic criteria. Dr. Johnson
acknowledged that, with the exception of a few questions where she asked Petitioner to
perform a certain skill, she mostly had to rely on his self-report about what he could do.
Dr. Johnson agreed that the majority of the questions discussed in her report focused on
the practical domain. Dr. Johnson noted that the DSM-4TR in use at the time of Petitioner’s
arrest did not require the use of standardized assessments of adaptive behavior.

Dr. Johnson testified that at the time she conducted the adaptive screening, she was
still hoping to complete an ABAS rating scale with Alma Rockett. Because Petitioner had
lived with Ms. Rockett for a few months prior to the offense in this case, Dr. Johnson
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believed that she would be the most familiar with his functioning at home and in the
community during that time. Dr. Johnson also wanted to administer at least the work
component of the ABAS to Marsha McMillan but had difficulty scheduling with her. Dr.
Johnson explained that she also wanted to administer the ABAS to Ms. Rockett in order to
compare her results to Dr. Everington’s administration, explaining that “it is important that
standardized procedures be able to be replicated.” However, after reviewing Dr.
Everington’s raw data, Dr. Johnson realized that such comparison would not be possible.

Dr. Johnson recognized the potential for bias with using Ms. Rockett as an
informant. Dr. Johnson noted that Ms. Rockett stated that she had been told by the defense
team that her responses could help Petitioner avoid the death penalty. Additionally, Dr.
Johnson testified that Ms. Rockett’s reasoning for not kicking Petitioner out of her home
after learning that he allegedly threatened to rob and murder her was because he was family,
which indicated that she “still remains pretty attached” to Petitioner. However, Dr.
Johnson also acknowledged that Ms. Rockett could be biased against Petitioner because
she had testified for the State at trial and had not been in contact with Petitioner since he
went to prison. During one of Dr. Johnson’s interviews with Ms. Rockett, she stated that
she did not want any involvement with Petitioner because he had “disappointed” her and
caused her son to lose his job. Dr. Johnson did not consider using Michael Rockett as an
informant even though he had spoken to Dr. Everington.

Dr. Johnson agreed that Petitioner’s best school performance was while he attended
Larose Elementary, which was located within walking distance of his home, provided “a
number of services to try to take care of the children,” and acted as a “safe haven” for
Petitioner. Dr. Johnson also agreed that Petitioner’s school performance and attendance
suffered when he entered middle school because he and his friends were often attacked
when they walked through a different housing project. Dr. Johnson agreed that Petitioner’s
grandmother was his primary caregiver because “she was the person there in the home
absolutely more than anyone else,” but Dr. Johnson did not “know how much caregiving
she could provide consistently” with her mental illness. Ms. Rockett reported to Dr.
Johnson that Petitioner’s mother “was a party type [who] drank heavily” and “would go
away for weeks at a time.” Dr. Johnson agreed that Petitioner had a long history of arrests
as both a juvenile and adult, and there were reports that Petitioner was susceptible to
impulsive behavior. Dr. Johnson did not see any medical or school reports that Petitioner
was diagnosed with ADHD. Dr. Johnson agreed that Petitioner had a very deprived
childhood.

On redirect examination, Dr. Johnson testified that the presence of various ACEs in
Petitioner’s life did not change her opinion that he is not intellectually disabled. Based on
her experience in both the adult and juvenile courts in Memphis, Dr. Johnson testified that
it was “rare to find someone in the system who doesn’t have [a] significant number of
ACEs.” Likewise, Dr. Johnson testified that it was “quite common” for the people she
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encountered to have many of the risk factors for intellectual disability identified in the
AAIDD’s manual.

On May 3, 2019, the post-conviction court issued an extensive written order
summarizing the testimony presented and reviewing the applicable law with regard to
Petitioner’s numerous claims. As discussed further below, the post-conviction court
determined that trial counsel were deficient with regard to their investigation and
presentation of evidence regarding Petitioner’s adaptive deficits in support of his
intellectual disability claim but that he was not prejudiced by the deficient performance.
With regard to Petitioner’s other claims, the post-conviction court similarly determined
that Petitioner had failed to prove by a preponderance of the evidence either deficient
performance or prejudice. Accordingly, the post-conviction court concluded that Petitioner
was not entitled to relief and denied his petition. Petitioner filed a timely notice of appeal
to this Court.

Analysis

I. Recusal of Post-Conviction Judge

Prior to the evidentiary hearing in this case, Petitioner filed a motion seeking recusal
of the post-conviction judge. See Tenn. Sup. Ct. R. 10B, § 1. According to the motion,
the judge provided sworn testimony at an unrelated disciplinary hearing regarding his
personal opinion about the reputation and credibility of the Assistant District Attorney
(“ADA”) who was representing the State in this post-conviction proceeding. Petitioner
also asserted that during this same testimony, the judge made a comment contrasting his
favorable opinion of the ADA with the actions of an unnamed defense attorney in a capital
post-conviction case, which Petitioner asserts was a reference to his attorney in this case
reflecting the judge’s negative bias. The post-conviction judge denied the recusal motion,
stating that “these matters are tried and decided on the facts of the case presented to the
judge using the applicable law, and not on the judge’s opinion, if any, of the character of
the attorneys.”

Petitioner sought an accelerated interlocutory appeal in this court pursuant to
Tennessee Supreme Court Rule 10B, § 2. This court affirmed the denial of the recusal
motion, finding that the judge’s statements that the ADA “was honest and ethical would
place [the ADA] in no higher standard than any attorney appearing in his courtroom” and
that the statement presumably referring to Petitioner’s counsel did “not show bias or
prejudice to rise to the level of recusal.” Corinio Allen Pruitt v. State, No. W2017-00960-
CCA-T10B-CO (Tenn. Crim. App., at Jackson, July 31, 2017) (order). Petitioner then filed
an accelerated application for permission to appeal to the Tennessee Supreme Court. See
Tenn. Sup. Ct. R. 10B, § 2.07. The majority of the Tennessee Supreme Court concluded
that this court “did not err in affirming the trial court’s denial of the applicant’s motion for
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recusal” and denied the application. Corinio Allen Pruitt v. State, No. W2017-00960-SC-
T10B-CO (Tenn. Oct. 17, 2017) (order); but see id. (Lee, J., dissenting).

Petitioner did not file an additional recusal motion or present any additional
evidence in the post-conviction court to support his claim of judicial bias. Instead, in his
appellate brief, Petitioner attempts to relitigate his claim that the post-conviction judge
should have been disqualified due to the appearance of bias created by the judge’s
disciplinary hearing testimony. Additionally, Petitioner asserts that the post-conviction
judge’s bias “manifested in the court’s skewed view of [t]his case” as reflected in the
judge’s weighing of certain evidence related to mitigation and intellectual disability.
Petitioner requests that this case “be remanded for a new post-conviction hearing should
the Court decline to grant the other relief requested herein.”

This court’s prior conclusion that the post-conviction judge’s disciplinary hearing
testimony did not create an appearance of bias rising to the level of recusal is binding upon
this court under the law of the case doctrine. See State v. Lesergio Duran Wilson, No.
M2017-01950-CCA-R3-CD, 2019 WL 246249, at *7 (Tenn. Crim. App., at Nashville, Jan.
17, 2019); State v. Lindsey Brooke Lowe, No. M2014-00472-CCA-R3-CD, 2016 WL
4909455, at *26 (Tenn. Crim. App., at Nashville, July 12, 2016), aff’d, 552 S.W.3d 842
(Tenn. 2018). The law of the case doctrine “typically precludes the reconsideration of
issues already decided in prior appeals of the same case.” State v. Hall, 461 S.W.3d 469,
500 (Tenn. 2015) (citing State v. Jefferson, 31 S.W.3d 558, 560 (Tenn. 2000)). “[U]nder
the law of the case doctrine, an appellate court’s decision on an issue of law is binding in
later trials and appeals of the same case if the facts on the second trial or appeal are
substantially the same as the facts in the first trial or appeal.” Jefferson, 31 S.W.3d at 560-
61 (quoting Memphis Publg. Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975
S.W.2d 303 (Tenn. 1998)). The law of the case doctrine “is a longstanding discretionary
rule of judicial practice which is based on the common sense recognition that issues
previously litigated and decided by a court of competent jurisdiction ordinarily need not be
revisited.” Id. at 561.

However, courts may reconsider issues that were previously litigated if one of the
following limited exceptions applies:

(1) the evidence offered at a trial or hearing after remand was substantially
different from the evidence in the initial proceeding; (2) the prior ruling was
clearly erroneous and would result in a manifest injustice if allowed to stand;
or (3) the prior decision is contrary to a change in the controlling law which
has occurred between the first and second appeal.

Id. Although Petitioner argues that recusal was warranted in this case due to the post-
conviction judge’s disciplinary hearing testimony, he does not specifically allege that this
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court’s prior ruling on the issue was clearly erroneous and would result in a manifest
injustice if allowed to stand. Additionally, Petitioner has not alleged that there has been a
change in the controlling law since this court’s prior ruling. Finally, to the extent that
Petitioner’s claim on appeal is based upon “substantially different” evidence in the form of
the judge’s allegedly “skewed” factual findings, such evidence does not justify
reconsideration of the recusal issue. “Adverse rulings by a trial court are not usually
sufficient grounds to establish bias.” Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim.
App. 1994); see also Harris v. State, 947 S.W.2d 156, 173 (Tenn. Crim. App. 1996)
(concluding that the judge’s remarks at the conclusion of the post-conviction hearing “did
not diminish the overall fairness of the proceeding, even applying the heightened standards
of due process applicable in a capital case”). It is clear from the record that the judge
ensured that Petitioner received a full and fair post-conviction hearing with the opportunity
to present all of his witnesses and evidence. This court is able to review the record to
determine whether the evidence preponderates against any of the judge’s factual findings,
see State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001); thus, remand for a new
evidentiary hearing is not necessary. We continue to adhere to this court’s prior ruling that
recusal was not required in this case, and Petitioner is not entitled to relief on this issue.

II. Post-Conviction Procedure Act

In Case v. Nebraska, 381 U.S. 336 (1965), the United States Supreme Court
recommended that the states implement post-conviction procedures to address alleged
constitutional errors arising in state convictions in order to divert the burden of habeas
corpus ligation in the federal courts. In response, the Tennessee legislature passed the Post-
Conviction Procedure Act, whereby a defendant may seek relief “when a conviction or
sentence is void or voidable because of the abridgement of any right guaranteed by the
Constitution of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103;
see Sills v. State, 884 S.W.2d 139, 142 (Tenn. Crim. App. 1994) (“The Post-Conviction
Procedure Act was created to address and remedy constitutional wrongdoing in the
convicting or sentencing process which is significant enough to render the conviction or
sentence void or voidable.”).

A. Standard of Review

In order to prevail in a claim for post-conviction relief, a petitioner must prove his
factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is
no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a
post-conviction court’s findings of fact are conclusive unless the evidence preponderates
otherwise. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Vaughn v. State, 202 S.W.3d
106, 115 (Tenn. 2006). Accordingly, questions concerning witness credibility, the weight
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and value to be given to testimony, and the factual issues raised by the evidence are to be
resolved by the post-conviction court, and an appellate court may not substitute its own
inferences for those drawn by the post-conviction court. Henley v. State, 960 S.W.2d 572
(Tenn. 1997). However, the post-conviction court’s conclusions of law and application of
the law to the facts are reviewed under a purely de novo standard, with no presumption of
correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Claims of ineffective
assistance of counsel present mixed questions of fact and law; thus, our review is de novo,
with a presumption of correctness applied only to the post-conviction court’s findings of
fact. Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011).

B. Waived or Previously Determined Claims

When a petition for post-conviction relief is filed, the post-conviction court must
conduct a preliminary review of the factual allegations contained therein to determine
whether they have been waived or previously determined. T.C.A. § 40-30-106(f).
Pursuant to Tennessee Code Annotated section 40-30-106(g):

A ground for relief is waived if a petitioner personally or through an attorney
failed to present it for determination in any proceeding before a court of
competent jurisdiction in which the ground could have been presented unless

(1) The claim for relief is based upon a constitutional right not
recognized as existing at the time of trial if either the federal or state
constitution requires retroactive application of that right; or

(2) The failure to present the ground was the result of state action in
violation of the federal or state constitution.

See also Tenn. Sup. Ct. R. 28, § 2(D). “There is a rebuttable presumption that a ground
for relief not raised before a court of competent jurisdiction in which the ground could have
been presented is waived.” T.C.A. § 40-30-110(f). This presumption “is not overcome by
an allegation that the petitioner did not personally, knowingly, and understandingly fail to
raise a ground for relief.” Brimmer v. State, 29 S.W.3d 497, 527 (Tenn. Crim. App. 1998)
(quoting House v. State, 911 S.W.2d 705, 714 (Tenn. 1995)).

If a claim was raised before a court of competent jurisdiction, it will be considered
previously determined if the court “has ruled on the merits after a full and fair hearing.”
T.C.A. § 40-30-106(h). The statute defines “a full and fair hearing” as one “where the
petitioner is afforded the opportunity to call witnesses and otherwise present evidence,
regardless of whether the petitioner actually introduced any evidence.” Id.; see also Tenn.
Sup. Ct. R. 28, § 2(E). “A petitioner may not relitigate a previously determined issue by
presenting additional factual allegations.” Cone v. State, 927 S.W.2d 579, 582 (Tenn.
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Crim. App. 1995). Additionally, the Tennessee Supreme Court has held that the plain error
rule under Tennessee Rule of Appellate Procedure 36(b), which allows an appellate court
to review issues that were not otherwise properly preserved for appeal, “may not be applied
in post-conviction proceedings to grounds that would otherwise be deemed either waived
or previously determined.” Grindstaff v. State, 297 S.W.3d 208, 219 (Tenn. 2009) (citing
State v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000)).

C. Ineffective Assistance of Counsel

Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the assistance
of counsel. See Davidson v. State, 453 S.W.3d 386, 392 (Tenn. 2014). Inherent in this
right to counsel is the right to the effective assistance of counsel both at trial and on direct
appeal. See Strickland v. Washington, 466 U.S. 668, 686 (1984); Evitts v. Lucey, 469 U.S.
387, 397 (1985). In order to sustain a claim of ineffective assistance of counsel, a petitioner
must prove both that counsel’s performance was deficient and that the deficiency
prejudiced the defense. Strickland, 466 U.S. at 687; see also State v. Taylor, 968 S.W.2d
900, 905 (Tenn. Crim. App. 1997) (noting that the same standard for determining
ineffective assistance of counsel applied in federal cases also applies in Tennessee).
Because a petitioner must establish both elements in order to prevail on a claim of
ineffective assistance of counsel, “failure to prove either deficient performance or resulting
prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at
580. “Indeed, a court need not address the components in any particular order or even
address both if the defendant makes an insufficient showing of one component.” Id. (citing
Strickland, 466 U.S. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996)).

The test for deficient performance is whether “counsel’s acts or omissions were so
serious as to fall below an objective standard of ‘reasonableness under prevailing
professional norms.’” Dean v. State, 59 S.W.3d 663, 667 (quoting Strickland, 466 U.S. at
688). “Counsel’s performance is not deficient if the advice given or the services rendered
‘are within the range of competence demanded of attorneys in criminal cases.’” Davidson,
453 S.W.3d at 393 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
petitioner bears the burden of overcoming “the strong presumption that counsel provided
adequate assistance and used reasonable professional judgment to make all strategic and
tactical significant decisions.” Id. This court will not use hindsight to second-guess a
reasonable trial strategy, even if a different procedure or strategy might have produced a
different result. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). Indeed, “[t]he fact
that a particular strategy or tactic failed or hurt the defense, does not, standing alone,
establish unreasonable representation.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)
(quoting Goad, 938 S.W.2d at 369). “However, deference to matters of strategy and
tactical choices applies only if the choices are informed ones based upon adequate
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preparation.” Id. As the Strickland Court explained, “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.” 466 U.S. at 690-91.

Even if a petitioner shows that counsel’s representation was deficient, the petitioner
must also satisfy the prejudice prong of the Strickland test in order to obtain relief. “An
error by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland,
466 U.S. at 691. The question is “whether counsel’s deficient performance renders the
result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell,
506 U.S. 364, 372 (1993). A petitioner must show that there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694. We note that “[a] ‘reasonable probability’ is a
lesser burden of proof than a ‘preponderance of the evidence.’” Davidson, 453 S.W.3d at
394 (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Indeed, “[t]he result of a
proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the
errors of counsel cannot be shown by a preponderance of the evidence to have determined
the outcome.” Strickland, 466 U.S. at 694.

Like claims of ineffective assistance of trial counsel, claims of ineffective assistance
of appellate counsel are subject to the Strickland standard set forth above. Carpenter v.
State, 126 S.W.3d 879, 886 (Tenn. 2004). In other words, a petitioner must establish both
that appellate counsel was deficient for failing to raise an issue on appeal and that there
was a reasonable probability that had the issue been properly raised, it “would have affected
the result of the appeal.” Campbell v. State, 904 S.W.2d 594, 597 (Tenn. 1995). However,
an attorney is “not constitutionally required to raise every conceivable issue on appeal.”
Carpenter, 126 S.W.3d at 887; see Jones v. Barnes, 463 U.S. 745 (1983). The
determination of which issues to raise is a strategic decision “within appellate counsel’s
sound discretion” and “should be given considerable deference.” Carpenter, 126 S.W.3d
at 887. In evaluating whether the decision to omit a particular issue was an unreasonable
one, this court will consider a non-exhaustive list of factors, such as whether the issue was
“significant and obvious”; whether it was “clearly stronger” than the issues that were
raised; whether there was an objection at trial preserving the issue or whether the issue
would be reviewed for plain error; and whether appellate counsel testified regarding appeal
strategy and provided a reasonable justification for the omission. Id. at 888. Additionally,
the petitioner must establish that the omitted issue had some merit; otherwise, counsel’s
failure to raise it on appeal would not have been deficient and the petitioner would have
suffered no prejudice. Id. at 887-88.

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 III. Petitioner’s Claims Related to Intellectual Disability and Mitigating Evidence

A. Ineligibility for the Death Penalty

In 1990, the General Assembly enacted Tennessee Code Annotated section 39-13-
203, which prohibits the execution of defendants who were intellectually disabled at the
time that they committed first degree murder. See T.C.A. § 39-13-203(b) (2010). Both the
United States and Tennessee Supreme Courts have recognized that the execution of persons
with intellectual disability violates the constitutional guarantee against cruel and unusual
punishment. Atkins v. Virginia, 536 U.S. 304 (2002); Van Tran v. State, 66 S.W.3d 790
(Tenn. 2001). At the time of Petitioner’s direct appeal and post-conviction hearing,
“intellectual disability” was defined by the following criteria:

(1) Significantly subaverage general intellectual functioning as evidenced by
a functional intelligent quotient (I.Q.) of seventy (70) or below;

(2) Deficits in adaptive behavior; and

(3)The intellectual disability must have manifested during the developmental
period, or by eighteen (18) years of age.

T.C.A. § 39-13-203(a) (2010).12 The defendant bears “[t]he burden of production and
persuasion to demonstrate intellectual disability by a preponderance of the evidence[.]”
T.C.A. § 39-13-203(c) (2010).

The post-conviction court found that Petitioner’s stand-alone claim that he is
ineligible for the death penalty due to intellectual disability was previously determined at
trial and on direct appeal. See Pruitt, 415 S.W.3d at 203-04. In his appellate brief,
Petitioner does not dispute this conclusion but instead argues that “due process concerns
overcome the Post-Conviction Procedure Act’s bar on previously determined issues.”
Petitioner further argues that he has satisfied two of the exceptions to the law of the case
doctrine, namely that the evidence of his intellectual disability presented at the post-
conviction hearing is substantially different from that presented at trial and that the prior
ruling that he was not intellectually disabled is clearly erroneous and would result in a
manifest injustice if allowed to stand.

Although previous opinions of this court have cited the law of the case doctrine “to
support a post-conviction court’s refusal to reconsider a previously determined issue, . . .

12
As stated previously, at the time of Petitioner’s trial, Tennessee Code Annotated section 39-13-
203 used the term “mental retardation” instead of “intellectual disability.” In all other respects, the prior
version of the statute was identical.
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[n]o Tennessee court has yet invoked the law of the case doctrine’s exceptions . . . to
support reconsideration of a previously determined issue in the post-conviction context.”
William G. Allen v. State, No. M2009-02151-CCA-R3-PC, 2011 WL 1601587, at *8 (Tenn.
Crim. App., at Nashville, Apr. 26, 2011); see also Harold Wayne Nichols v. State, No.
E2018-00626-CCA-R3-PD, 2019 WL 5079357, at *10 (Tenn. Crim. App., at Knoxville,
Oct. 10, 2019); David Lynn Jordan v. State, No. W2015-00698-CCA-R3-PD, 2016 WL
6078573, at *78 (Tenn. Crim. App., at Jackson, Oct. 14, 2016). While the law of the case
doctrine is a discretionary rule of judicial economy and restraint, the Post-Conviction
Procedure Act’s “bar on reconsideration of previously determined issues is a statutory
limitation of the power of a court.” William G. Allen, 2011 WL 1601587, at *9; see also
Bush v. State, 428 S.W.3d 1, 15-16 (Tenn. 2014) (citing Pike v. State, 164 S.W.3d 257, 262
(Tenn. 2005)) (noting that “post-conviction relief is entirely a creature of statute”).
Moreover, it is well-settled that a post-conviction petitioner “may not relitigate a previously
determined issue by presenting additional factual allegations.” David Lynn Jordan, 2016
WL 6078573, at *78 (quoting Cone, 927 S.W.2d at 582). Thus, because the statute does
not contain any exceptions to the bar on previously determined issues, this court does not
have the authority to recognize an exception based on the law of the case doctrine. William
G. Allen, 2011 WL 1601587, at *9.

Citing cases that applied a due process exception to the post-conviction statute of
limitation, previous opinions of this court have also suggested that “due process concerns
may overcome the rule of previous determination[.]” Phedrek T. Davis v. State, No.
M2009-01616-CCA-R3-PC, 2010 WL 1947379, at *2 (Tenn. Crim. App., at Nashville,
May 14, 2010) (citing Sample v. State, 82 S.W.3d 267 (Tenn. 2002); Wright v. State, 987
S.W.2d 26 (Tenn. 1999); see also William G. Allen, 2011 WL 1601587, at *7. However,
unlike the statute of limitation, which when applied may deprive a petitioner of “an
opportunity for the presentation of claims at a meaningful time and in a meaningful
manner,” Sample, 82 S.W.3d at 272, previously determined issues are those that have
already been considered on their merits after “a full and fair hearing,” T.C.A. § 40-30-
106(h). Thus, by their very definition, previously determined issues satisfy “[t]he
fundamental requirement of due process,” which is “the opportunity to be heard ‘at a
meaningful time and in a meaningful manner.’” House, 911 S.W.2d at 711 (quoting
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)) (emphasis supplied in House); see also
Harold Wayne Nichols, 2019 WL 5079357, at *9.

Petitioner in this case had such an opportunity to present his intellectual disability
claim: a post-trial evidentiary hearing was held where Petitioner was able to present
evidence and argument, and the trial court did not restrict the scope of the hearing or limit
the presentation of evidence. See House, 911 S.W.2d at 711. “Nothing more is required
to satisfy the ‘full and fair hearing’ provision of the previously determined definition.” Id.
Additionally, Petitioner has not alleged any improper conduct on the part of the State that
prevented him from fully presenting his intellectual disability claim at trial. See William
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G. Allen, 2011 WL 1601587, at *8 (“Most commonly, the due process clause is applied in
the context of intentional misconduct on the part of the State to justify relaxation of the
Act’s limiting provisions.”); Phedrek T. Davis, 2010 WL 1847379, at *2. Because
Petitioner “failed to demonstrate how he otherwise was deprived of ‘an opportunity for the
presentation of claims at a meaningful time and in a meaningful manner,’ he failed to show
how due process requires that his case be excepted from the Act’s bar on previously
determined issues.” William G. Allen, 2011 WL 1601587, at *9 (citation omitted).
However, this conclusion does not bar our consideration of Petitioner’s closely related
claim that trial counsel were ineffective in their handling of the intellectual disability issue,
which will be discussed further below.

B. Trial Counsel’s Failure to Develop and Present Evidence of Intellectual Disability

As stated above, the Tennessee Supreme Court concluded on direct appeal that
although Petitioner had established by a preponderance of the evidence that he had
significantly subaverage intellectual functioning as evidenced by an I.Q. of 70 or below,
he failed to carry his burden of proving that he had deficits in adaptive behavior and that
his intellectual disability manifested during the developmental period. Pruitt, 415 S.W.3d
at 203-04. Petitioner contends that trial counsel were ineffective for failing to adequately
investigate and present evidence of his adaptive deficits and manifestation of his
intellectual disability before age eighteen. Petitioner argues that because he meets the
clinical and statutory definition of intellectual disability, he was prejudiced by counsel’s
deficient performance. The State argues that Petitioner “failed to meet his burden of
demonstrating that he had deficits in adaptive behavior and thus failed to show that trial
counsel’s alleged deficiency affected the outcome of the proceedings.”

The post-conviction court concluded that trial counsel rendered deficient
performance in failing to adequately investigate and present evidence regarding
Petitioner’s adaptive deficits. As stated by the post-conviction court,

trial counsel conducted some investigation into the Petitioner’s background
and presented some evidence during trial that counsel could have argued
constituted evidence of deficits in adaptive behavior. However, trial counsel
could have done more to investigate and present evidence of adaptive deficits
to this court at trial. Given Petitioner’s background and social history, such
actions should have included retaining an expert specifically to investigate
and present such evidence, or assigning that task to one of Petitioner’s
previously-retained experts. The proof presented at this hearing likely would
have been available prior to trial. Thus, this court finds that trial counsel’s
actions . . . constituted deficient performance, in the light of the heightened
due process to be applied in capital cases.

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The State does not contest this conclusion by the post-conviction court, and it is supported
by the evidence in the record. Trial counsel seemed to rely exclusively upon the reports
from Dr. Rutledge and MTMHI diagnosing Petitioner with mild mental retardation without
seeking a separate assessment of his adaptive functioning, even though lead counsel
demonstrated his knowledge of adaptive behavior assessments and their importance in
capital cases when he emailed Dr. Rutledge with regard to a separate case. As a result of
counsel’s failure to obtain such an assessment, “little evidence was presented concerning
[Petitioner’s] adaptive behavior” in order to support his intellectual disability claim. Pruitt,
415 S.W.3d at 204. The lack of evidence also hindered Petitioner’s ability to show that
any deficits manifested during the developmental period. Id. It is professionally
unreasonable for trial counsel to present an intellectual disability defense but fail to even
attempt to develop evidence supporting two of the three statutory criteria when the statute
clearly places “[t]he burden of production and persuasion” upon the defendant. T.C.A. §
39-13-203(c) (2010). Thus, we agree with the post-conviction court that trial counsel
rendered constitutionally deficient performance in this regard.

The post-conviction court found that Petitioner failed to establish that he had deficits
in adaptive behavior within the meaning of the intellectual disability provisions in
Tennessee Code Annotated section 39-13-203 and that, as a result, Petitioner failed to
establish that trial counsel’s deficient performance resulted in prejudice. Tennessee Code
Annotated section 39-13-203 does not define the phrase “deficits in adaptive behavior,”
but the Tennessee Supreme Court has construed it to mean “the inability of an individual
to behave so as to adapt to surrounding circumstances.” Coleman v. State, 341 S.W.3d
221, 235 (Tenn. 2011) (quoting State v. Smith, 893 S.W.2d 908, 918 (Tenn. 1994)). In
other words, adaptive functioning “refers to how effectively individuals cope with common
life demands and how well they meet the standards of personal independence expected of
someone in their particular age group, socio-cultural background, and community setting.”
Id. at 236 (quoting Van Tran, 66 S.W.3d at 795). Tennessee courts generally “rel[y] upon
expert analysis of adaptive behavior or functioning predicated upon definitions advanced
within the relevant medical and psychological community and authoritative texts such as
the AAIDD Manual and the DSM[ ] in determining whether the second prong has been
satisfied.” Id. at 248. This court has recognized that “[t]he adaptive behavior criteria are
exceedingly subjective, and, undoubtedly, experts will be found to offer opinions on both
sides of the issue in most cases.” Heck Van Tran v. State, No. W2005-01334-CCA-R3-
PD, 2006 WL 3327828, at *23 (Tenn. Crim. App., at Jackson, Nov. 9, 2006). “In the final
analysis, the trial court is not required to follow the opinion of any particular expert, but
must give full and fair consideration to all the evidence presented[.]” Coleman, 341
S.W.3d at 242 (internal citation omitted).

In its order denying post-conviction relief, the post-conviction court stated that
Petitioner presented proof, primarily through Dr. Everington’s testimony but also through
the testimony of Dr. Auble and lay witnesses, regarding facts “which could be seen as
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deficits in adaptive behavior under both the three-domain approach adopted by the AAIDD
and the DSM-5 and the eleven-factor test provided in the DSM-IV and cited in most
Tennessee appellate opinions addressing this subject.” The court found Dr. Everington’s
testimony to be “credible and informative.” The court also found Dr. Johnson’s testimony,
which rebutted Petitioner’s evidence, to be “equally credible and informative.” The post-
conviction court acknowledged that Dr. Everington testified that the AAIDD placed “little
weight” on the self-reporting of adaptive skills and that Petitioner’s demonstration of
adaptive skills in a prison environment may not accurately reflect his adaptive skills in a
real-world environment. However, the court found that the adaptive screening conducted
by Dr. Johnson, which included Petitioner’s answers to ABAS-related questions, should
not be discounted. The court found that Dr. Johnson’s testing suggested that Petitioner was
capable of performing certain tasks related to adaptive skills and independent living and
that, as a result, the “supposed adaptive deficits” identified by Dr. Everington may not be
as significant as post-conviction counsel suggested, especially if Petitioner was not under
the influence of marijuana or cocaine.

The post-conviction court expressed concerns regarding some of the standardized
skills testing administered by the experts. The court noted the “nonstandard”
administration of the ABAS by both Dr. Everington and Dr. Johnson and explained that
Dr. Everington used the responses of multiple people to produce one ABAS result and that
Dr. Johnson did not provide a copy of the ABAS questions to Ms. Rocket in administering
the test to her. The court stated that although it considered the results of the testing, “the
utility of these results is limited.”

The post-conviction court found that “despite the growing trend in death penalty
mitigation to incorporate ‘cultural competency’ into the capital defense case,” the ABAS
and ILS tests administered in this case were normed to the general population rather than
to the environment in which Petitioner lived prior to his incarceration. The court stated
that based upon the testimony of Dr. Everington and Dr. Johnson, some tasks referenced
in the ABAS and ILS were “not necessarily typical among persons growing up in inner-
city Memphis generally and the Fowler Homes development in particular.” The court
found that if Petitioner grew up in an environment where people commonly did not have a
driver’s license, did not use a library, and used check-cashing businesses to cash paychecks
rather than banks, the inability to perform such tasks should be not considered an adaptive
deficit. The court stated that “the experts’ testimony suggests Petitioner is far from the
only person who has had difficulty navigating the Memphis public transportation system.”
The court also stated that according to Dr. Johnson’s testimony, avoiding potentially
difficult or dangerous situations in Fowler Homes would have been problematic because
such situations were “apparently prevalent” in that area. The court found that Petitioner’s
decision to associate with the criminal element at Fowler Homes and Lemoyne Gardens
“may have represented an attempt by Petitioner to seek out some sense of protection and/or

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comfort in light of his other difficulties rather than an intentionally detrimental choice on
Petitioner’s part.”

The post-conviction court noted that Dr. Everington acknowledged that she did not
interview some of the informants referenced in her testimony and report but, instead, relied
upon summaries of interviews provided by post-conviction counsel. The court stated that
because many of these informants did not testify at the post-conviction hearing, the court
was unable to assess the credibility of the informants or to determine whether “the
informants had a motive to respond to the Petitioner’s legal team as they did (i.e., if they
shaped their answers in such a fashion as to improve Petitioner’s changes of being declared
ineligible for the death penalty).”

The post-conviction court rejected Dr. Everington’s testimony in which she
maintained that the failure to perform tasks constituted proof of adaptive deficits regardless
of whether the person’s failure was due an unwillingness rather than an inability to perform.
Instead, the court relied upon Dr. Johnson’s testimony that several of the purported
adaptive deficits identified by post-conviction counsel reflected tasks that the Petitioner
may have been able to complete but had not necessarily been required to complete. The
court noted Dr. Johnson’s testimony that Petitioner might have been capable of washing
his clothes, cleaning his home, and shopping for groceries and household items but that
others with whom he had lived performed the tasks. The court determined that Petitioner’s
choice to allow others to perform such tasks or his being ordered not to perform such tasks
“should not necessarily be perceived as an adaptive deficit.” The court stated that although
Petitioner reportedly wore urine-soaked clothes to school while others in the home wore
clean clothes, no proof was presented regarding the frequency with which this occurred.
The court also noted that no evidence was presented regarding whether Petitioner had other
clothes available, whether he was taught how to clean his clothes, or whether he requested
that his clothes be cleaned and his requests were denied.

The post-conviction court found that “some of the purported evidence of Petitioner’s
adaptive deficits was undermined by other evidence introduced at this hearing.” The court
stated that although Dr. Everington testified that Petitioner did not have any friends other
than family members in his youth, her report identified some of the informants as non-
family friends, and other non-family friends of Petitioner testified at the post-conviction
hearing. The court stated that Dr. Johnson’s testimony that when Petitioner called 911 after
his mother was stabbed when he was nine years old suggested that Petitioner “knew how
to use at least some community resources.” The court also stated that “while Petitioner
may on at least one occasion been taken advantage of while performing on Beale Street,
Petitioner at the very least took the initiative to perform backflips and beg for food on Beale
Street to obtain money and food which were not being provided at home.”

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 The post-conviction court noted that Petitioner presented “substantial proof”
regarding his poor educational performance and alleged that this poor performance was
related to several adaptive deficits, including those in the conceptual domain. The court
found that Petitioner did well in school during his younger years and that his poor academic
performance during his middle school years coincided with his increased drug use and his
involvement with the juvenile justice system. The court described evidence regarding
allegations of grade and standardized test score inflation at Petitioner’s elementary school
as “anecdotal at best” and as “coming from a witness who did not recall [P]etitioner and
testified that she did not adjust his grades.” The court found that no evidence was presented
to allow the court to conclude that Petitioner’s grades and tests scores were subject to
inflation by any of his teachers or the school system. The court also found that

Petitioner’s coherent interviews during the Gangland television episode, his
answers to Dr. Johnson’s questions during their interview, and his results on
certain academic skills testing administered by Dr. Johnson, test results
which were generally below normal but which Dr. Johnson stated were above
those typically produced by intellectually disabled persons, suggest that if
such deficits did exist, they were not nearly as severe as Petitioner suggests.

The post-conviction court found that although Petitioner presented “significant
proof of what he deemed to be deficits in adaptive behavior,” the State “presented equally
significant proof to rebut the Petitioner’s proof.” The court concluded that “if the evidence
produced by the Petitioner at this hearing substantiates adaptive deficits, such deficits
would be not significant enough to meet the adaptive deficit prong of the intellectual
disability test.” The court found that as a result, Petitioner “failed to establish, by a
preponderance of the evidence, that he suffers from deficits in adaptive behavior within the
meaning of the intellectual disability statute.” The court also found that, had Petitioner
presented evidence of adaptive deficits during the trial proceedings that resembled the
evidence presented during the post-conviction hearing, “there is not a reasonable
probability that this proof, in light of the State’s rebuttal proof presented both at this post-
conviction hearing and at trial, would have led this court to conclude that Petitioner
suffered from deficits in adaptive behavior.” The court concluded that trial counsel’s
deficiency in failing to present such evidence at the trial level did not result in prejudice.

Petitioner argues that the post-conviction court failed to consider or give weight to
Dr. Auble’s testimony; gave insufficient weight to Dr. Everington’s testimony based upon
her qualifications, which Petitioner claims were greater than those of Dr. Johnson; and
failed to credit Dr. Everington’s non-standard, retrospective use of standardized tests as
acceptable in controlled circumstances. Petitioner maintains that the post-conviction court
erred in relying on Dr. Johnson’s testimony, arguing that Dr. Johnson improperly
discounted certain deficits as caused by mental illness; focused on Petitioner’s strengths
rather than his deficits; discounted deficits based on whether Petitioner could perform
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certain tasks rather than whether he actually did perform the tasks; relied upon Petitioner’s
self-reporting of strengths and deficits; and relied upon Petitioner’s improved behavior
while in prison. Petitioner relies upon three opinions from the United States Supreme
Court, Hall v. Florida, 572 U.S. 701 (2014); Moore v. Texas, 137 S.Ct. 1039 (2017)
(“Moore I”); and Moore v. Texas, 139 S.Ct. 666 (2019) (“Moore II”), all of which were
decided after Petitioner’s trial and direct appeal concluded.

Since Petitioner’s trial, the Tennessee Supreme Court and the United States
Supreme Court have issued opinions developing the law regarding intellectual disability,
including adaptive deficits. The Tennessee Supreme Court addressed the issue in Coleman,
341 S.W.3d at 248, an opinion released after Petitioner’s trial and while Petitioner’s direct
appeal was pending. In Coleman, the petitioner presented testimony from various experts,
who concluded that the petitioner was intellectually disabled, and the State presented no
witnesses and only briefly cross-examined the petitioner’s experts. Coleman, 341 S.W.3d
at 227. Both the post-conviction court and this court recognized that the petitioner had
deficiencies but attributed the cause of the deficiencies to sources other than intellectual
limitations, including the petitioner’s history of mental illness. Id. at 249. In other words,
both the post-conviction court and this court had treated the petitioner’s mental illness and
intellectual disabilities “as separate dichotomous spheres rather than as interwoven
causes.” Id. at 249.

The Tennessee Supreme Court held that a court’s application of the intellectual
disability statute should “be guided and informed by the clinical standards, criteria, and
practices customarily used to assess and diagnose intellectual disability.” Id. at 240. Our
supreme court noted that according to the DSM-4TR, “‘[a]daptive functioning may be
influenced by various factors, including education, motivation, personality characteristics,
social and vocational opportunities, and the mental disorders and general medical
conditions that may coexist with [m]ental [r]etardation.’” Id. at 249-50 (quoting American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 42 (4th
ed. text rev. 2000)). However, the Coleman court also recognized that mental health
experts had differing views on whether deficits in adaptive behavior were required to be
directly attributable to significantly subaverage intellectual functioning. Id. at 250-52. The
court stated that it need not decide the appropriate approach to employ and instead held
that distinguishing causally between intellectual disability and mental illness was error in
the petitioner’s case in light of the unrebutted testimony from the petitioner’s experts that
his intellectual disability and mental illness were interrelated and aggravated each other,
combining to limit his adaptive functioning. Id. at 252. The court held that in light of the
expert testimony, there was not a sufficient basis to support the reasoning of the post-
conviction court and this court in separating the impact of mental illness and intellectual
disability in assessing the petitioner’s deficits in adaptive behavior. Id. Rather, “[b]ased
on the evidence presented, [the petitioner’s] intellectual disability and mental illness are
simply too intertwined in cause and effect for such unraveling.” Id.
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 In 2014, after Petitioner’s direct appeal proceedings had concluded, the United
States Supreme Court released its opinion in Hall v. Florida, striking down the Florida
Supreme Court’s interpretation of the “significantly subaverage general intellectual
functioning” requirement as excluding those with I.Q. test scores above 70. 572 U.S. at
711-12. The Court stated that even if “the views of medical experts” do not “dictate” a
court’s determination regarding intellectual disability, the determination must be
“informed by the medical community’s diagnostic framework.” Id. at 721. The Court
relied on DSM-5 and AAIDD-11, the then-current versions of the leading diagnostic
manuals, and concluded that the Florida court had violated the Eighth Amendment by
“disregard[ing] established medical practice.” Id. at 712-14, 722-23. As the Court later
recognized, “Hall indicated that being informed by the medical community does not
demand adherence to everything stated in the latest medical guide. But neither does our
precedent license disregard of current medical standards.” Moore I, 137 S.Ct. at 1049.

In Moore I, the Court reversed the Texas Court of Criminal Appeals’ (“TCCA”)
holding that the petitioner was not intellectually disabled based, in part, on the TCCA’s
deviation “from prevailing clinical standards and from the older clinical standards the court
claimed to apply” when finding no adaptive deficits. Id. at 1050. The TCCA reversed a
state habeas court that applied the current medical standards, the DSM-5 and AAIDD-11,
in determining that the petitioner was intellectually disabled. Id. at 1045-46. The TCCA
instead reaffirmed its holding in a prior case, Ex parte Briseno, in which the TCCA had
adopted the definition and standards for assessing intellectual disability included in the
1992 edition of the American Association on Mental Retardation (“AAMR”) manual, the
predecessor to the AAIDD-11 manual; incorporated the AAMR’s requirement that
adaptive deficits be “related” to intellectual functioning deficits; and set forth “seven
evidentiary factors” to be considered in determining whether a defendant has satisfied the
relatedness requirement. Id. at 1046 (citing Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim.
App. 2004)).

In Moore I, the Supreme Court determined that TCCA acted improperly when it
“overemphasized [the petitioner’s] perceived adaptive strengths,” including the
petitioner’s living on the streets, mowing lawns, and playing pool for money, and when it
concluded that, “in the [T]CCA’s view,” the petitioner’s adaptive strengths overcame “the
considerable objective evidence” of the petitioner’s adaptive deficits. Id. at 1050. The
Supreme Court stated that “the medical community focuses the adaptive-functioning
inquiry on adaptive deficits.” Id. (citing American Association on Intellectual and
Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems
of Support (11th ed. 2010);American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (5th ed. 2013)) (emphasis in original). The majority opinion
noted that the dissenting opinion suggested a disagreement in medical authorities about the
role of adaptive strengths in the adaptive-functioning inquiry. Id. at n.8. The majority
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opinion stated that even if clinicians considered adaptive strengths and adaptive
weaknesses within the same adaptive-skill domain, Texas and the dissent did not identify
“any clinical authority permitting the arbitrary offsetting of deficits against unconnected
strengths in which the [T]CCA engaged.” Id.

The Supreme Court held that the TCCA improperly “stressed” the petitioner’s
improved behavior in prison when clinicians caution against relying upon adaptive
strengths in a controlled setting, such as a prison. Id. at 1050 (citing DSM-5, at 38;
AAIDD-11 User’s Guide, at 20). The Court also held that the TCCA improperly concluded
that the petitioner’s record of academic failure and childhood abuse “detracted from a
determination that his intellectual and adaptive deficits were related” when the medical
community considered traumatic experiences to be “‘risk factors’ for intellectual
disability.” Id. at 1051 (citing AAIDD-11, at 59-60) (emphasis in original). The Court
determined that the TCCA “departed from clinical practice” in requiring the petitioner to
establish that his adaptive deficits were not related to a personality disorder when mental
health professionals recognized that many who are intellectually disabled also have
personality disorders or mental health issues and that the existence of such issues is not
evidence that a person is not intellectually disabled. Id. (citing DSM-5, at 40; AAIDD-11,
at 58-63).

Finally, the Court held that the TCCA erred in relying upon the seven evidentiary
factors set forth in Briseno, where the court had “advanced lay perceptions of intellectual
disability.” Id. at 1051-52. The Court concluded that “[b]y rejecting the habeas court’s
application of medical guidance and clinging to the standard it laid out in Briseno,
including the wholly nonclinical Briseno factors, the [T]CCA failed adequately to inform
itself of the ‘medical community’s diagnostic framework.’” Id. at 1053 (quoting Hall, 572
U.S. at 721). We note that some opinions of this court also cited to the Briseno factors in
analyzing the adaptive deficits element of intellectual disability. See Michael Wayne
Howell v. State, No. W2009-02426-CCA-R3-PD, 2011 WL 2420378, at *18 (Tenn. Crim.
App., at Jackson, June 14, 2011), abrogated by Moore I, 137 S.Ct. at 1052; Michael Angelo
Coleman v. State, No. W2007-02767-CCA-R3-PD, 2010 WL 118696, at *24 (Tenn. Crim.
App., at Jackson, Jan. 13, 2010), rev’d 341 S.W.3d 221 (Tenn. 2011); Heck Van Tran, 2006
WL 3327828, at *24. However, the Tennessee Supreme Court did not apply the Briseno
factors in Coleman or in its opinion in Petitioner’s direct appeal. See Pruitt, 415 S.W.3d
at 203-04; Coleman, 341 S.W.3d at 248-53. Furthermore, this court did not cite to the
Briseno factors in either our opinion in Petitioner’s direct appeal nor subsequent opinions.
See, e.g. Sidney Porterfield v. State, No. W2012-00753-CCA-R3-PD, 2013 WL 3193420,
at *25-27 (Tenn. Crim. App., at Jackson, June 20, 2013); Corinio Pruitt, 2011 WL
2417856, at *27-28.

On remand following Moore I, the TCCA again determined that the petitioner failed
to demonstrate intellectual disability, and the United States Supreme Court again reversed
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the TCCA’s decision. Moore II, 139 S.Ct. at 667. The Court noted too many instances in
which the TCCA repeated, with small variances, the same analysis that the Court had
determined in Moore I to be flawed. Id. at 670. The Court stated that the TCCA continued
to rely less upon the petitioner’s adaptive deficits, which had been cited by the state habeas
court, than upon the petitioner’s apparent adaptive strengths. Id. The TCCA emphasized
the petitioner’s capacity to communicate, read, and write based in part upon papers that the
petitioner filed pro se in court, and the Court stated that while such evidence was relevant,
it lacked “convincing strength” absent a determination that petitioner wrote the papers on
his own. Id. at 671. The Court also stated that the TCCA continued to rely heavily upon
the petitioner’s adaptive improvements made while in prison and continued to conclude
that the petitioner failed to show that the “‘cause of [his] deficient social behavior was
related to any deficits in general mental abilities’ rather than ‘emotional problems.’” Id.
Finally, the Court determined that despite the TCCA’s statement that it was abandoning its
reliance on the Briseno factors, the TCCA seemingly used many of the factors in reaching
its conclusion. Id.

Although the Tennessee Supreme Court issued its opinion in Coleman after
Petitioner’s trial, this court and the Tennessee Supreme Court applied Coleman to
Petitioner’s intellectual disability claim on direct appeal. See Pruitt, 415 S.W.3d at 202-
04; Corino Pruitt, 2011 WL 2417856, at *25-27. Thus, we will apply Coleman in
determining whether trial counsel’s failure to present evidence related to the adaptive
deficits element of the intellectual disability statute resulted in prejudice. Whether this
court also should apply the opinions of the United States Supreme Court issued years after
Petitioner’s trial and direct appeal concluded is not as clear. At the time of Petitioner’s
trial, the controlling Supreme Court authority was Atkins v. Virginia, which gave no
comprehensive definition of intellectual disability and left the task of developing
appropriate means of enforcing the constitutional restrictions to the states. See 536 U.S. at
317. The Supreme Court recently rejected the Sixth Circuit’s conclusion that Moore I’s
holding was “merely an application of what was clearly established by Atkins.” Shoop v.
Hill, 139 S.Ct. 504, 508 (2019) (internal quotations omitted). In doing so, the Supreme
Court reversed the Sixth Circuit’s conclusion that a state court’s decision that a defendant
failed to establish intellectual disability violated “clearly established law” set forth in
Moore I even though the state court’s decision predated Moore I by several years. Id. at
506-08. The Supreme Court explained that although “Atkins noted that standard definitions
of mental retardation included as a necessary element ‘significant limitations in adaptive
skills . . . that became manifest before age [eighteen],’ . . . Atkins did not definitively resolve
how that element was to be evaluated but instead left its application in the first instance to
the States.” Id. at 508 (quoting Atkins, 536 U.S. at 317-18). Because the Supreme Court’s
opinions issued after Petitioner’s trial and direct appeal were not merely an application of
law clearly established by Atkins, it does not appear that these opinions are applicable to
this court’s determination regarding the effect of the evidence of adaptive deficits presented
at the post-conviction hearing had trial counsel presented similar evidence at trial.
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Nevertheless, the overarching principles set forth by the Supreme Court are similar to those
expressed by the Tennessee Supreme Court in Coleman in that a trial court’s findings
should be guided by expert testimony and clinical standards and practices customarily used
to diagnose intellectual disability.13

We conclude that the post-conviction court’s findings did not run afoul of Hall,
Moore I, and Moore II if these cases apply in the ineffective assistance of counsel context.
Unlike the TCCA in Moore I and Moore II, which rejected expert testimony based upon
current medical standards and instead made its own findings based upon outdated standards
and factors based upon lay perceptions of intellectual disability, the post-conviction court
here relied upon contemporary medical expert testimony, weighed the evidence, made
credibility determinations, and concluded that Petitioner failed to establish that he had
deficits in adaptive behavior. See Wright v. State, 256 So.3d 766, 777 (Fla. 2018)
(upholding a trial court’s findings regarding adaptive deficits when, unlike the TCCA in
Moore I, the trial court’s findings were based upon expert testimony regarding
contemporary medical standards). Although Petitioner asserts that the post-conviction
court failed to consider Dr. Auble’s testimony, the post-conviction court acknowledged
that Dr. Auble testified about adaptive deficits but found the testimony of Dr. Everington
and Dr. Johnson to be “credible and informative,” thus essentially finding their testimony
to be more credible and carry more weight than Dr. Auble’s testimony. This finding
regarding witness credibility and the weight and value of the testimony was within the
exclusive purview of the post-conviction court, and this court is without authority to
overturn this finding. See Henley, 960 S.W.2d at 578-79. Petitioner also claims that Dr.
Everington was more qualified than Dr. Johnson and that the post-conviction court should
have given Dr. Everington’s testimony greater weight as a result. However, the post-
conviction court’s decision regarding the weight afforded to the testimony of each expert
also was within the court’s exclusive purview. See id.

Dr. Everington’s conclusions regarding all three domains of adaptive functioning
relied, in part, upon the results of her administration of the ABAS. However, the post-
conviction court found that the results of the test were of limited value because Dr.
Everington utilized a nonstandard administration of the ABAS by using the responses of
three people to produce one result. The conflicting testimony regarding the reliability of
the results of the ABAS administered by Dr. Everington raised a credibility issue, and this
court may not second-guess the post-conviction court’s credibility determination relating
to the competing opinions of mental health experts. See Carroll v. State, 300 So.3d 59, 71

13
Although there was a change in the clinical standards for assessing adaptive deficits under the
DSM-4TR in use at the time of Petitioner’s trial and the DSM-5 in use at the time of the post-conviction
hearing, all of the experts testified that they would have reached the same conclusion regarding Petitioner’s
intellectual disability under either standard. Thus, we agree with the post-conviction court’s finding that
“[i]t seems unlikely that a person with adaptive deficits would be considered intellectually disabled under
the DSM-[4]TR and not intellectually disabled under DSM-5, and vice versa.”
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(Ala. 2019) (recognizing that competing expert opinions regarding the reliability of a test
used to measure adaptive functioning raised a credibility issue and that the appellate court
was without authority to second-guess the trial court’s credibility determination). The post-
conviction court noted that Dr. Everington relied upon some informants whom she did not
personally interview and that many of these informants did not testify at the post-conviction
hearing. Thus, the post-conviction court was unable to assess the credibility of these
informants or to determine whether the informants had a motive to provide specific
responses to Petitioner’s legal team – “(i.e., if they shaped their answers in such a fashion
as to improve Petitioner’s chances of being declared ineligible for the death penalty).” The
post-conviction court’s concern was supported by Dr. Johnson’s testimony that Ms.
Rockett informed her that Petitioner’s defense team told her that the information she
provided could help Petitioner avoid the death penalty.

Petitioner has not established that the evidence in the record preponderates against
the post-conviction court’s finding that he does not have deficits in adaptive behavior
within the meaning of Tennessee Code Annotated section 39-13-203(b)(2) (2010).
Applying the current diagnostic standards for intellectual disability, Petitioner was required
to establish that he had significant limitations in at least one of three domains of adaptive
functioning—conceptual, social, and practical. See DSM-5 at 37-38; AAIDD-11 at 43-44.
The conceptual domain of adaptive functioning includes such skills as functional
academics and memory. See DSM-5 at 37-38; AAIDD-11 at 43-44. The social domain of
adaptive functioning includes such skills as communication, social skills, and
understanding of social situations. See DSM-5 at 37-38; AAIDD-11 at 43-44. The
practical domain of adaptive functioning includes such skills as daily living, personal care,
vocational skills, and recreation. See DSM-5 at 37-38; AAIDD-11 at 43-44.

Turning to each specific domain, the evidence relating to the conceptual domain
reflects that although Petitioner repeated the first grade, he performed well academically
throughout the rest of elementary school. While attending Larose Elementary, Petitioner
consistently made A’s and B’s, had standardized tests scores as high as the ninety-eighth
percentile, and often made the honor roll and principal’s list. Several teachers commented
on his report card that Petitioner was “smart” and “a good learner,” and there was no
evidence that Petitioner was enrolled in special education or resource classes. Although
Dr. Everington speculated that Petitioner’s grades and standardized test scores may have
been inflated, there was no direct evidence to support this supposition.

Petitioner’s grades and test scores then declined suddenly in the seventh and eighth
grades, and Petitioner dropped out of school. The post-conviction court found that
Petitioner’s decline in grades coincided with Petitioner’s increased drug use and
involvement in the juvenile court system. Both Moore I and Coleman caution a court
against faulting a defendant for failing to establish that an adaptive deficit is related to the
defendant’s deficits in intellectual functioning. See Moore I, 137 U.S. at 1050; Coleman,
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341 S.W.3d at 249-52. However, the evidence in this case, unlike in Moore I and Coleman,
included testimony from both Dr. Everington and Dr. Johnson that the DSM-5 includes a
provision requiring that adaptive deficits be directly related to intellectual impairments.
Dr. Everington maintained that the AAIDD Manual, which did not include such a
requirement, was the proper standard, while Dr. Johnson maintained that the DSM-5
provided the appropriate standard. The post-conviction court, through its findings, credited
Dr. Johnson’s testimony and applied the standard set forth in the DSM-5. Furthermore,
the post-conviction court’s findings were supported by Dr. Johnson’s conclusion in her
report that Petitioner’s performance in the classroom and on standardized tests from his
second year in the first grade through the fifth grade was “inconsistent” with those who are
intellectually disabled and suggested that “some other variable(s)” were related to his lower
grades during middle school. Dr. Johnson, like the post-conviction court, observed that
Petitioner’s lower academic performance coincided with Petitioner’s increased drug use.

The record reflects that Petitioner obtained average or low average scores on
achievement tests administered by both Dr. Everington and Dr. Johnson. Dr. Johnson
testified that the Petitioner’s test scores were “above what you would expect from someone
with an intellectual disability,” and Dr. Everington admitted that Petitioner’s academic
skills were “more advanced than the majority of individuals who have an intellectual
disability.” Although Petitioner scored poorly on a test that required him to interpret
proverbs administered by Dr. Auble, Dr. Johnson testified that Petitioner’s use of an
analogy during his Gangland interview demonstrated “more complicated thinking” than
would be expected of someone with an intellectual disability. Dr. Johnson stated that
although intellectually disabled individuals often have problems recalling their history in a
comprehensive manner and “putting together timeframes,” Petitioner was able to
accurately recall his medical history, childhood, and educational history. Dr. Johnson did
not observe any “striking abnormalities” in Petitioner’s ability to recall and provide
information relative to the events in his life. In light of the post-conviction court’s factual
findings and credibility determinations, we conclude that Petitioner failed to establish that
he has significant deficits in the conceptual domain.

With respect to the social domain of adaptive functioning, we note that in addition
to the post-conviction court’s general findings with respect to Dr. Everington’s
nonstandard administration of the ABAS and reliance upon summaries of interviews
provided by post-conviction counsel, the court found that some of the “purported evidence”
of Petitioner’s adaptive deficits was “undermined” by other evidence introduced during the
evidentiary hearing. The court found that although Dr. Everington testified that
Petitioner’s only friends in his youth were family members, her report identified some of
the informants as non-family friends, and some of Petitioner’s non-family friends testified
at the evidentiary hearing. Dr. Johnson testified that some of her observations of Petitioner
conflicted with the ratings obtained by Dr. Everington in her administration of the ABAS.
Dr. Johnson said Petitioner displayed good social skills during the interview, such as
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pouring water for her and offering food to her when he received his lunch, even though Dr.
Everington’s report reflected that Petitioner had been rated as “never or almost never”
offering food or beverages to guests. Although Petitioner was rated as “sometimes”
speaking clearly and distinctly and “never or almost never” listening closely for more than
five minutes, Dr. Johnson did not experience any issues with Petitioner in these areas.
Petitioner also was rated as “never or almost never” participating in conversations without
talking too much or too little, but Dr. Johnson found that while some of Petitioner’s answers
were “abbreviated,” he was able to elaborate when prompted. Dr. Everington testified that
Petitioner displayed basic social skills and was friendly, and Dr. Johnson testified that
Petitioner listened closely when someone else was speaking, discussed a current event, and
waited for others to finish speaking without interrupting. Although Dr. Everington testified
that Petitioner had difficulty avoiding social situations that might be dangerous, the post-
conviction court credited Dr. Johnson’s testimony that avoiding potentially dangerous
situations would have been difficult for Petitioner because such situations were prevalent
in the neighborhood in which Petitioner was raised.

The Petitioner argues that the post-conviction court and Dr. Johnson improperly
focused on his adaptive strengths rather than his adaptive deficits. The Supreme Court in
Moore I observed that there was no “clinical authority permitting the arbitrary offsetting
of deficits against unconnected strengths,” but the Court also assumed for the sake of
analysis that “clinicians would consider adaptive strengths alongside adaptive weaknesses
within the same adaptive skill domain.” Moore I, 137 S.Ct. at 1050 n.8. Dr. Johnson,
whose opinions upon which many of the post-conviction court’s findings were based, did
not balance unconnected strengths against weaknesses but, instead, weighed evidence of
Petitioner’s strengths against evidence of his limitations within the same domain to
determine whether Petitioner had significant adaptive deficits within that particular
domain. See Sasser v. Payne, 999 F.3d 609, 619-20 (8th Cir. 2021) (holding that the district
court’s weighing of evidence of related strengths and weaknesses to determine whether the
defendant met his burden of establishing an adaptive deficit in a single skill domain did not
run afoul of Moore I); Wright, 256 So.3d at 777 (holding that unlike the TCCA in Moore
I, the court “did not arbitrarily offset deficits with unconnected strengths” but, instead,
relied upon expert testimony regarding connected adaptive deficits and strengths and
credibility determinations made by the lower court).

Although Dr. Johnson agreed that the AAIDD Manual cautioned against relying
exclusively on an individual’s self-report of adaptive deficits as that individual may attempt
to appear more competent than he or she actually is, Dr. Johnson did not believe this
concern was necessarily warranted for defendants in the criminal justice system. The
record also established that Dr. Johnson did not rely exclusively upon Petitioner’s self-
report to reach her conclusion that Petitioner had “mild deficits” that did not rise to the
level of significant deficits in adaptive functioning. In light of the post-conviction court’s
factual findings in which the court made credibility determinations and resolved conflicts
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in the competing expert testimony, we conclude that the evidence does not preponderate
against the post-conviction court’s finding that Petitioner failed to establish that he has
significant deficits in the social domain. As it applies to the practical domain of adaptive
functioning, the post-conviction court found that even if Petitioner had some adaptive
deficits, such deficits did not amount to significant adaptive deficits such that Petitioner
met the adaptive deficits requirement of the intellectual disability statute. The post-
conviction court’s finding is supported by Dr. Johnson’s conclusion in her report that
although “some mild deficits in adaptive functioning were noted,” these mild deficits
“appear[ed] consistent with either deficits displayed by some individuals with [b]orderline
intellectual functioning or the behavior exhibited by individuals in similar sociocultural
circumstances.” Based upon Dr. Johnson’s testimony, the post-conviction court found that
due to the sociocultural environment in which he was raised, Petitioner should not be
faulted for not having a driver’s license, not using a library, cashing paychecks at check-
cashing businesses rather than a bank, and for having difficulty with the Memphis public
transportation system. Additionally, the post-conviction court did not accredit Dr.
Everington’s testimony that Petitioner’s failure to perform some household chores was
evidence of an adaptive deficit regardless of whether Petitioner was unable or simply
unwilling to perform the tasks. Instead, the court accredited Dr. Johnson’s testimony that
Petitioner may have been able to perform the tasks but did not do so because someone else
completed the tasks for him. Ms. Rockett told Dr. Johnson that when Petitioner lived with
her, Petitioner offered to help her around the house and that she knew he was able to
perform the chores because he had done so while living with her mother. Ms. Rockett did
not want Petitioner to help her because she wanted the chores “done a certain way” and
preferred “to do it herself in her home.” The post-conviction court also discounted Dr.
Everington’s testimony about Petitioner’s wearing urine-soaked clothes to school, finding
that there was no evidence whether the incident was a common or infrequent occurrence
and whether Petitioner had other clothes available, was taught how to clean his clothes, or
requested to have his clothes cleaned and his request was denied.

The record indicates that in the short amount of time Petitioner lived in the
community between periods of incarceration, he found employment through a temporary
agency and worked at Patterson Warehouse for several months. Although Ms. McMillan
described issues with Petitioner’s job performance, Dr. Johnson testified that it was unclear
whether Petitioner’s poor job performance was the result of issues with intellectual
functioning or his drug use. Petitioner lost his job due to abuse of break time or an
argument with a supervisor rather than due to poor job performance. In light of the post-
conviction court’s factual findings and credibility determinations resolving conflicts in the
competing expert testimony, we conclude that Petitioner failed to establish that he has
significant deficits in the practical domain.

Because we have determined that Petitioner failed to establish that he had deficits
in adaptive behavior in accordance with Tennessee Code Annotated section 39-13-
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203(b)(2) (2010), we need not determine whether the intellectual disability manifested
during the developmental period pursuant to subsection (b)(3). Rather, we conclude that
Petitioner has failed to demonstrate a reasonable probability that, but for trial counsel’s
deficient performance, the result of the proceedings would have been different.
Accordingly, Petitioner is not entitled to relief regarding this issue.

C. Qualification of State’s Expert Witness

Petitioner argues that the post-conviction court erred in accepting Dr. Tucker
Johnson as an expert witness under Tennessee Rule of Evidence 702 because she lacked
specialized knowledge or experience in administering retrospective adaptive behavior
assessments in the context of an Atkins claim. Additionally, Petitioner argues that Dr.
Johnson’s opinion should have been excluded under Tennessee Rule of Evidence 703
because her methodology in collecting the underlying facts and data was not reliable. The
State responds that “the post-conviction court acted well within its discretion in allowing
Dr. Johnson’s testimony.” Additionally, the State contends that the post-conviction court
did not rely solely on Dr. Johnson’s conclusion that Petitioner was not intellectually
disabled, but instead found that Petitioner had failed to carry his burden of proof of showing
that he was prejudiced by trial counsel’s failure to present evidence of his adaptive deficits.

“Questions regarding the qualifications, admissibility, relevancy, and competency
of expert testimony are matters left within the broad discretion of the trial court,” and a
trial court’s ruling will not be overturned absent an abuse of discretion. State v. Stevens,
78 S.W.3d 817, 832 (Tenn. 2002) (citing McDaniel v. CSX Transportation, Inc., 955
S.W.2d 257, 263-64 (Tenn. 1997); State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)).
“[A]n appellate court should find an abuse of discretion when it appears that the trial court
applied an incorrect legal standard, or reached a decision which is against logic or
reasoning that caused an injustice to the party complaining.” Id. (quoting State v. Shuck,
953 S.W.2d 662, 669 (Tenn. 1997)).

1. Rule of Evidence 702

Pursuant to Rule of Evidence 702, a witness may be qualified as an expert based
upon “knowledge, skill, experience, training, or education.” Such a witness may then
provide testimony “in the form of an opinion or otherwise” “[i]f scientific, technical, or
other specialized knowledge will substantially assist the trier of fact to understand the
evidence or to determine a fact in issue.” Id. The determination of whether a witness is
qualified to provide expert opinion testimony “hinges upon whether the proposed expert’s
qualifications authorize him or her to give an informed opinion upon the fact or issue for
which his or her testimony is being proffered.” State v. Scott, 275 S.W.3d 395, 402 (Tenn.
2009) (citing Stevens, 78 S.W.3d at 834).

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 In this case, Dr. Johnson testified that she is licensed in Tennessee as a psychologist
and health services provider. Dr. Johnson obtained her undergraduate degree in
psychology from North Carolina State University and her doctorate from the University of
Alabama in clinical psychology with a sub-specialization in psychology law. Dr. Johnson
completed an internship in clinical forensic psychology at the University of North Carolina
at Chapel Hill School of Medicine’s Department of Psychiatry and at the mental health
division of the Federal Correctional Institution in Buckner, North Carolina. Dr. Johnson’s
internship focused on conducting pre-trial competency, insanity, and commitability
evaluations. Dr. Johnson continued to work for the federal prison system for several years
and was eventually promoted to the position of Chief of Psychology Services for the
Federal Medical Center in Rochester, Minnesota. Dr. Johnson then took a position as the
director of psychology services at the Memphis Mental Health Institute and the State
psychiatric hospital.

Dr. Johnson also worked as a consulting psychologist with DIDD, where for the
first few years she “did therapy with high functioning people with intellectual disability”
and was “the coordinator of the sexual behavior risk reduction committee.” Dr. Johnson
testified that for two and a half years, she exclusively performed pre-trial competency and
insanity evaluations of defendants who were referred to DIDD by West Tennessee Forensic
Services because of suspected intellectual disability. Dr. Johnson then worked directly for
West Tennessee Forensic Services for eight months, evaluating defendants from multiple
counties suspected of having intellectual disability.

Dr. Johnson testified that she presently maintains a private practice conducting
forensic evaluations of adults, particularly those seeking eligibility for social security
benefits because of intellectual disability. Additionally, Dr. Johnson works on a contract
basis for the Shelby County Juvenile Court conducting psychological evaluations of
juveniles in relation to transfer hearings. Dr. Johnson testified that many of those juveniles
had I.Q. scores in the borderline or mild intellectual disability range and that the vast
majority came from impoverished, high crime areas in Shelby County. Dr. Johnson
testified that she considers her area of expertise to be “intellectual assessment of offenders
and other people, regarding intellectual disability” as well as “forensic psychological
assessments,” which are “specifically assessments that are related to the legal system and
relate to legal questions.” Dr. Johnson has previously testified many times in both federal
and state courts regarding the results of her evaluations.

During voir dire examination by post-conviction counsel, Dr. Johnson testified that
she is not board certified in either psychology or forensic psychology. Dr. Johnson testified
that she has not written any peer reviewed publications, explaining that she learned while
completing her dissertation that she “wasn’t very good at research.” Dr. Johnson testified
that she is not a neuropsychologist and does not administer a neuropsychological battery
during her evaluations. While Dr. Johnson is a member of the American Psychological
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Association, she is not a member of the Intellectual and Developmental Disabilities/Autism
Spectrum Disorders Subsection. Dr. Johnson is also not a member of the American
Association for Intellectual and Developmental Disabilities, though she does use the “green
book,” the eleventh edition of the AAIDD Manual defining intellectual disability.

Dr. Johnson acknowledged that she had only conducted one prior intellectual
disability assessment in the context of a capital post-conviction case, that of Sidney
Porterfield.14 Additionally, Dr. Johnson had consulted for the State during the capital post-
conviction hearing for Richard Odom, though she did not directly evaluate the defendant.
Dr. Johnson testified that while she has only done two retrospective assessments for
intellectual disability, her assessments for DIDD and Memphis Mental Health Institute
included both a “current assessment of functioning” as well as a review of the person’s
history, records, and prior testing. Dr. Johnson explained that intellectual disability is a
“life-long disorder, so I’m going to expect to see it now, as well as in the past,” and indeed
she would “need to see it has arisen during the developmental period.” Dr. Johnson
explained that her role in conducting those assessments “was not to be an advocate for or
against” but to “give the court an objective opinion.” Dr. Johnson testified that she attended
a training on conducting psychological evaluations in the context of capital cases and had
read relevant publications, including the AAIDD’s 2015 book on the subject that included
a chapter written by Dr. Everington. Dr. Johnson acknowledged that she is “relatively
new” to this particular field but that she was able to rely on her “expertise in [intellectual
disability] and the psycho-legal arena,” which she considered “issues that are directly
relevant.”

Petitioner objected to Dr. Johnson’s qualification as an expert, arguing that she
lacked “sufficient knowledge, experience, training, or education to conduct retrospective
assessments.” Post-conviction counsel stated that it was “our position that assessments in
capital cases are different than assessments in non-capital cases that Dr. Johnson has
familiarity with.” The post-conviction court overruled the objection, finding that Dr.
Johnson “does have special training, skill, or experience in this area.” The evidence in the
record supports the post-conviction court’s ruling. Dr. Johnson provided extensive
testimony regarding her knowledge, skill, experience, training, and education related to
conducting psychological assessments in various legal contexts with a particular emphasis
on conducting assessments of defendants suspected of having intellectual disability.

Petitioner makes much of the fact that Dr. Johnson had only conducted one prior
intellectual disability assessment in the context of a capital post-conviction case. However,
Dr. Johnson was accepted as an expert witness in the Porterfield case, despite the fact that
it was her first such assessment. See Sidney Porterfield, 2013 WL 3193420, at *8.
Although Petitioner asserts that intellectual disability assessments conducted in capital

14
See Sidney Porterfield, 2013 WL 3193420, at *8-19.
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post-conviction cases are “fundamentally different” from those conducted in other
contexts, the only difference he points to is the length of time between the assessment and
the criminal offense. However, the standard for diagnosing a person as intellectually
disabled is the same in both contexts and takes into account intellectual functioning,
adaptive behavior, and manifestation during the developmental period. Thus, Petitioner
has not established that Dr. Johnson’s experience in conducting pre-trial intellectual
disability assessments is completely irrelevant to her ability to give an informed opinion in
this case. Accordingly, we conclude that the post-conviction court did not abuse its
discretion in accepting Dr. Johnson as an expert witness under Rule 702.

2. Rule of Evidence 703

As the Tennessee Supreme Court has recognized, “the court’s inquiry into whether
expert testimony is sufficiently reliable does not end when a trial court concludes that the
witness is, in fact, an expert in the area in which he or she proposes to testify.” Scott, 275
S.W.3d at 402. Under Rule of Evidence 703, “[t]he court shall disallow testimony in the
form of an opinion or inference if the underlying facts or data indicate lack of
trustworthiness.” In McDaniel, the Tennessee Supreme Court set forth a “non-exhaustive
list of factors” that trial courts may consider in determining the reliability of expert opinion
testimony. 955 S.W.2d at 265. While “[r]igid application of the McDaniel factors is not
required,” State v. Copeland, 226 S.W.3d 287, 302 (Tenn. 2007), the trial court must still
“assure itself that the opinions are based on relevant scientific methods, processes, and
data, and not upon an expert’s mere speculation.” McDaniel, 955 S.W.2d at 265. The
court must “ensure that the basis for the witness’s opinion, i.e., testing, research, studies,
or experience-based observations, adequately supports that expert’s conclusions.” Stevens,
78 S.W.3d at 834. “As part of this analysis, the courts should consider how and why the
expert was able to extrapolate from certain data to the conclusions that he or she has
reached.” Scott, 275 S.W.3d 395, 402 (Tenn. 2009). There must be a “straightforward
connection between the expert’s knowledge and the basis for the opinion such that no
‘analytical gap’ exists between the data and the opinion offered.” Stevens, 78 S.W.3d at
835. Once this threshold for admissibility has been met, the expert’s testimony “will
thereafter be tested with the crucible of vigorous cross-examination and countervailing
proof,” and the weight to be assigned to the testimony is “appropriately entrusted to the
trier of fact.” McDaniel, 955 S.W.2d at 265.

In this case, Petitioner argues that the post-conviction court erred by accrediting Dr.
Johnson’s testimony without analyzing the reliability of her methods. Relying on the
McDaniel factors, Petitioner argues that the “screening questions” Dr. Johnson used during
her evaluation of Petitioner’s adaptive functioning “were not created through any specific
methodology, were not subjected to peer review or publication, were not subject to any
known rate of error, were not accepted in the scientific community . . . and were created,
ad hoc, for purposes of this litigation.” However, the post-conviction court was not
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required to rigidly apply the McDaniel factors in assessing the basis for Dr. Johnson’s
opinion. Dr. Johnson explained that she did not administer a standardized measure of
adaptive behavior to Petitioner because she intended to administer the ABAS rating scale
to his aunt, Alma Rockett. Instead, she administered an “adaptive screening” that she had
developed while working at the DIDD and used many times when assessing individuals
for intellectual disability. Dr. Johnson testified that the questions were based upon some
of the subject areas addressed on the ABAS and other standardized adaptive measures.
Based on Dr. Johnson’s testimony, it is clear that the adaptive screening, like a structured
clinical interview, was designed to gather qualitative information about Petitioner’s
knowledge of and ability to perform certain adaptive behaviors rather than quantitative data
about the frequency with which he performed such behaviors. Petitioner faults Dr. Johnson
for focusing on the practical domain of adaptive behavior and Petitioner’s current level of
adaptive functioning. However, any such deficiencies would go to the weight rather than
the admissibility of Dr. Johnson’s testimony. Moreover, Dr. Johnson’s opinion was not
based solely upon Petitioner’s responses to her screening questions but instead took into
account the totality of the information available, including the social history interviews and
records provided by Petitioner’s post-conviction counsel as well as the results of
standardized intelligence and achievement testing. Petitioner has not established that there
is any “analytical gap” between Dr. Johnson’s screening questions and the ultimate
conclusion that she reached regarding Petitioner’s adaptive deficits. The post-conviction
court did not abuse its discretion in admitting Dr. Johnson’s expert testimony under Rule
703.

D. Trial Counsel’s Failure to Investigate and Present Additional Mitigating Evidence

Petitioner argues that trial counsel were deficient because they conducted “a
minimal mitigation investigation” consisting of “only a handful” of “cursory” interviews,
failed to effectively prepare Vivian and Quiana Pruitt’s testimony by refreshing their
memories with various records, failed to call additional witnesses to testify regarding
Petitioner’s social history, and failed to adequately investigate and present evidence of
Petitioner’s mental health and cognitive impairments. Petitioner argues that he was
prejudiced because “if counsel had conducted the constitutionally mandated investigation,
they would have discovered compelling mitigation reasonably likely to have persuaded at
least one juror to spare [Petitioner’s] life.”

The State responds that “trial counsel presented significant mitigating evidence
about the difficult circumstances of [P]etitioner’s childhood and his diagnosis of mental
illness.” The State argues that trial counsel made reasonable strategic decisions regarding
their investigation and presentation of mitigating evidence and that their performance
“should not now be deemed incompetent simply because post-conviction counsel were able
to build upon it.” Additionally, the State argues that Petitioner failed to demonstrate
prejudice because the mitigating evidence presented at the post-conviction hearing, though
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more detailed, was merely cumulative of the evidence presented at trial and would not have
outweighed the strength of the aggravating circumstances.

“Capital defendants possess a constitutionally protected right to provide the jury
with mitigation evidence that humanizes the defendant and helps the jury accurately gauge
the defendant’s moral culpability.” Davidson, 453 S.W.3d at 402 (citing Porter v.
McCollum 558 U.S. 30, 41 (2009); Williams, 529 U.S. at 393). “[A]lthough there is no
requirement that defense counsel present mitigating evidence in the penalty phase of a
capital trial, counsel’s duty to investigate and prepare for a capital trial encompasses both
the guilt and sentencing phases.” Id. at 395 (quoting Goad, 938 S.W.2d at 369-70).
Accordingly, “counsel should make an effort to discover all reasonably available
mitigating evidence and all evidence to rebut any aggravating evidence that the State might
introduce.” Id. at 402 (citing Wiggins v. Smith, 539 U.S. 510, 524 (2003)). However,
counsel “is not required . . . to run down every conceivable line of potentially mitigating
evidence.” Id. at 395 (citing Wiggins, 539 U.S. at 533). Instead, counsel has a duty to
“make either a reasonable investigation or a reasonable decision that particular
investigations would be unhelpful or unnecessary.” Id. at 402 (citing Wiggins, 539 U.S. at
521). Counsel’s performance will be “reviewed for reasonableness under prevailing
professional norms, which includes a context-dependent consideration of the challenged
conduct as seen from counsel’s perspective at the time.” Detrick Cole v. State, No. W2008-
02681-CCA-R3-PD, 2011 WL 1090152, at *36 (Tenn. Crim. App., at Jackson, Mar. 8,
2011) (citing Wiggins, 539 U.S. at 523). “To determine whether counsel’s actions were
reasonable, a reviewing court should ‘consider not only the quantum of evidence already
known to counsel, but also whether the known evidence would lead a reasonable attorney
to investigate further.’” Davidson, 453 S.W.3d at 402 (quoting Wiggins, 539 U.S. at 527).

If counsel’s performance in this regard is found to be deficient, a reviewing court
must determine if there is a reasonable probability that the presentation of additional
mitigating evidence would have resulted in a different outcome. See id. In other words,
the petitioner “must show that ‘there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.’” Nichols v. State, 90 S.W.3d 576, 598 (Tenn. 2002)
(quoting Strickland, 466 U.S. at 695). The Tennessee Supreme Court has identified the
following factors that should be considered by a reviewing court:

(1) the nature and extent of the mitigating evidence that was available but not
presented; (2) whether substantially similar mitigating evidence was
presented to the jury in either the guilt or penalty phase of the proceedings;
and (3) whether there was such strong evidence of aggravating factors that
the mitigating evidence would not have affected the jury’s determination.

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Id. (citing Goad, 938 S.W.2d at 371); see also Davidson, 453 S.W. 3d at 403; Henley, 960
S.W.2d at 580.

In this case, the post-conviction court found that Petitioner presented at the post-
conviction hearing “potential mitigating evidence about which trial counsel should have
known and could have presented during the capital sentencing phase.” In particular, the
post-conviction court noted the evidence of Petitioner’s excessive marijuana use as a
teenager and its potential effects on his developing brain, as well as evidence of his
mother’s drug and alcohol use during pregnancy, which she did not specifically recall at
trial. The post-conviction court stated that because this evidence was available before trial
and “could have given the jury a better view of Petitioner’s potential mental illness and
could have placed the low I.Q. scores testified to by Dr. Rutledge in a better context,” “it
can be said that trial counsel’s not presenting it in their presentation of mitigation to the
jury may have constituted deficient performance.” However, rather than resolve whether
trial counsel were indeed deficient, the post-conviction court focused on Petitioner’s failure
to prove that he was prejudiced. See Henley, 960 S.W.2d at 580. The post-conviction court
found that “much of the potential mitigation proof presented at the post-conviction hearing
was cumulative to the mitigation presented at Petitioner’s trial.” Moreover, the post-
conviction court found that two of the three statutory aggravating factors proved by the
State – Petitioner’s prior convictions for violent offenses and the victim’s age – “appear to
have carried significant weight” with the sentencing jury. The post-conviction court
concluded:

While conceivably the extra mitigation evidence identified at the post-
conviction hearing but not presented at trial might have further “humanized”
Petitioner and offered some sort of potential context for explaining
Petitioner’s violent tendencies, the number of the aggravating circumstances
found by the jury and the strong proof supporting them and the weight the
jury would give them, causes this court to find that there is not a reasonable
probability that the jury would have returned a sentence other than death had
the additional mitigating evidence identified by post-conviction counsel been
presented at trial.

Based on our review of the evidence presented at the post-conviction hearing, we
conclude that trial counsel conducted a reasonable mitigation investigation and made
reasonable strategic decisions regarding the presentation of mitigating evidence during the
sentencing phase. Trial counsel and their investigators met with Petitioner and several
members of his family on multiple occasions to discuss Petitioner’s social history. The
defense team obtained Petitioner’s school, employment, medical, mental health, and
juvenile and adult arrest records. Trial counsel also obtained Vivian Pruitt’s arrest records
since Petitioner’s birth, even though lead counsel did not believe that the jury would
necessarily view her frequent arrests as mitigating. After Petitioner was evaluated by
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MTMHI, trial counsel obtained an independent psychological evaluation by Dr. Steinberg,
although they ultimately concluded that Dr. Steinberg’s testimony would not be helpful.
Additionally, lead counsel and former lead counsel presented Petitioner’s case at a
conference specifically designed to brainstorm possible mitigation theories. Based on this
investigation and preparation, the defense team developed a mitigation theory related to
Petitioner’s “bad family situation” and “horrendous childhood,” in addition to his diagnosis
of schizophrenia and mild mental retardation from MTMHI. There were several
indications that Petitioner’s family, particularly Alma Rockett, were reluctant to help, and
trial counsel relied on Ms. Stanback “to marshal the family” to Petitioner’s defense. Trial
counsel also made the strategic decision to present Quiana Pruitt as the “family historian.”
Although trial counsel were deficient in establishing the statutory criteria for intellectual
disability, as discussed above, they were able to introduce as mitigating circumstances
evidence of Petitioner’s low cognitive functioning and mental illness through Dr.
Rutledge’s testimony. See T.C.A. §§ 39-13-203(e); -204(j)(8).

In determining whether trial counsel’s investigation was reasonable, this court
“must consider the limited time and resources of counsel.” Perry Anthony Cribbs v. State,
No. W2006-01381-CCA-R3-PD, 2009 WL 1905454, at *48 (Tenn. Crim. App., at Jackson,
July 1, 2009). Moreover, this court must “resist the urge to evaluate counsel’s performance
using ‘20-20 hindsight.’” Davidson, 453 S.W.3d at 393 (quoting Mobley v. State, 397
S.W.3d 70, 80 (Tenn. 2013)). Although Petitioner presented significantly more evidence
during the post-conviction hearing regarding his background and mental health, he did not
indicate what information in trial counsel’s possession would have led a reasonable
attorney to investigate further in order to develop such evidence. See id. at 402 (quoting
Wiggins, 539 U.S. at 527). For instance, Petitioner faults trial counsel for failing to obtain
an expert to conduct neuropsychological testing to evaluate Petitioner’s deficits in
executive functioning, but Dr. Steinberg’s report specifically stated that such testing was
not necessary in this case.15 Similarly, there is no indication that many of the lay witnesses
who testified at the post-conviction hearing were specifically identified by Petitioner, his
family members, or in any of the records as potential mitigation witnesses that should have
been sought out by trial counsel. Moreover, some of them were deemed “somewhat less
credible” by the post-conviction court due to their own criminal records.

Further, as found by the post-conviction court, Petitioner failed to establish that he
was prejudiced by any alleged deficiency. The mitigation evidence presented by Petitioner
at the post-conviction hearing was largely cumulative of the evidence presented during the

15
Although it is unclear why a copy of Dr. Steinberg’s report could not be located in the Public
Defender’s Office’s file prior to the post-conviction hearing, it is clear from the testimony that former lead
counsel was familiar with the report and that she discussed her impressions of Dr. Steinberg’s opinion with
co-counsel when he replaced her on Petitioner’s defense team. Additionally, lead counsel testified that he
had several conversations with Dr. Steinberg regarding the evaluation of Petitioner; thus, he too would have
been familiar with any recommendations as to whether further testing was necessary.
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sentencing phase at trial. See Nichols, 90 S.W.3d at 601. Through Vivian and Quiana
Pruitt, the jury heard about Petitioner’s difficult childhood, which included testimony
regarding the family’s poverty, including periods without electricity; his mother’s drug use
and frequent arrests, including an aggravated assault for shooting Petitioner’s father; the
extensive family history of mental illness, including Petitioner’s grandmother who was
responsible for raising Petitioner while his mother was incarcerated or “in the streets”; the
absence of Petitioner’s biological father and abandonment by his stepfather; and the trauma
experienced by Petitioner when he lost several friends to a violent car crash. The jury also
heard about Petitioner’s behavioral issues as an adolescent, including the fact that he
dropped out of school, used marijuana, and had an extensive juvenile record. Through Dr.
Rutledge, the jury heard that Petitioner had low I.Q. scores both as a juvenile and as an
adult and that he was diagnosed with mild mental retardation, schizophrenia, and substance
abuse disorder. While the evidence presented at the post-conviction hearing added
additional detail regarding Petitioner’s social history and mental health, it did not paint a
significantly different picture. Cf. Detrick Cole, 2011 WL 1090152, at *37 (concluding
that trial counsel rendered ineffective assistance in presenting mitigation evidence because
“the true picture of the Cole family was the antithesis of the loving family presented by
trial counsel.”).

Finally, to the extent that Petitioner presented evidence that may not have been
cumulative of the evidence presented at trial, such as evidence of the violence within both
Petitioner’s home and community, Petitioner has not established that it would have affected
the jury’s determination in light of the strength of the aggravating circumstances,
particularly his prior conviction for violent felonies16 and the vulnerability of the victim
due to his age. Petitioner argues that this court should “abandon the strength of the
aggravating evidence factor,” which was first articulated by the Tennessee Supreme Court
in Goad, 938 S.W.2d at 371, because he asserts that it is inconsistent with more recent
United States Supreme Court cases, such as Wiggins, 539 U.S. 510, and Williams, 529 U.S.
362, which do not include a discussion of the aggravating factors when determining
whether counsel was ineffective for failing to present additional mitigating evidence.
Petitioner asserts that in Davidson, the Tennessee Supreme Court’s most recent case on the
issue, “the Court only made passing reference to the Goad analysis, but effectively applied
the correct constitutional standard found in United States Supreme Court jurisprudence.”
16
In a footnote in his brief, Petitioner argues that because his prior offenses were committed when
he was sixteen and twenty-two years old, trial counsel “should have moved to prohibit use of this conduct
as an aggravating circumstance, in violation of the Eighth Amendment in light of Thompson v. Oklahoma,
487 U.S. 815, 838 (1988) (plurality opinion) and Roper v. Simmons, 543 U.S. 551 (2005).” A conclusory
argument presented in a footnote is deemed waived for failure to comply with the briefing requirements of
Tennessee Rule of Appellate Procedure 27(a). See Tenn. Ct. Crim. App. R. 10(b); Fisher v. Hargett, 604
S.W.3d 381, 388 n.6 (Tenn. 2020) (citing Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012)). Even if
this issue were not waived, trial counsel would not be deemed deficient for failing to raise an objection that
has been found meritless by the Tennessee Supreme Court. See State v. Cole, 155 S.W.3d 885, 905 (Tenn.
2005) (citing State v. Davis, 141 S.W.3d 600, 618 (Tenn. 2004)).
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See 453 S.W.3d at 402-03. However, the Davidson court not only articulated all three
factors as the applicable standard for determining prejudice, see id. at 395, they specifically
stated that they had considered the strength of the aggravating factors in concluding that
the petitioner was prejudiced by trial counsel’s deficient performance in presenting
mitigating evidence. Id. at 406. Accordingly, we cannot conclude that the third Goad
factor has been implicitly overruled or abrogated. As an intermediate court, we are bound
by the decisions of the Tennessee Supreme Court with regard to constitutional questions.
See State v. Pendergrass, 13 S.W.3d 389, 397 (Tenn. Crim. App. 1999). Moreover, this
factor is consistent with the statement in Strickland that a petitioner must show “a
reasonable probability that, absent the errors, the sentencer . . . would have concluded that
the balance of aggravating and mitigating circumstances did not warrant death” in order
to establish prejudice. Strickland, 466 U.S. at 695 (emphasis added). The post-conviction
court did not err in applying this factor to Petitioner’s case, and the evidence in the record
does not preponderate against the post-conviction court’s conclusion. Because Petitioner
failed to establish either that trial counsel rendered deficient performance with regard to
their investigation and presentation of mitigating evidence or that he was prejudiced
thereby, he is not entitled to relief on this issue.

E. Trial Counsel’s Failure to Investigate and Present Evidence of the Victim’s Views on
the Death Penalty

Petitioner argues that trial counsel were ineffective for failing to investigate the fact
that as a Catholic, the victim was against the death penalty and that his close friends and
fellow church members, the Leeches, supported showing Petitioner mercy. However, as
found by the post-conviction court, trial counsel were aware of the position of the Catholic
Church with regard to the death penalty and the fact that the Leeches and other fellow
parishioners indicated they were “not out for blood.” Moreover, trial counsel intended to
present such evidence as possible mitigation, either through cross-examination of the
Leeches or presenting the testimony of a Catholic priest, but the State made a motion in
limine to exclude such evidence as irrelevant, which was granted by the trial court. The
Tennessee Supreme Court has held that a trial court does not abuse its discretion by
excluding evidence of the victim’s or the victim’s family’s views on the death penalty
because it is generally “considered to be irrelevant.” State v. Hester, 324 S.W.3d 1, 59
(Tenn. 2010) (citing cases); see also State v. Nesbit, 978 S.W.2d 872, 888 n.8 (Tenn. 1998).
Petitioner makes a conclusory assertion that “[d]ue process requires these views [be
admitted as mitigating evidence] to rebut and contextualize the State’s decision to seek the
death penalty” and suggests that trial counsel were deficient because they “were not
prepared to make the constitutional arguments” in response to the State’s motion in
limine.17 However, Petitioner does not indicate how trial counsel’s further investigation

17
By failing to cite any supporting legal authority, Petitioner has waived any due process claim.
See Tenn. Ct. Crim. App. R. 10(b).
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into the religious views of the victim or his close friends might have affected the trial
court’s ruling or the outcome of his case. Moreover, Petitioner failed to call the Leeches
or any other witnesses at the post-conviction hearing to testify regarding the victim’s or his
close friends’ views on the death penalty. See Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990) (“When a petitioner contends that trial counsel failed to discover,
interview, or present witnesses in support of his defense, these witnesses should be
presented by the petitioner at the evidentiary hearing.”). Petitioner has failed to establish
either that trial counsel were deficient in this regard or that he was prejudiced.

IV. Petitioner’s Claims Related to Prosecutorial Discretion and Misconduct

A. Prosecutorial Discretion in Charging Decision

Petitioner argues that the State abused its discretion in continuing to seek the death
penalty after receiving notification from the defense that they would present evidence of
Petitioner’s intellectual disability, including the report from Dr. Rutledge that Petitioner
had an I.Q. score of 66. Additionally, Petitioner argues that the State abused its discretion
by seeking dual convictions for both felony and premeditated first degree murder, thereby
giving the State “two bites at the apple” for a conviction and a death sentence. Petitioner
also raises a related claim that trial counsel were ineffective for failing to file a pretrial
motion to preclude the imposition of the death penalty and a pretrial motion for the State
to make an election of offenses.

The post-conviction court properly determined that the stand-alone claims of abuse
of prosecutorial discretion were waived because Petitioner failed to raise them at trial or
on direct appeal. See T.C.A. § 40-30-106(g). Moreover, the post-conviction court properly
determined that because these claims are without merit, Petitioner failed to establish
ineffective assistance of counsel. Prosecutorial discretion in charging decisions, including
whether to seek the death penalty, is generally not subject to judicial review. See Pruitt,
415 S.W.3d at 215 (citing Bland, 958 S.W.2d at 666 n.17). Petitioner has cited no authority
for the proposition that the prosecutor is precluded from seeking the death penalty upon
the mere allegation of the defendant’s intellectual disability. Instead, the statute places
“[t]he burden of production and persuasion to demonstrate intellectual disability by a
preponderance of the evidence [ ] upon the defendant.” T.C.A. § 39-13-203(c) (2010).
Thus, the State is not required to disprove a claim of intellectual disability prior to seeking
the death penalty. Additionally, Petitioner has presented no evidence that the prosecutor
would have chosen not to pursue the death penalty had trial counsel filed a pretrial motion
to preclude the death penalty rather than simply a notice of intent to present expert
testimony. In fact, the post-conviction court concluded that trial counsel made a strategic
choice to make a motion for a directed verdict at the close of the sentencing hearing in
order to surprise the State and that the timing of the motion “did not waive any of

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Petitioner’s rights and did not place Petitioner in any disadvantage.”18 Such strategic
choices are “virtually unchallengeable.” Strickland, 466 U.S. at 690.

With regard to the prosecutor’s decision to charge Petitioner with both felony and
premeditated first degree murder, Petitioner relies upon dicta in this court’s opinion in State
v. Zirkle, in which this court affirmed the merger of dual convictions as a “cure[]” for the
“double jeopardy problem” but noted that “[p]erhaps the merger procedure would have
been prejudicial if the jury had chosen to impose the death penalty.” 910 S.W.2d 874, 889
(Tenn. Crim. App. 1995). However, even in the context of death penalty cases, “our
supreme court has held that the State is not required to elect between first degree
premeditated murder and felony murder charged in separate counts of the indictment for a
single offense, and both theories of first degree murder may be submitted to the jury.” State
v. Joel Richard Schmeiderer, No. M1999-02546-CCA-R3-CD, 2000 WL 1681030, at *9
(Tenn. Crim. App., at Nashville, Nov. 9, 2000) (citing State v. Hurley, 876 S.W.2d 57, 69-
70 (Tenn. 1993); State v. Henley, 774 S.W.2d 908, 916 (Tenn. 1989)); see also State v.
Cribbs, 967 S.W.2d 773, 788 (Tenn. 1998). Additionally, the supreme court has approved
of merger as the appropriate remedy “when a jury returns guilty verdicts on two counts
representing alternative theories of the same offense.” State v. Davidson, 509 S.W.3d 156,
217 (Tenn. 2016) (citing Cribbs, 967 S.W.2d at 788). Thus, Petitioner has not established
any deficient performance on the part of trial counsel for failing to file a pretrial motion for
the State to elect between felony murder and premeditated first degree murder. Moreover,
the jury ultimately acquitted Petitioner of premeditated first degree murder and, as a result,
only considered and imposed the death penalty for one count of first degree murder. Thus,
Petitioner has failed to establish that he was prejudiced. Petitioner is not entitled to relief
on this issue.

B. Prosecutor’s Use of Peremptory Strikes in Violation of Batson v. Kentucky

Petitioner argues that the State committed prosecutorial misconduct by exercising
peremptory challenges against four African American potential jurors in violation of
Batson v. Kentucky, 476 U.S. 79 (1986), and that trial counsel rendered ineffective
assistance by failing to adequately object to the State’s discriminatory use of peremptory
challenges, resulting in structural defects that require a new trial. Specifically, Petitioner
claims that after raising a Batson objection during jury selection, trial counsel failed to
argue that the explanation provided by the State with regard to three of the jurors was

18
In his Amended Petition, Petitioner included as part of his claims related to intellectual disability
that trial counsel were deficient for failing to raise the issue pretrial because it resulted in his being tried by
a “death-qualified” jury. However, other than quoting the trial court’s order denying the motion for new
trial, in which the trial court stated that “no defense attorney worth his or her salt would ever wish to try the
guilt phase of a Murder First Degree case to a ‘death-qualified’ jury when he or she had a chance to remove
the possibility of death prior to jury selection,” Petitioner does not raise the timing of the motion as an issue
on appeal other than with regard to its effect on the prosecutor’s charging decision.
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pretextual and failed to insist upon the State providing a race-neutral explanation with
regard to the fourth juror. Petitioner further complains that trial counsel did not raise the
Batson claims in the motion for new trial and that appellate counsel failed to raise the
Batson claims on appeal. The post-conviction court found that Petitioner waived any
stand-alone Batson claim related to the State’s use of peremptory challenges by failing to
raise the issue on direct appeal. See T.C.A. § 40-30-106(g). The post-conviction further
found that Petitioner failed to present any proof to establish that trial counsel or appellate
counsel rendered ineffective assistance. We agree that the stand-alone prosecutorial
misconduct claim is waived and shall analyze the issue only in the context of ineffective
assistance of counsel.

In Batson v. Kentucky, the Supreme Court held that “the Equal Protection Clause
forbids the prosecutor to challenge potential jurors solely on account of their race. . . .”
476 U.S. at 89. The following prerequisites must be met to establish a Batson violation:
(1) the defendant must establish a prima facie case of purposeful discrimination; (2) the
State must be given the opportunity to rebut the prima facie case by offering a race-neutral
explanation for the exercise of the peremptory challenge; and (3) the trial court must
determine whether the defendant has established purposeful discrimination. State v. Kiser,
284 S.W.3d 227, 255 (Tenn. 2009). The State’s race-neutral explanation must be
reasonable and specific but need not be persuasive. Purkett v. Elem, 514 U.S. 765, 767-68
(1995); see State v. Hugueley, 185 S.W.3d 356, 368 (Tenn. 2006). “Unless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be
deemed race-neutral.” Purkett, 514 U.S. at 768 (citations omitted); see Hugueley, 185
S.W.3d at 368. The trial court, however, must consider the explanation in light of all
evidence to ensure that the explanation is not pretextual. Miller-El v. Dretke, 545 U.S. 231,
251-52 (2005); Hugueley, 185 S.W.3d at 369. “Because the core issue is the prosecutor’s
discriminatory intent, or lack thereof, the trial court’s finding ‘largely will turn on
evaluation of credibility.’” State v. Ellison, 841 S.W. 2d 824, 827 (Tenn. 1992) (quoting
Batson, 476 U.S. at 98). On appeal, a trial court’s findings on the issue of discriminatory
intent is accorded great deference and will be sustained unless clearly erroneous.
Hugueley, 185 S.W.3d at 369.

During jury selection, the State used four peremptory challenges against African
American prospective jurors. Trial counsel raised a Batson challenge to all four strikes.
The trial court noted that the State struck one African American prospective juror in the
first round and three in the second round. The trial court then asked the State to provide a
race-neutral reason for the three jurors stricken by the State in the second round. The State
responded that all three jurors “gave hesitant, reluctant answers on the death penalty
question,” and additionally that one of the jurors had “bad bod[y] language from the minute
he was called up into the jury box” until he was excused. The trial court agreed that all
three prospective jurors appeared “hesitant” despite answering that they could vote for the
death penalty, noted that one of the jurors appeared “unhappy to be there,” and found these
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to be race-neutral reasons for striking the prospective jurors. Trial counsel argued against
the trial court’s consideration of the body language of the prospective jurors but did not
dispute the State’s reason to strike the jurors because they were “reluctant.”

Petitioner complains that trial counsel were deficient for failure to pursue a race-
neutral explanation for the State’s striking the African American juror in the first round.
While the trial court made no explicit finding that trial counsel had made a prima facie
showing of discrimination regarding any of the jurors in question, our supreme court in
Woodson concluded that had the trial court determined that no prima facie showing was
made, the court would not have required the State’s race neutral explanation for the
challenge. Woodson v. Porter Brown Limestone Co., Inc., 916 S.W.2d 896, 905 (Tenn.
1996). Thus, we conclude that the court implicitly found that trial counsel had satisfied
the first prong of the Batson test with regard to the three jurors stricken in the second round,
but not the juror stricken in the first round.

Petitioner further claims that trial counsel were ineffective for failing to challenge
the prosecutor’s statement that the prospective jurors “all used the word ‘reluctantly,’”
when the transcript reflected that none of the jurors actually used that word in their
responses regarding their willingness to impose the death penalty.19 However, a single
misstatement by the prosecutor does not amount to discriminatory intent. “To be sure, the
back and forth of a Batson hearing can be hurried, and prosecutors can make mistakes when
providing explanations. That is entirely understandable, and mistaken explanations should
not be confused with racial discrimination.” Flowers v. Mississippi, 139 S.Ct. 2228, 2250
(2019). While the record does not show that any of the prospective jurors in question used
the word “reluctant” in their answers about the death penalty, the record does indicate that
the trial court found the jurors to be hesitant and not “as vocal as the other jurors.”
Subjective explanations for a peremptory challenge, such as a prospective juror’s
demeanor, are permitted but must be “carefully scrutinized” for “facial validity.” State v.
Carroll, 34 S.W.3d 317, 320 (Tenn. Crim. App. 2000) (internal citations omitted). The
trial court found the State’s explanation to be credible in light of the trial court’s own
observation of the three challenged jurors.

Moreover, Petitioner failed to present any evidence during the post-conviction
hearing that contradicts the trial court’s findings of a race-neutral reason for the State’s
peremptory challenges to support his claim that trial counsel were ineffective in failing to
further pursue the Batson challenge after the trial court’s ruling. Likewise, Petitioner failed
to present any evidence that if trial counsel were deficient, that alleged deficiency affected
the outcome of the proceedings. Petitioner argues that he was not required to present
evidence at the post-conviction hearing because the Batson issues are all “record based.”

19
One of the prospective jurors did use the word “reluctantly” in her answer regarding being
sequestered for the duration of the trial.
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However, the United States Supreme Court has cautioned against this approach. See
Massaro v. United States, 538 U.S. 500, 505 (2003) (noting that the “record may reflect
the action taken by counsel but not the reasons for it”). Moreover, Petitioner has the burden
of proving the factual basis of his claims for post-conviction relief by clear and convincing
evidence. See T.C.A. § 40-30-110(f); Momon, 18 S.W.3d at 156. Petitioner did not
question any of the attorney witnesses – either the prosecutors or trial counsel – about their
actions regarding the Batson issues, nor did he present any of the stricken jurors as
witnesses to refute the trial court’s ruling on the issue. Accordingly, Petitioner has failed
to establish that trial counsel were deficient in failing to challenge the make-up of the jury
and that any deficiency resulted in prejudice. The trial court was in the best position to
judge the credibility of both the prospective jurors and the prosecutors because the trial
court has the opportunity to observe their demeanor. Smith, 893 S.W.2d at 914. The record
supports the trial court’s acceptance of the State’s race-neutral reason for excluding the
prospective jurors. Petitioner is not entitled to relief on this issue.

Petitioner further claims that appellate counsel rendered ineffective assistance by
failing to raise the Batson claims on direct appeal, asserting that there is a reasonable
probability that this court would have vacated Petitioner’s conviction and remanded the
case for a new trial. However, Petitioner offered no proof regarding appellate counsel’s
decisions with regard to which issues were addressed on appeal and further offered no
proof that Petitioner suffered prejudice from appellate counsel’s failure to raise the Batson
issue on direct appeal. Accordingly, we conclude that the record supports the post-
conviction court’s finding that Petitioner failed to establish deficiency or prejudice as a
result of appellate counsel’s failure to raise the Batson issues on appeal. Petitioner is not
entitled to relief on this issue.

C. Improper Prosecutorial Statements and Argument

Petitioner argues that the State committed prosecutorial misconduct by repeatedly
making improper arguments and statements during Petitioner’s trial and that trial counsel
made only limited attempts to stem the misconduct, failing to object during the State’s
questioning of certain witnesses and closing arguments in both the guilt and sentencing
phases of trial. The State argues that the post-conviction court properly concluded that
Petitioner failed to prove either deficiency or prejudice. We agree with the post-conviction
court that Petitioner’s stand-alone allegations of prosecutorial misconduct are waived
because they were not raised on direct appeal. See T.C.A. § 40-30-106(g). Accordingly,
we will address Petitioner’s allegations in the context of ineffective assistance of counsel.

Petitioner first argues that trial counsel were deficient for failing to file a motion in
limine to prohibit the State from making improper arguments. Co-counsel testified that he
did not consider filing a pretrial motion, stating that the prosecutor “was really good at
what she did” and that trial counsel “just had to be on our toes to catch her where we could.”
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Petitioner asserts that had trial counsel filed a pre-trial motion in limine, any improper
arguments would have been preserved for appeal even without a specific objection.
However, Petitioner fails to cite any authority supporting this position, risking waiver of
the issue. See Tenn. Ct. Crim. App. R. 10(b). Further, Petitioner failed to offer any
evidence to demonstrate that failing to file such a pretrial motion making a general
objection to improper argument fell below professional norms or that trial counsel’s failure
to file such a motion affected the outcome of the trial.

With regard to the prosecutor’s allegedly improper statements, Petitioner references
three specific incidents during questioning of witnesses at trial: 1) the prosecutor posed a
hypothetical question to the forensic pathologist involving a description of the victim being
“run over by a tractor”; 2) during cross-examination of defense expert Dr. Smith, the
prosecutor posed “inflammatory sarcastic hypotheticals” regarding the victim’s cause of
death; and 3) during cross-examination of Dr. Rutledge during the sentencing phase, the
prosecutor asked if Petitioner could have been “faking stupid.” In each instance cited by
Petitioner, trial counsel objected and was overruled by the trial court. Petitioner failed to
present any proof to support his assertions that trial counsel were ineffective in responding
to these alleged improper statements by the prosecutor.

Petitioner also argues that trial counsel were deficient in responding to alleged
prosecutorial misconduct during the prosecution’s closing arguments at both the guilt and
sentencing phases of the trial. The argument of an advocate must be temperate, predicated
upon evidence introduced during the trial, and pertinent to the issues that must be resolved
by the jurors. State v. Griffis, 964 S.W.2d 577, 599 (Tenn. Crim. App. 1997).
“[P]rosecutors, no less than defense counsel, may use colorful and forceful language in
their closing arguments, as long as they do not stray from the evidence and the reasonable
inferences to be drawn from the evidence or make derogatory remarks or appeal to the
jurors’ prejudices.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008). “A criminal
conviction should not be lightly overturned solely on the basis of the prosecutor’s closing
argument.” Id. (citing U.S. v. Young, 470 U.S. 1, 11-13 (1985)). Indeed, “[a]n improper
closing argument will not constitute reversible error unless it is so inflammatory or
improper that it affected the outcome of the trial to the defendant’s prejudice.” Id.; see also
Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). The reviewing court should
consider the following factors:

(1) the conduct complained of, viewed in light of the facts and circumstances of the
case; (2) the curative measures undertaken by the [c]ourt and the prosecutor; (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.

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State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d 340,
344 (Tenn. Crim. App. 1976)).

Petitioner claims that during closing arguments in the guilt phase of the trial, the
prosecutor vouched for the credibility of a State’s witness; argued that defense witness Dr.
Smith had a “bit of an axe to grind”; mischaracterized the law by referring to the jury
instructions as “big fancy legal words” and incorrectly summarizing the lesser included-
offenses; repeatedly referred to Petitioner as a “hunter . . . looking for prey”; and argued
facts not in evidence. The post-conviction court found that the prosecutor’s closing
arguments were not unduly improper. Further, the post-conviction court found that at one
point, trial counsel objected to the prosecutor’s argument, which led to the trial court
issuing a “lengthy corrective instruction.” In fact, the record reflects that trial counsel
objected six times during the State’s closing argument, including an objection to the State’s
mischaracterization of the law, resulting in the trial court’s admonishing the prosecutor and
the prosecutor’s correction of the misstatement. The post-conviction court noted that “after
the last of [trial counsel’s] objections, the State’s argument became more temperate.”

At the post-conviction hearing, co-counsel testified that he objected to some of the
State’s closing arguments but not to others, including the use of the term “hunter,” because
he had “objected a bunch” already and did not want the jury to hold other objections against
him. He also stated that he did not want to risk interrupting the State’s argument when it
was close to being finished, which could cause the prosecutor to “restart and get her going
again.” The post-conviction court found trial counsel’s strategy to be reasonable, and the
evidence does not preponderate against the post-conviction court’s findings.

Petitioner also claims that trial counsel were deficient for failing to object to the
prosecutor’s arguments during the sentencing phase of the trial. The Petitioner asserts that
the prosecutor mischaracterized mitigating evidence as “things that make it not so bad,”
referred to Petitioner as the “hunter” becoming the “hunted,” and referenced facts not in
evidence. The post-conviction court found that the State’s sentencing phase arguments
were not so inflammatory as to require the Court to set aside Petitioner’s death sentence.
The record reflects that trial counsel did object during the State’s arguments during the
sentencing phase, including an objection to references to facts not in evidence. Further,
the trial court properly instructed the jury regarding its consideration of mitigating
evidence, and the jury is presumed to follow the instructions of the court. See State v. Reid,
164 S.W.3d 286, 346 (Tenn. 2005).

Trial counsel did not object to the State’s references to Petitioner as a “hunter” who
became “hunted.” As set forth above, co-counsel testified that he did not object for tactical
reasons, and we do not second-guess tactical decisions. See Henry Floyd Sanders v. State,
No. M2019-00397-CCA-R3-PC, 2020 WL 2394992, at *11 (Tenn. Crim. App., at
Nashville, May 12, 2020). We note that it is improper for a prosecutor to characterize a
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defendant as an animal or a beast. Darden v. Wainwright, 477 U.S. 168, 180 (1986); see
also State v Thomas, 158 S.W.3d 361, 413-14 (Tenn. 2005) (holding prosecutor repeatedly
referring two co-defendants as “greed and evil” was improper); State v. Bates, 804 S.W.2d
868, 881 (Tenn. 1991) (holding prosecutor’s reference to defendant as a “rabid dog” was
“patently improper”); State v. Thomas Dee Huskey, No. E1999-00438-CCA-R3-CD, 2002
WL 1400059, at *129 (Tenn. Crim. App., at Knoxville, June 28, 2002) (holding
prosecutor’s reference to defendant as a “human predator” was “derogatory and
improper”); State v. Tyson, 603 S.W.2d 748, 754 (Tenn. Crim. App. 1980) (holding
prosecutor’s referring to defendant as a “rat” was improper). However, Petitioner has cited
no authority to support his argument that “hunter” has the same animalistic connotation as
“predator.” The prosecutor used the word “predator” one time in closing argument in
reference to the jury as the “ultimate of predators,” not in reference to Petitioner.

Even if we agreed with Petitioner that the use of the term “hunter” was improper,
we would apply the Buck factors to determine whether the use of that term affected the
outcome of the trial to Petitioner’s prejudice. In reviewing the complained of conduct in
light of the context of the facts of the case, we note that the prosecutor’s reference to
Petitioner as a “hunter” related to Petitioner’s trial testimony that he was specifically
searching for a car to steal. The prosecutor’s use of the term “hunted” refers to the fact
that after the death of the victim, the police began searching for Petitioner and the stolen
vehicle. Under the second Buck factor, we note that no curative instructions were given
regarding the terms in question primarily because trial counsel did not object. However,
the trial court instructed the jury that statements of counsel are not evidence and are to be
disregarded if not supported by the evidence. Again, the jury is presumed to have followed
the instructions of the court. Reid, 164 S.W.3d at 346. There is nothing from which we
can discern the prosecutor’s specific intent when using these references other than in the
context of the facts of the case. As concluded by the post-conviction court, the State’s case
was strong in both the guilt and sentencing phases, especially in light of Petitioner’s
testimony and the strength of the aggravating factors. Thus, while the prosecution’s
repeated use of “hunter,” “hunted,” and “prey” could potentially be seen as improper, after
application of the Buck factors, we conclude that the argument did not undermine the
fundamental fairness of the trial. Therefore, we conclude that trial counsel did not render
deficient performance by failing to object to these terms. Additionally, Petitioner failed to
established any prejudice resulting from these statements.

Petitioner also claims that appellate counsel failed to raise any preserved or
unpreserved claims of prosecutorial misconduct on direct appeal, despite trial counsel
raising seven separate instances of misconduct in the motion for new trial. Again,
Petitioner failed to present any evidence during the post-conviction hearing regarding
appellate counsel’s strategy in handling the appeal. Appellate counsel did not testify, and
Petitioner presented no evidence to overcome the presumption that appellate counsel made
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a reasonable strategic decision as to which issues to raise on appeal. See Carpenter, 126
S.W.3d at 887-88. Additionally, because Petitioner has not established any prejudice
resulting from these statements by the prosecutor, he has not established that he would have
been entitled to plain error relief had the issue been raised on direct appeal. See Jerry
Phillips v. State, No. E2016-01083-CCA-R3-PC, 2017 WL 3475529, at *8 (Tenn. Crim.
App., at Knoxville, Aug. 14, 2017).

D. Prosecutor’s Conflict of Interest

Petitioner argues that Gen. Weirich, by virtue of her husband’s and mother-in-law’s
connections with the victim and some of the witnesses in this case, operated under a conflict
of interest and an appearance of impropriety that violated his constitutional rights.
Petitioner argues that “[Gen.] Weirich’s enforcement decisions in this case would appear,
to a reasonable objective observer, to be motivated at least in part by personal interest
arising from a familial fiduciary relationship with the victim and amity with his adopted
family.” Citing the alleged Batson violations and improper argument discussed previously,
Petitioner argues that his trial was “tainted” by Gen. Weirich’s “personalized zeal to
execute” Petitioner. Petitioner asserts that because the prosecutor is a “minister of justice,”
the need for an impartial prosecutor is comparable to the constitutional right to an impartial
judge. Petitioner argues that the participation of a conflicted prosecutor is a structural
constitutional error that compromises the integrity of the judicial process and requires that
his conviction and sentence be reversed and remanded for a new trial.

The State responds that the post-conviction court properly determined that this issue
was waived because Petitioner failed to raise it at trial or on direct appeal. However, as
Petitioner correctly points out, the post-conviction court did not actually make any findings
of fact or conclusions of law with regard to this specific issue.20 The confusion seems to
arise from the fact that Claim 64 in the Amended Petition refers to both the prosecution’s
abuse of discretion in seeking the death penalty and conflict of interest. Most of the
argument presented in Claim 64 is directed to the abuse of discretion “resulting from a
conflict of interest between the prosecution’s duties as an advocate and the duties as a
minister of justice.” However, the last sentence of that section states, “The prosecution
labored under a conflict due to professional and personal ties to the Catholic Community,
including witnesses and the deceased.” The personal conflict of interest issue was clearly

20
Although Petitioner asserts that the issue could not have been raised at trial due to Gen. Weirich’s
failure to disclose the existence of the relationship, he does not cite or argue Tennessee Code Annotated
section 40-30-106(g)(2), which provides an exception to the waiver rule if “[t]he failure to present the
ground was the result of state action in violation of the federal or state constitution.” Accordingly, we make
no findings with regard to the applicability of that statutory exception. We also note that Petitioner does
not argue trial or appellate counsel’s failure to raise the disqualification issue as a ground for ineffective
assistance of counsel. See Klein Adlei Rawlins v. State, No. M2010-02105-CCA-R3-PC, 2012 WL
4470650, at *12 (Tenn. Crim. App., at Nashville, Sept. 27, 2012).
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litigated by the parties throughout the post-conviction proceedings, including the issue of
whether Gen. Weirich’s mother-in-law would be subpoenaed from out of state, and the
post-conviction court summarized the relevant testimony in its final order. However, the
section of the post-conviction court’s order addressing Claim 64 only addresses the issue
regarding the prosecution’s abuse of discretion in seeking the death penalty.

A post-conviction court is required to set forth in its written order “all grounds
presented” and “state the findings of fact and conclusions of law with regard to each
ground.” T.C.A. § 40-30-111(b). While this provision has been construed as mandatory,
a post-conviction court’s failure to fully comply does not necessitate reversal since the
primary intent of the requirement is to facilitate appellate review. See State v. Swanson,
680 S.W.2d 487, 489 (Tenn. Crim. App. 1984); see also John Brent v. State, No. W2018-
01968-CCA-R3-PC, 2020 WL 1972332, at *6 (Tenn. Crim. App., at Jackson, Apr. 24,
2020). Given the testimony presented at the evidentiary hearing and the post-conviction
court’s general denial of the petition, the record before this court is sufficient for
meaningful appellate review of this issue. Because the post-conviction court did not
specifically find that this issue was waived by Petitioner’s failure to raise it at trial or on
direct appeal, we shall proceed to consider it on the merits.

Generally speaking, “a prosecutor in a criminal case could be disqualified where
there was an actual conflict of interest that prevented the prosecutor from exercising
independent judgment free of ‘compromising interests and loyalties.’” State v. Davis, 141
S.W.3d 600, 613 (Tenn. 2004) (quoting State v. Culbreath, 30 S.W.3d 309, 312 (Tenn.
2000)). “An actual conflict of interest is usually defined in the context of one attorney
representing two or more parties with divergent interests.” State v. Tate, 925 S.W.2d 548,
552 (Tenn. Crim. App. 1995). “Even if there was no actual conflict of interest,
disqualification could also be based on an appearance of impropriety.” Davis, 141 S.W.3d
at 613 (citing Culbreath, 30 S.W.3d at 313). An appearance of impropriety exists when
“an ordinary knowledgeable citizen acquainted with the facts would conclude that the . . .
representation poses substantial risk of disservice to either the public interest or the interest
of one of the clients.” Clinard v. Blackwood, 46 S.W.3d 177, 187 (Tenn. 2001) (citation
omitted). The Tennessee Supreme Court has emphasized that prosecutors, in particular,
have an obligation to avoid even the appearance of impropriety because “an appearance of
impropriety on the part of a government attorney will inevitably harm not only the
individual attorney, but also the entire system of government that allows such improprieties
to take place.” Culbreath, 30 S.W.3d at 316 (citation omitted).

Regardless of any ethical concerns justifying disqualification of a prosecutor, the
question this court must answer in the post-conviction context is whether the involvement
of an allegedly conflicted prosecutor violated Petitioner’s constitutional rights such that his
conviction and sentence are rendered void or voidable. See T.C.A. § 40-30-103. The Due
Process Clause protects a defendant’s right to a fair and impartial tribunal. See Marshall
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v. Jerrico, Inc., 446 U.S. 238, 242 (1980). However, the same degree of impartiality
expected of judges does not apply to prosecutors. Id. at 248 (“Prosecutors need not be
entirely ‘neutral and detached.’”) (citation omitted); see also Young v. U.S. ex rel. Vuitton
et Fils S.A., 481 U.S. 787, 810 (1987) (noting that “the standards of neutrality for
prosecutors are not necessarily as stringent as those applicable to judicial or quasi-judicial
officers”). Although “prosecutors are expected to be impartial in the sense that they must
seek the truth and not merely obtain convictions,” they are still advocates within an
adversarial system who “are expected to prosecute criminal offenses with zeal and vigor
within the bounds of the law and professional conduct.” Culbreath, 30 S.W.3d at 314
(citing Berger v. United States, 295 U.S. 78, 88 (1935)); see also Marshall, 446 U.S. at 248
(“In an adversary system, [prosecutors] are necessarily permitted to be zealous in their
enforcement of the law.”). However, a defendant’s right to due process may be implicated
“where enforcement decisions are motivated by personal interest, financial or otherwise,”
on the part of the prosecutor.21 State v. Eldridge, 951 S.W.2d 775, 782 (Tenn. Crim. App.
1997) (citing Marshall, 446 U.S. at 249-250).

Courts of this state have found due process violations when a private prosecutor was
compensated by a special interest group and acted with very little oversight from the
District Attorney, Culbreath, 30 S.W.3d at 318, and when a privately retained prosecutor
also represented the victim in a civil suit arising from the same incident as the criminal
prosecution, Eldridge, 951 S.W.2d at 782.22 Unlike the special prosecutors in Culbreath
and Eldridge, Gen. Weirich was a public prosecutor employed full-time by the District
Attorney’s Office, and she did not have a competing duty of loyalty to the victim as a client
or a financial interest in the outcome of this case. See State v. Johnson, 538 S.W.3d 32, 55
(Tenn. Crim. App. 2017) (“The prosecutor is not an advocate for the victim of a crime or
the witnesses for the State but is instead the representative of the sovereign state of
Tennessee[.]”). To the extent that her husband’s representation of the victim with regard
to the victim’s will and estate created a conflict of interest that could be imputed to Gen.
Weirich, we do not believe that this conflict rose to the level of a due process violation
given that the outcome of the criminal prosecution was completely irrelevant to the
outcome of the probate case, which had concluded months before Gen. Weirich became
involved in the trial of this case. Cf. State v. Grover L. Parks, No. E2010-02557-CCA-R3-
CD, 2012 WL 525500, at *6 (Tenn. Crim. App., at Knoxville, Feb. 17, 2012) (finding no

21
Other constitutional rights may be implicated when a defendant’s former attorney is employed
by a district attorney’s office, “including his privilege against self-incrimination, his right to the effective
assistance of counsel, and his right to a fair and impartial trial and due process of law.” State v. Coulter,
67 S.W.3d 3, 32 (Tenn. Crim. App. 2001) (citation omitted). However, such a situation is not applicable
to the facts of this case.
22
We note that Tennessee maintains the common law practice of allowing a victim or the victim’s
family to retain an attorney to assist in the prosecution of a criminal offense, see T.C.A. § 8-7-401, and that
the statute has been held to be facially constitutional. See State v. Bennett, 798 S.W.2d 783, 786 (Tenn.
Crim. App. 1990).
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conflict of interest or due process violation when “[t]he special prosecutor received the
fixed fee from [the victim] prior to the commencement of these criminal proceedings
against the [d]efendant, and the fee was not tied to the outcome of the criminal case”).

This case does not involve a conflict of interest in the traditional sense of competing
loyalties to current or former clients. Instead, Petitioner complains that Gen. Weirich had
a personal interest in the outcome of this case beyond her professional interest as a
representative of the State of Tennessee. As characterized by the Second Circuit Court of
Appeals, “the claim is not that the prosecutor had an interest in opposition to [her] proper
one in securing an indictment and a conviction; it is rather that [s]he had an additional and
impermissible reason in forwarding the prosecution.” Wright v. United States, 732 F.2d
1048, 1056 n.7 (2d Cir. 1984). It would appear that this is an issue of first impression in
Tennessee. From what this court can gather, most jurisdictions that have addressed the
issue of prosecutorial disqualification due to a personal relationship with the victim have
done so based upon either general ethical concerns or a local statutory rule rather than
constitutional due process principles. See Christopher Vaeth, Annotation, Disqualification
or Recusal of Prosecuting Attorney Because of Relationship with Alleged Victim or
Victim’s Family, 12 A.L.R.5th 909 (1993). From those cases that do address the
constitutional implications of a prosecutor’s personal conflict of interest, it would appear
that the burden is on Petitioner to show not merely the appearance of impropriety created
by the existence of a relationship, but actual misconduct on the part of the prosecutor that
rendered Petitioner’s trial unfair.

For example, in Newman v. Frey, 873 F.2d 1092, 1093-94 (8th Cir. 1989), the
Eighth Circuit Court of Appeals held that the defendant’s claim regarding the prosecutor’s
personal conflict of interest would not warrant federal habeas corpus relief because the
defendant did “not suggest the prosecutor’s relationship with the murder victim led to any
misconduct” and the state court had found that he was not deprived of a fair trial. The
factual allegations in Newman are strikingly similar to the case at bar. On direct appeal of
the defendant’s conviction, the Missouri Supreme Court noted that the prosecutor’s
personal and professional relationship with the victim included serving as a pallbearer at
the victim’s funeral and representing the victim’s wife in an estate matter. State v.
Newman, 605 S.W.2d 781, 787 (Mo. 1980). Additionally, the defendant cited the
prosecutor’s “rather emotional” closing argument as evidence that he had not received a
fair trial. Id. The Missouri Supreme Court concluded that the trial court did not abuse its
discretion in denying the defendant’s motion to disqualify the prosecutor because the
defendant failed “to produce any action on the part of the prosecutor which was unfair or
reflected excessive personal concern in the outcome of the case.” Id. at 787-88.

In Wright, 732 F.2d at 1055, the Second Circuit Court of Appeals examined a
collateral attack on an indictment alleging that the prosecutor who presented the
defendant’s case to the grand jury was married to a political opponent of the defendant who
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had actively sought investigation and prosecution of the defendant’s alleged corruption.
The court stated that the defendant was entitled to a “disinterested” prosecutor, which
although “not altogether easy to define,” did not include one who “has, or is under the
influence of others who have, an axe to grind against the defendant, as distinguished from
the appropriate interest that members of society have in bringing a defendant to justice with
respect to the crime with which he is charged.” Id. at 1056. However, the court noted that
“an error that may justify reversal on direct appeal will not necessarily support a collateral
attack on a final judgment.” Id. at 1056 (quoting United States v. Addonizio, 442 U.S. 178,
184 (1979)). The court found that the competing interest on the part of the prosecutor’s
wife “was not a pecuniary interest in utilizing the criminal process to further her position
in civil litigation but a public one in the condemnation of a man whom she thought, whether
for good reasons or for bad, to have violated the public trust.” Id. at 1058 (comparing the
case to the “manifest impropriety” in Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967),
where a prosecutor simultaneously represented the defendant’s wife in a divorce
proceeding and offered to dismiss an assault charge in exchange for a favorable property
settlement). The court concluded that in the absence of any evidence of selective
prosecution or specific misconduct, the prosecutor’s participation in the defendant’s case,
though “ill advised,” did not deprive the defendant of due process of law. Id.

In People v. Vasquez, 137 P.3d 199, 203 (Cal. 2006), the Supreme Court of
California held that recusal of the District Attorney’s office was warranted under a state
statute when the parents of one of the defendants were long-time employees of that office
and the prosecutor on the case admitted that concern about the appearance of that
relationship influenced her discretionary decisions, even though she denied knowing the
parents personally. However, the court concluded that “the error was not of constitutional
dimension.” Id. at 206. After noting that “a number of courts have declined to find a due
process violation where the prosecutor is alleged merely to have a personal interest that
might add to his or her zeal,” id. at 208 (discussing Wright, 732 F.2d at 1055-58), the
Vasquez court eloquently explained its reasoning as follows:

That personal influences on a prosecutor are not always regarded as
creating so substantial a conflict as to deprive the defendant of fundamental
fairness is not surprising. District attorneys, as people, inevitably hold
individual personal values and allegiances and feel varying emotions relating
to their work. As public officeholders, they may also have political
ambitions or apprehensions. But that a public prosecutor might feel
unusually strongly about a particular prosecution or, inversely, might hesitate
to commit to a prosecution for personal or political reasons does not
inevitably indicate an actual conflict of interest, much less a constitutional
bar to prosecution. . . .

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 Even as regards judicial disqualification, the United States Supreme
Court has distinguished between “matters of kinship [and] personal bias,”
which “seem generally to be matters merely of legislative discretion,” and a
judge’s “direct, personal, substantial pecuniary interest in reaching a
conclusion against” a defendant, which deprives the defendant of due
process. . . .

The Supreme Court’s postulate that pecuniary conflicts of interest on
a judge’s or prosecutor’s part pose a constitutionally more significant threat
to a fair trial than do personal conflicts of interest may be somewhat
counterintuitive, for common experience tells us that personal influences are
often the strongest. But according “matters of kinship [and] personal bias”
dispositive constitutional importance in this context would import into
constitutional law a set of difficult line-drawing problems. As neither judges
nor prosecutors can completely avoid personal influences on their decisions,
to constitutionalize the myriad distinctions and judgments involved in
identifying those personal connections that require a judge’s or prosecutor’s
recusal might be unwise, if not impossible. The high court’s approach to
judicial conflicts generally leaves that line-drawing process to state
disqualification and disciplinary law, with “only the most extreme of cases”
being recognized as constitutional violations.

Id. at 209-10 (citing Tumey v. Ohio, 273 U.S. 510, 523 (1927)) (other internal citations
omitted). The court concluded that the prosecutor’s conflict of interest in that case did not
rise to the level of a due process violation because the prosecutor did not have “a direct,
substantial interest in the outcome or conduct of the case separate from [her] proper interest
in seeing justice done” and because the defendants did not establish “any specific
prosecutorial actions taken as a result of the conflict that deprived them of a fundamentally
fair proceeding.” Id. at 210.

Applying the rationale of these cases to the present case, we hold that Petitioner has
not established any personal conflict of interest on the part of Gen. Weirich that rises to the
level of a due process violation. There is no evidence that the victim’s church family had
any kind of personal vendetta or “axe to grind” against Petitioner. See Wright, 732 F.2d at
1056. In fact, lead counsel testified that Mr. Leech told him they were “not out for blood,”
and the defense attempted to present evidence during the sentencing hearing that the
Catholic Church is generally opposed to the imposition of the death penalty. Additionally,
many of the major enforcement decisions, such as whether to seek the death penalty and
whether to offer a plea bargain, were made prior to Gen. Weirich’s involvement in
Petitioner’s case. As discussed more fully above, Petitioner has not established that Gen.
Weirich committed any prosecutorial misconduct in either her peremptory challenges or
her closing arguments sufficient to render his trial fundamentally unfair. In short,
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Petitioner has not shown that Gen. Weirich had “a direct, substantial interest in the outcome
or conduct of the case separate from [her] proper interest in seeing justice done.” Vasquez,
137 P.3d at 210. Even if this court were to agree that Gen. Weirich’s participation in
Petitioner’s trial was “ill advised” given her family’s connections to the victim, Petitioner
has not established that he was deprived of a fair trial or his right to due process. Wright,
732 F.2d at 1058. Accordingly, Petitioner is not entitled to post-conviction relief on this
claim.

V. Petitioner’s Additional Claims of Ineffective Assistance of Counsel

A. Claims Related to Trial Counsel’s Handling of Voir Dire

Petitioner argues that trial counsel rendered ineffective assistance during jury
selection. “The ultimate goal of voir dire is to ensure that jurors are competent, unbiased
and impartial.” Smith v. State, 357 S.W.3d 322, 347 (Tenn. 2011) (quoting State v.
Hugueley, 185 S.W.3d 356, app. 390 (Tenn. 2006)). “By posing appropriate questions to
prospective jurors, a defense lawyer is able to exercise challenges in a manner that ensures
the jury passes constitutional muster.” William Glenn Rogers v. State, No. M2010-01987-
CCA-R3-PD, 2012 WL 3776675, at *36 (Tenn. Crim. App. , at Nashville, Aug. 30, 2012)
(citing United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973)). However, “there is no
requirement that counsel ask any specific questions of potential jurors during the voir dire
process[.]” Smith, 357 S.W.3d at 347. As this court has previously recognized, trial
counsel’s “actions during voir dire are considered to be matters of trial strategy,” which is
generally entitled to deference “unless counsel’s decision is shown to be so ill-chosen that
it permeates the entire trial with obvious unfairness.” William Glenn Rogers, 2012 WL
3776675, at *36 (quoting Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001)).
Even if a petitioner were to establish that counsel’s performance during voir dire was
objectively unreasonable, he would not be entitled to post-conviction relief unless he
establishes that the resulting jury was not impartial. Smith, 357 S.W.3d at 348.

As an initial matter, we agree with the post-conviction court’s assessment that
Petitioner’s “ability to show prejudice is limited” because he failed to present the testimony
of any members of the jury pool or any other evidence that the jury that ultimately rendered
a verdict in this case was not impartial. Petitioner presented no proof that any of the jurors
were actually biased, nor alleged any of the limited circumstances in which bias may be
presumed. See id. (holding that the court had “never presumed bias absent either an
affirmative statement of bias, willful concealment of bias, or failure to disclose information
that would call into question the juror’s bias, and we decline to do so now”). This failure
to establish prejudice alone would be a sufficient basis on which to deny this claim for
relief. See Henley, 960 S.W.2d at 580.

1. Failing to Question Jurors about Racial Bias
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 Petitioner claims that trial counsel were deficient for failing to “question[] jurors
regarding their attitudes on race” given that he was a black man accused of killing a white
victim. The only proof Petitioner submitted in support of this claim was lead counsel’s
outline of potential voir dire topics that included a section on racial prejudice, but Petitioner
failed to ask why lead counsel did not pursue this line of inquiry. Thus, Petitioner failed
to overcome the presumption that counsel made a reasonable strategic decision. Moreover,
Petitioner failed to present any proof to support his generalized assertions of potential racial
bias in the jury pool or to overcome the post-conviction court’s finding that “race had
nothing to do with the facts of this case.” Additionally, the post-conviction court noted
that six of the twelve jurors in this case were African American, consistent with the
demographic composition of Shelby County. Finally, Petitioner failed to even allege how
asking such questions would have affected the outcome of his proceedings so as to establish
prejudice.

2. Failing to Request Individual Voir Dire

Petitioner claims that trial counsel were deficient for failing to request individual
voir dire. However, Petitioner has not established that failing to file a motion requesting
individual voir dire was objectively unreasonable under prevailing professional norms.
“The prevailing practice in this state is to examine the jurors collectively rather than
individually” unless “there is a significant possibility that a prospective juror has been
exposed to potentially prejudicial material.” State v. Oody, 823 S.W.2d 554, 563 (Tenn.
Crim. App. 1991). “Indeed, even in a capital case, there is no requirement that death
qualification of a capital jury must be conducted by individual, sequestered voir dire.”
State v. Austin, 87 S.W.3d 447, 471 (Tenn. 2002) (appendix) (citing State v. Stephenson,
878 S.W.2d 530, 540 (Tenn. 1994)). Other than citing an article suggesting that jurors may
be more likely to admit bias in an individual setting and asserting that case law supports
conducting individual voir dire “in sensitive cases,” Petitioner has not asserted any reason
why individual voir dire was necessary in this case23 or suggested how the outcome of this
case would have been different had individual voir dire been requested by counsel.

3. Failing to Utilize Jury Questionnaires and a Jury Selection Expert

Petitioner argues that trial counsel were deficient for failing to utilize jury
questionnaires and failing to consult a jury selection expert. This court has held that jury
questionnaires are “simply preliminary tools to foster appropriate voir dire . . . and [a]re
not designed as mechanisms to eliminate potential jurors solely on the basis of answers
23
As discussed further below, Petitioner cites the lack of individual voir dire as a reason why a
mistrial was necessary when certain jurors stated that they would not credit Dr. Smith’s testimony.
However, Petitioner did not argue or establish that any publicity surrounding Dr. Smith’s legal issues was
a reason that individual voir dire should have been granted in this case.
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given without the benefit of legal instruction from a trial judge.” William Glenn Rogers,
2012 WL 3776675, at *37. Moreover, “the decision of how to conduct voir dire of
prospective jurors rests within the sound discretion of the trial court.” State v. Howell, 868
S.W.2d 238, 247 (Tenn. 1993). The post-conviction court noted that although it had used
questionnaires many times in the past, it did not generally allow the practice unless there
was a showing of a “specific need,” such as a case involving “a particularly sensitive issue”
or “negative publicity[.]” Additionally, a defendant must show a “particularized need” for
the appointment of an expert, which requires more than a “conclusory statement that a jury
selection expert is necessary for an effective defense in every capital case.” State v.
Dellinger, 79 S.W.3d 458, 469 (Tenn. 2002). Petitioner failed to present any evidence of
a specific need for either the use of jury questionnaires or for the appointment of a jury
selection consultant. Moreover, Petitioner failed to “demonstrate how a jury questionnaire
or an expert in the field of jury selection might have made a difference,” so this court is
“unable to find prejudice.” Richard Lloyd Odom v. State, No. W2015-01742-CCA-R3-
PD, 2017 WL 4764908, at *20 (Tenn. Crim. App., at Jackson, Oct. 20, 2017) (quoting
Prentiss Phillips v. State, No. W2004-01626-CCA-R3-PC, 2005 WL 1123612, at *6
(Tenn. Crim. App., at Jackson, May 12, 2005)).

4. Failing to Life Qualify and Rehabilitate Jurors

Petitioner makes a conclusory assertion that trial counsel were ineffective because
they failed to “life qualify” jurors and to rehabilitate potential jurors who expressed
reservations about imposing the death penalty. As the Sixth Circuit has recognized,
“Morgan [v. Illinois, 504 U.S. 719 (1992)] does not mandate that life-qualifying questions
be asked of potential jurors in every case” and suggests that the decision to ask such
questions is “a matter of strategy”; thus, “failure to life-qualify a jury is not per se
ineffective assistance of counsel.” Stanford v. Parker, 266 F.3d 442, 454 (6th Cir. 2001);
see also Tyrone Chalmers v. State, No. W2006-00424-CCA-R3-PD, 2008 WL 2521224,
at *27 (Tenn. Crim. App., at Jackson, June 25, 2008) (citing Hartman v. State, 896 S.W.2d
94, 105 (Tenn. 1995)). In fact, trial counsel did ask questions regarding the potential jurors’
ability to consider a life sentence and to weigh mitigating evidence. Petitioner failed to
present any proof at the post-conviction hearing to overcome the presumption that trial
counsel’s failure to ask additional questions was a strategic decision or to show that such
failure resulted in prejudice. Additionally, Petitioner failed to identify any potential jurors
who were excused for cause that could or should have been rehabilitated by trial counsel.

5. Failing to Object

Next, Petitioner argues that trial counsel were ineffective for failing to object when
the prosecutor extracted pledges from potential jurors that they would impose the death
penalty; asked questions that presumed a conviction and sentencing phase; referred to the
imposition of the death penalty as “doing the right thing”; and improperly defined and
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denigrated mitigating evidence. Like the previously discussed issues, this claim suffers for
a lack of proof since Petitioner failed to ask trial counsel any questions regarding this issue.
Moreover, Petitioner has not established that any proposed objections would have been
sustained. While an attorney may not extract a pledge by asking a prospective juror how
they will vote, State v. King, 718 S.W.2d 241, 246 (Tenn. 1986), this court has held that it
is not improper for the State to ask a prospective juror if they can follow the law and sign
their name to a death verdict if the State has met its burden. Detrick Cole, 2011 WL
1090152, at *13. Additionally, while the post-conviction court agreed that the prosecutor’s
characterization of mitigation evidence as “something that makes it not so bad” was an
inaccurate statement of the law, the court noted that it was used only once during voir dire
and found, as discussed above in the context of the prosecutor’s closing argument, that it
did not prejudice Petitioner because the proper definition was given in the trial court’s
instructions. See Reid, 164 S.W.3d at 346 (“The jury is presumed to follow instructions.”).
Petitioner also complains that the prosecutor improperly denigrated the role of mitigation
by telling the jurors “we don’t judge people, we don’t act as jurors, we don’t assess your
credibility based upon . . . how sorry we might feel for you because of what you might
have been through[.]” However, as found by the post-conviction court, this statement was
taken out of context and is actually part of a larger statement where the prosecutor was
telling the jurors that “[t]here is no room for sympathy nor prejudice in this courtroom,”
which is consistent with the law. See Smith, 893 S.W.2d at 921.

Petitioner briefly asserts that appellate counsel was ineffective for failing to raise
this issue on appeal for review under the plain error doctrine. However, appellate counsel
did not testify, and Petitioner presented no evidence to overcome the presumption that
appellate counsel made a reasonable strategic decision as to which issues to raise on appeal.
See Carpenter, 126 S.W.3d at 887-88. Additionally, because Petitioner has not established
any prejudice resulting from these statements by the prosecutor, he has not established that
he would have been entitled to plain error relief had the issue been raised on direct appeal.
See Jerry Phillips, 2017 WL 3475529, at *8.

6. Failing to Move for a Mistrial

Petitioner argues that trial counsel were ineffective for “failing to move for a mistrial
when the venire was tainted regarding disgraced pathologist O.C. Smith,” who had been
retained to testify for the defense.24 Dr. Smith was the former Medical Examiner for Shelby
County who was removed from the position after he was charged with possession of
explosives and lying to investigators, a case that ultimately ended in a mistrial. During

24
Petitioner makes a conclusory assertion that the decision to retain “a publicly discredited expert”
was “objectively unreasonable.” Because Petitioner cites no authority to support this assertion, the issue is
waived. Tenn. Ct. Crim. R. 10(b). Moreover, trial counsel’s selection of an expert witness is a strategic
decision that is generally granted deference under the Strickland standard. See Kendrick v. State, 454
S.W.3d 450, 475 (Tenn. 2015).
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voir dire, trial counsel asked whether any of the potential jurors recognized Dr. Smith’s
name. After some affirmative responses, trial counsel asked if those jurors would “give
his testimony as much credence as you would give anybody else’s testimony” or if they
would “automatically disbelieve anything he said[.]” One potential juror indicated that she
“would try to listen and be impartial” but that she did not know if she could “[j]ust from
what I’ve seen on the news[.]” Later, another potential juror indicated that he knew about
Dr. Smith’s “situation and what happened, so it might be a little difficult” to assess his
credibility. Neither of these potential jurors volunteered any details of what they knew
about Dr. Smith, and neither ultimately served on Petitioner’s jury.

A mistrial is only appropriate when there is a manifest necessity for such action
because an event has occurred that precludes an impartial verdict and a miscarriage of
justice would result if the trial were to continue. See State v. Jones, 568 S.W.3d 101, 126
(Tenn. 2019) (citations omitted). “Unless there is evidence that the jury which heard the
case was prejudiced or biased due to comments made by a prospective juror during voir
dire, such comments are not grounds for a mistrial.” State v. Ricky Thompson, No. E2015-
02464-CCA-R3-CD, 2017 WL 1536479 (Tenn. Crim. App., at Knoxville, Apr. 27, 2017)
(citing State v. Brown, 795 S.W.2d 689, 696 (Tenn. Crim. App. 1990)). Petitioner
presented no evidence that the jury that heard his case was biased or in any way influenced
by these comments about Dr. Smith’s credibility. Further, even if the jury was predisposed
to not accredit Dr. Smith’s testimony, Petitioner has not suggested how he was prejudiced
given that he was ultimately acquitted of premeditated first degree murder. Thus, Petitioner
has not established either deficient performance or prejudice.

7. Failing to Use All Peremptory Challenges

Petitioner argues that trial counsel were ineffective for failing to preserve for appeal
any potential jury claims by exercising all of their peremptory challenges. “[O]nly where
a defendant exhausts all of his peremptory challenges and is therefore forced to accept an
incompetent juror can a complaint about the jury have merit.” Steven Ray Thacker v. State,
No. W2010-01637-CCA-R3-PD, 2012 WL 1020227, at *53 (Tenn. Crim. App., at Jackson,
Mar. 23, 2012) (citing State v. Coury, 697 S.W.2d 373, 379 (Tenn. Crim. App. 1985)).
However, trial counsel is not required to use all of the allocated peremptory challenges but
instead must make “a strategic decision . . . in order to ensure the best possible jury for his
client.” Michael D. Green v. State, No. E2012-01875-CCA-R3-PC, 2013 WL 6529310, at
*8 (Tenn. Crim. App., at Knoxville, Dec. 11, 2013). Petitioner did not present any evidence
to overcome the presumption that trial counsel made a reasonable strategic decision not to
exercise any additional challenges. Moreover, as found by the post-conviction court, none
of the jury selection issues identified by Petitioner would have entitled him to relief on
appeal even if they had been properly preserved. Thus, Petitioner has not established that
trial counsel were deficient or that he suffered any prejudice. Petitioner is not entitled to
relief on any of these claims.
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 B. Claims Related to Petitioner’s Anti-Psychotic Medication

Petitioner argues that trial counsel were ineffective for failing to investigate the
effects of the prescribed anti-psychotic medication Petitioner was taking before and during
trial. Although Petitioner was determined to be competent to stand trial when he was
evaluated by MTMHI in 2006, Petitioner asserts that he was rendered incompetent due to
the sedative-like effects of his anti-psychotic medication by the time of the February 2008
trial, which affected his ability to consider a plea offer, assist in his defense, and testify
coherently. In order to be competent to stand trial, “a defendant must possess the capacity
to understand the nature and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense.” Wilcoxson v. State, 22 S.W.3d 289, 305 (Tenn.
Crim. App. 1999). In order to determine whether trial counsel was deficient for failing to
challenge a defendant’s competency, “we must determine whether [trial] counsel had
reasonable cause to raise the issue[.]” Id. at 306.

Despite the fact that Petitioner presented several witnesses who testified that
Petitioner seemed “doped up” and “out of it” in the jail prior to trial, the post-conviction
court accredited the testimony of both lead counsel and co-counsel that Petitioner did not
seem noticeably impaired and seemed to understand the nature of the proceedings. This
court must “defer to the credibility determinations of the [post-conviction] court, which
had the opportunity to hear the testimony of” the witnesses. Arroyo v. State, 434 S.W.3d
555, 561 (Tenn. 2014). Additionally, trial counsel had access to the report from MTMHI
that found Petitioner to be competent to stand trial despite his cognitive limitations and
other psychiatric issues, for which he was prescribed medication at the time of the
evaluation. As this court has previously held, counsel “is not required to question a
diagnosis put forth by a professional expert in the field.” Christa Gail Pike v. State, No.
E2009-00016-CCA-R3-PD, 2011 WL 1544207, at *54 (Tenn. Crim. App., at Knoxville,
Apr. 25, 2011). The post-conviction court also noted its own observations during trial that
Petitioner was “well-behaved” and “often consulted with his attorneys.” Although trial
counsel both testified that Petitioner’s testimony was not helpful, the post-conviction court
found that Petitioner presented no evidence that his testimony was incoherent. Petitioner
argues that trial counsel should have questioned his competency because many of his
decisions were “irrational,” including his rejection of an offer to plead to a life sentence
and his “unrealistic” belief that at most he should have been charged with manslaughter.
However, the post-conviction court accredited trial counsel’s testimony that Petitioner
understood, but was unwilling to accept, the fact that felony murder was first degree murder
and that Petitioner was adamant that he was unwilling to plead guilty. Petitioner did not

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produce any proof otherwise.25 Petitioner has not established that trial counsel were
deficient for failing to request an additional competency evaluation of Petitioner.

Petitioner also argues that trial counsel were ineffective for failing to address
potential jurors’ attitudes regarding anti-psychotic medication during voir dire, failing to
present lay and expert testimony regarding the effects of the medication, and failing to
request a jury instruction regarding the effects of the medication as a mitigating
circumstance. Petitioner contends that trial counsel “should have contextualized
[Petitioner’s] testimony by informing the jury he was under the influence of drugs that
affected his ability to express himself and display appropriate emotion.” However, as
found by the post-conviction court, trial counsel made a strategic decision not to inform
the jury that Petitioner was taking anti-psychotic medication because of their concern that
such proof might cause the jurors to fear Petitioner. Petitioner asserts on appeal that this
was simply a “post-hoc rationalization” and that “there was not a sufficient basis to make
a strategic decision” given trial counsel’s lack of investigation into the precise dosages and
resulting effects of the medication. However, even if Petitioner’s assertion is true,
“strategic choices made after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the limitations on investigation.”
Strickland, 466 U.S. at 690-91. As discussed above, both trial counsel testified that
Petitioner was not noticeably impaired such that they should have been prompted to
investigate further, and Petitioner has produced no evidence that further investigation
would have led counsel to make a different decision. Moreover, as found by the post-
conviction court, Petitioner presented no evidence that trial counsel’s alleged deficiency in
failing to inform the jury that he was taking anti-psychotic medication affected the outcome
of the proceedings. Because the Petitioner failed to establish either deficient performance
or prejudice, he is not entitled to relief on this claim.

C. Claims Related to the Conduct of Trial

1. Exclusion of Petitioner’s Mother During Guilt Phase

Petitioner argues that trial counsel were ineffective for incorrectly advising
Petitioner that his mother could not be present during the guilt phase of trial because they
intended to present her testimony during the sentencing phase. Tennessee Rule of
Evidence 615 states that when a party invokes the rule, the trial court shall exclude the
witnesses from the trial or hearing. In State v. Jordan, the Tennessee Supreme Court held,
as an issue of first impression, that a trial court should not “automatically or mechanically

25
We note that Petitioner did not testify at the post-conviction hearing, even though Tennessee
Code Annotated section 40-30-110(a) requires a post-conviction petitioner to “give testimony at the
evidentiary hearing if the petition raises substantial questions of fact as to events in which petitioner
participated.” See Keough v. State, 356 S.W.3d 366, 370 (Tenn. 2011) (“The Act contemplates that the
petitioner’s testimony will be necessary to satisfy th[e] burden of proof.”).
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rely on Tennessee Rule of Evidence 615 to exclude mitigation proof from a capital
sentencing trial on the basis that the witness was present during the guilt/innocence phase
of the trial.” 325 S.W.3d 1, 48 (Tenn. 2010). The State asserts that because Jordan had
not been decided at the time of Petitioner’s trial, trial counsel’s advice that Petitioner’s
mother could not be in the courtroom during the guilt phase without risking her testimony
being excluded from the sentencing phase was reasonable. In addition to relying on
Jordan, Petitioner also relies on the actual practice of the trial judge in this case. During
the sentencing phase, when overruling trial counsel’s objection to Marie Leech’s testimony
on the basis that she had been present in the courtroom during the guilt phase, the trial
judge stated, “I have never prohibited a Defense mitigation witness like a mother or
someone else from being in the guilt phase of the trial, either.” In the order denying post-
conviction relief, the post-conviction court found that “had trial counsel moved to allow
Vivian Pruitt to remain in the courtroom during the guilt/innocence phase, the Court would
have permitted her to stay[.]”

Even if we were to agree that trial counsel were deficient in their misunderstanding
of the application of Rule 615 to mitigation witnesses, Petitioner has failed to establish that
he was prejudiced by his mother’s absence during the guilt phase of trial. The post-
conviction court found that “[a]lthough Petitioner may have gained an emotional benefit
from having his mother present throughout the entire trial (even though it was Petitioner’s
theory that she was a large part of the problem),” Petitioner failed to provide any legal
authority supporting his assertion that he was denied the right to a fair trial because of her
absence. In his appellate brief, Petitioner contends that the post-conviction court’s finding
“is a fundamental misunderstanding of the closeness and emotional reliance a severely
abused and neglected person can receive from a parent[.]” Petitioner asserts that “the
presence of his mother might have provided [Petitioner] emotional support” and served as
“visual evidence that someone cared about him.” However, Petitioner failed to produce
any evidence at the post-conviction hearing to support these assertions or any evidence that
the outcome of the proceedings would have been different if his mother had been present
in the courtroom during the guilt phase. Accordingly, Petitioner is not entitled to relief on
this issue.

2. Failure to Request that Petitioner be Seated at Counsel Table

Petitioner argues that trial counsel were ineffective for failing to request that
Petitioner be allowed to sit at counsel table during the trial. Rule 8.05 of the Rules of
Practice and Procedure for Shelby County Criminal Court provides that “[w]here space is
available and with permission of the Court, the defendant may sit at counsel table with his
or her attorney.” In State v. Rice, the Tennessee Supreme Court rejected a constitutional
challenge to this local rule, which “leaves to the discretion of the trial judge whether the
defendant may sit at the table with counsel.” 184 S.W.3d 646, 674 (Tenn. 2006). The Rice
court found that “[r]equiring the defendant to sit directly behind his attorneys is not the
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same as making the defendant wear prison attire or shackles in the courtroom, which would
suggest to the jury that he is a danger,” nor did it “impair the defendant’s presumption of
innocence . . . [or] impact the defendant’s ability to communicate with counsel.” Id. at
675. Petitioner relies on the supreme court’s more recent opinion in State v. Smith, which
emphasized the “statement in Rice that ‘it is the better practice to allow a defendant to sit
at counsel table.’” State v. Smith, 492 S.W.3d 224, 243 (Tenn. 2016) (quoting Rice, 184
S.W.3d at 675). However, even if a trial court abuses its discretion in denying a defendant’s
request to sit at counsel table, the defendant has the burden of showing that he was
prejudiced by the non-constitutional error. Id. at 244; see also Rice, 184 S.W.3d at 675
(holding that “a showing of prejudice is necessary in order to obtain relief”).

Given that the seating arrangement is discretionary with the trial court and may be
dependent upon the space available in the courtroom, Petitioner has produced no evidence
that trial counsel’s failure to make the request that he be allowed to sit at counsel table was
unreasonable under prevailing professional norms. Moreover, even if we were to agree
that trial counsel were deficient, Petitioner has failed to produce any evidence that he was
prejudiced. As found by the post-conviction court, Petitioner presented no proof that the
seating arrangement inhibited his ability to communicate with counsel. Petitioner’s
conclusory assertion that the practice of having a defendant sit in the row behind trial
counsel “visually reinforces racial stereotypes” is speculative at best. See State v. Antonio
Benson, No. W2017-01119-CCA-R3-CD, 2018 WL 5810004, at *12 (Tenn. Crim. App.,
at Jackson, Nov. 5, 2018), rev’d on other grounds, 600 S.W.3d 896 (Tenn. 2020). Because
Petitioner failed to establish either deficient performance or prejudice, he is not entitled to
relief on this issue.

3. Cross-Examination of the State’s Witnesses

Petitioner argues that trial counsel were deficient in their cross-examination of two
of the State’s witnesses, Dr. Chancellor and Taka Pruitt. As an initial matter, Petitioner
failed to question trial counsel on this issue or offer any evidence to overcome the
presumption that trial counsel made reasonable strategic decisions with regard to their
cross-examination of the witnesses. This court has held that “cross-examination is a
strategic and tactical decision of trial counsel, which is not to be measured by hindsight.”
State v. Kerley, 820 S.W.2d 753, 756 (Tenn. Crim. App. 1991). Further, Petitioner did not
call either witness to testify as to what the substance of their trial testimony would have
been had they been asked different questions. See Johnson v. State, 145 S.W.3d 97, 120
(Tenn. Crim. App. 2004) (citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.
1990)).

With regard to the cross-examination of Dr. Chancellor, Petitioner argues that trial
counsel “caused the introduction of prejudicial testimony supporting the State’s allegation
that [Petitioner] ‘intentionally’ beat the victim.” On cross-examination, counsel asked Dr.
- 137 -
Chancellor whether she could tell if bruises on the victim’s chest “were sustained by blows
from a hand or produced by some instrument,” and Dr. Chancellor responded that “the
pattern is suggestive of knuckles of a hand but I can’t tell you that for sure.” Petitioner
insists that this “was the first time such testimony came into evidence.” However, during
direct examination, Dr. Chancellor agreed that the victim’s injuries were consistent with
having been beaten, and trial counsel’s objection to such testimony was overruled by the
trial court.

Petitioner further complains that after this reference to the victim’s injuries being
caused by a hand, “[c]ounsel continued to evoke violent imagery and repeatedly asked the
witness how these various bruises were caused, heightening inferences of brutality and
invoking sympathy from jurors.” However, the full context of counsel’s questioning shows
that he emphasized that Dr. Chancellor could not tell what caused the bruises and that they
could have been caused by a fall onto a hard surface, which was consistent with the
defense’s theory. Dr. Chancellor responded that in her opinion, “these were intentional
injuries” because the victim had “three separate skull fractures.” Petitioner suggests that
trial counsel should have “move[d] to strike such testimony as beyond the scope of the
evidence or speculative,” but he fails to cite any legal authority that such an objection
would have been sustained. Petitioner argues that he was prejudiced because trial counsel’s
questions “appear[ed] to concede the intentional nature of Mr. Guidroz’s injuries.”
However, Petitioner was clearly not prejudiced in that manner since the jury acquitted him
of premeditated first degree murder. As found by the post-conviction court, “the defense
did an effective job of creating a possibility in the mind of the jurors that Petitioner didn’t
intend the victim’s death[.]” Petitioner has not established either deficient performance or
resulting prejudice with regard to counsel’s cross-examination of Dr. Chancellor.

With regard to the cross-examination of Taka Pruitt, Petitioner complains that trial
counsel “needlessly and prejudicially referred to the incident as an ‘attack.’” Petitioner
incorrectly states that trial counsel “introduced use of this term into the testimony” when
in fact the prosecutor had earlier referred to the victim “being attacked” during direct
examination. Moreover, Petitioner has not shown that this was an incorrect or
inappropriate characterization of what happened to the victim based on Taka Pruitt’s
description. Finally, Petitioner does not even suggest how he was prejudiced by trial
counsel’s use of this word during cross-examination.

Petitioner further argues that trial counsel failed to impeach Taka Pruitt’s testimony
that she saw blood on the ground by calling Officer LaSheka Mays to testify regarding her
police report that indicated that there was no blood. However, Officer Mays did not testify
at the post-conviction hearing and her report was not introduced as an exhibit. As the
courts of this State have repeatedly made clear:

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 To succeed on a claim of ineffective assistance of counsel for failure to call
a witness at trial, a post-conviction petitioner should present that witness at
the post-conviction hearing. “As a general rule, this is the only way the
petitioner can establish that . . . the failure to have a known witness present
or call the witness to the stand resulted in the denial of critical evidence which
inured to the prejudice of the petitioner.”

Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008) (quoting Black, 794 S.W.2d at 757);
see also Cauthern v. State, 145 S.W.3d 571, 616 (Tenn. Crim. App. 2004). This court will
not speculate as to what Officer Mays’ testimony would have been or how Taka Pruitt
would have responded if questioned on this issue. See Thompson v. State, 958 S.W.2d 156,
164 (Tenn. Crim. App. 1997). Moreover, Petitioner has not suggested how impeaching
Taka Pruitt regarding the presence or absence of blood on the ground would have resulted
in a different outcome at trial. Accordingly, Petitioner has failed to prove either deficient
performance or prejudice.

4. Petitioner’s Testimony

Petitioner argues that trial counsel were ineffective for allowing Petitioner to testify
during the guilt phase and for failing to adequately prepare him to do so. Although
Petitioner acknowledges that the decision whether to testify ultimately rests with the
defendant rather than with counsel, see Momon, 18 S.W.3d at 161 (citing Vermilye v. State,
754 S.W.2d 82, 88 (Tenn. Crim. App. 1987)), he contends that counsel may be deemed
ineffective for providing poor advice regarding the decision. However, both lead counsel
and co-counsel testified that they repeatedly advised Petitioner to testify during the
sentencing phase, not the guilt phase, and that they were surprised when Petitioner chose
to do the opposite at trial. As this court has previously recognized, “counsel’s performance
cannot be deemed deficient simply because Petitioner did not follow counsel’s advice
against testifying.” Dennis Wade Suttles v. State, No. E2008-02146-CCA-R3-PD, 2011
WL 1642640, at *25 (Tenn. Crim. App., at Knoxville, Apr. 29, 2011). Petitioner has not
alleged how trial counsel should have better prepared him to testify, especially given the
fact that they did not know that he would do so prior to trial. Although Petitioner contends
that his decision to testify after being advised that his prior convictions would be admissible
as impeachment evidence did not make “rational sense,” he does not contend that he was
not properly advised of his rights during the Momon hearing. Moreover, Petitioner did not
testify at the post-conviction hearing to establish what his trial testimony would have been
had he been better prepared. Even if Petitioner had not testified during the guilt phase, the
evidence of his guilt of felony murder was overwhelming. Accordingly, Petitioner has not
established either that trial counsel were deficient or that he was prejudiced.

5. Reference to the Victim’s Lack of Family in Closing Argument

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 Petitioner argues that trial counsel rendered deficient performance by referring to
the victim’s lack of family during the guilt phase closing argument, which prejudiced
Petitioner because “the State focused on this commentary in rebuttal closing at both the
guilt/innocence and sentencing trials, to [Petitioner’s] detriment.” During closing
argument of the guilt phase, while summarizing the testimony, lead counsel stated, “The
first witness, Mr. Leech, testified Mr. Guidroz was a devout Catholic, and he principally
went to St. Paul’s Church, had no family here, plenty of friends.” Later in his argument,
lead counsel stated:

What went on out there at [the victim’s] car? Was he beaten and body-
slammed or just pushed and his keys taken away from him? What really
happened to Lawrence Guidroz in this case? No family here. Did nobody
care about Mr. Guidroz?

(Emphasis added). The State responded directly to this statement multiple times during its
rebuttal closing argument in both the guilt and sentencing phases. The prosecutor stated,
“[lead counsel] told you all that nobody cared about Lawrence Guidroz. As a citizen of
this community, I take offense to that. As a representative of the State of Tennessee, I take
deeper offense to that.”26 The prosecutor further argued that Petitioner did not “get a half-
off coupon . . . because you happened to kill a nice old man that never married and had
kids.” Later in her argument, the prosecutor stated, “You heard that from T.J. Leech, who
was like a son to Mr. Guidroz, the same Mr. Guidroz that [lead counsel] wants you to think
nobody cared about. You’ve seen them there all week, the rows full of people.” Then,
during rebuttal closing argument for the sentencing phase, the prosecutor responded to lead
counsel’s argument about closure by stating, “How ironic today -- this is from the same
individual who said yesterday nobody cared about Mr. Guidroz. Now, all of a sudden, let’s
worry about Mr. Guidroz’s loved ones.”

As explained by the United States Supreme Court, “counsel has wide latitude in
deciding how best to represent a client, and deference to counsel’s tactical decisions in his
closing presentation is particularly important because of the broad range of legitimate
defense strategy at that stage.” Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003); see also
Torrez Talley v. State, No. W2009-02036-CCA-R3-PC, 2011 WL 1770485, at *4 (Tenn.
Crim. App., at Jackson, May 9, 2011). Although lead counsel was asked if he recalled
making the statement that “nobody care[d]” for the victim, he was not asked about his
reasoning for making such a statement. However, when lead counsel’s statement is read
in its full context, it is clear that lead counsel was not trying to disparage the victim but

26
This statement by the prosecutor, as well as the later statement, “I hope it offends you,” drew
objections from trial counsel and warnings from the trial court “to leave yourself out of this” and not argue
about “personally what offends you.” Trial counsel’s objections to some of the other statements discussed
in this section were overruled by the trial court. However, Petitioner did not include these statements by
the prosecutor in his claim regarding improper prosecutorial argument addressed above.
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was trying to emphasize the lack of investigation in this case. “The fact that a particular
strategy or tactic failed or hurt the defense, does not, standing alone, establish unreasonable
representation.” See Goad, 938 S.W.2d at 369.

However, even if we were to agree with the post-conviction court that “making that
statement may be said to be deficient performance” because it “opened the door to
damaging rebuttal argument by the State,” Petitioner has failed to establish prejudice. The
brief statement by lead counsel, and even the responses by the State that drew several
objections, cannot be said to have affected Petitioner’s convictions given the strength of
the State’s case with regard to the elements of felony murder, including Petitioner’s
testimony admitting that he intended to steal the car. Further, the post-conviction court
found that “the comment had no effect on the sentencing decision of the jury, due to the
strength of the State’s case and the rest of the proof and argument in the trial.” The
evidence presented during the post-conviction hearing does not preponderate against this
finding, and Petitioner has not established that there is a reasonable probability that the
outcome of his trial would have been different but for this statement by lead counsel.
Accordingly, Petitioner is not entitled to post-conviction relief on this claim.

D. Claims Related to Jury Instructions and the Verdict Form

Petitioner argues that trial counsel were ineffective for failing to challenge or
request certain jury instructions and that appellate counsel was ineffective for failing to
raise the issues on appeal. As an initial matter, the post-conviction court noted that its
ability to review this issue was “limited” because Petitioner did not ask trial counsel any
questions about their reasons for not objecting to the challenged instructions. In his brief,
Petitioner asserts that he was not required to ask questions regarding counsel’s strategy,
relying upon this court’s statement in Marlon Duane Kiser v. State that “there is no
requirement that trial counsel’s strategy be proven.” No. E2016-01644-CCA-R3-PD, 2017
WL 6549893, at *14 (Tenn. Crim. App., at Knoxville, Dec. 21, 2017). However, as the
Kiser court explained, while “[n]either party must prove strategy or tactics[,] . . . the burden
of proof for an ineffective assistance of counsel claim remains on the [p]etitioner.” Id.
This includes overcoming the “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. at *13 (quoting Strickland, 466 U.S.
at 688-89); see also Burt v. Titlow, 571 U.S. 12, 23 (2013) (“It should go without saying
that the absence of evidence cannot overcome the strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance.”) (internal
quotation omitted). Accordingly, the post-conviction court did not misstate the law by
noting the limited proof presented at the evidentiary hearing regarding these claims.
Moreover, regardless of any strategic rationale, neither trial nor appellate counsel will be
deemed deficient for failing to raise an issue that is without merit. See Carpenter, 126
S.W.3d at 887; Joe L. Utley v. State, No. M1999-00560-CCA-MR3-PC, 2000 WL 374916,

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at *3 (Tenn. Crim. App., at Nashville, Apr. 7, 2000) (holding that trial counsel was not
deficient for failing to make a meritless objection to a jury instruction).

1 Anti-Sympathy Instruction

Petitioner argues that the so-called “anti-sympathy” instruction,27 combined with
the instruction that the jury could consider victim impact evidence during the sentencing
phase, “effectively told [the jury that] they could consider sympathy for the victim’s
survivors but not for [Petitioner] . . . [and] precluded the jurors’ consideration of
mitigation.” The Tennessee Supreme Court has consistently held that “[a] trial judge does
not err in instructing a jury not to allow mere sympathy or prejudice to influence them in
reaching their verdict.” Smith, 893 S.W.2d at 921; see also State v. Bigbee, 885 S.W.2d
797, 814 (Tenn. 1994) (noting that the court had “on numerous occasions upheld the ‘no-
sympathy’ instruction against constitutional attack”). Petitioner notes that those cases were
decided prior to the Tennessee Supreme Court’s decision in State v. Nesbit, 978 S.W.2d
872 (Tenn. 1998), which promulgated an instruction regarding the jury’s consideration of
victim impact evidence, and asserts that there is a “tension” between the two instructions.
However, neither Smith nor Bigbee have been overruled with regard to this issue in the
years since Nesbit and are still the controlling law. Accordingly, trial counsel were not
deficient for failing to raise an objection to the “anti-sympathy” instruction.

2. Order of Instructions

Petitioner argues that trial counsel were ineffective in failing to object to the order
of the instructions, which listed the charged offenses of first degree murder before the
lesser-included offenses. However, the Tennessee Supreme Court has upheld the
constitutionality of such “acquittal-first” instructions. See State v. Davis, 266 S.W.3d 896
(Tenn. 2008). Petitioner asserts that Davis was wrongly decided and that “acquittal-first”
instructions are “inherently coercive.” See id. at 912 (Wade, J., concurring in result only).
Because this court is an intermediate appellate court, we are bound by the decisions of the
Tennessee Supreme Court. See Pendergrass, 13 S.W.3d at 397. Petitioner has not shown
a reasonable probability that Davis would have been overruled had the issue been raised in
his direct appeal.

3. Unanimity Instruction and the Consequences of the Jury’s Failure to Agree

Petitioner argues that trial counsel were ineffective for failing to object to the
“confusing nature” of the unanimity instruction during the sentencing phase and for failing
27
“The jury in no case should have any sympathy or prejudice or allow anything but the law and
the evidence to have any influence upon them in determining their verdict. They should render their verdict
with absolute fairness and impartiality as they think truth and justice dictate. Every fact and circumstance
in the case you may consider in arriving at your verdict.”
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to request “an instruction concerning the consequences of the [jury’s] failure to agree at
sentencing” that would inform the jurors “that guilt/innocence trial verdicts would not be
affected.” Tennessee Code Annotated section 39-13-204(h) specifically prohibits the trial
court from instructing the jury as to the effect of the jury’s failure to agree on a punishment.
Both this statute and the requirement that the jury unanimously agree on a sentence have
been upheld by the Tennessee Supreme Court. State v. Hester, 324 S.W.3d 1, 77 (Tenn.
2010) (citing State v. Brimmer, 876 S.W.2d 75, 87 (Tenn. 1994). Trial counsel cannot be
deemed deficient for failing to request an instruction that is prohibited by law.

4. Instructions on Mitigating Circumstances

Petitioner argues that trial counsel were ineffective for requesting instructions on
mitigating circumstances that were not supported by the evidence presented during the
sentencing phase, including that Petitioner had “significant deficits in his ad[a]ptive
behavior,” that he experienced “neglect and abandonment” during his childhood, and that
he was “possibly [ ] prenatally exposed to drugs and alcohol.” Petitioner argues that these
instructions served to “highlight the absence of mitigation.” The Tennessee Supreme Court
has “suggested . . . that trial courts instruct [capital sentencing] juries only on those
mitigating circumstances raised by the proof.” State v. Cazes, 875 S.W.2d 253, 267 (Tenn.
1994). “In the absence of a showing of prejudice, however, any such error does not require
reversal because the error generally benefits the defendant.” Id. at 267-68. Petitioner
asserts that Cazes was wrongly decided, but again we are bound by the decisions of the
Tennessee Supreme Court. Pendergrass, 13 S.W.3d at 397. The post-conviction court
found that all of the mitigating circumstances requested by counsel and charged to the jury
were supported by circumstantial evidence. Even assuming that trial counsel’s
performance was deficient, Petitioner has failed to establish any prejudice resulting
therefrom.

5. Moral Certainty

Petitioner argues that trial counsel were ineffective for failing to object to the
reference to “moral certainty” in the reasonable doubt instruction.28 Petitioner asserts that
the phrase could have confused the jury into thinking that “personal religious beliefs could
be used to augment any deficiencies of proof,” thereby “lower[ing] the prosecution’s
burden of proof” in violation of Cage v. Louisiana, 498 U.S. 39 (1990). However, the
Tennessee Supreme Court has consistently rejected such challenges to the reasonable doubt
instruction. See Carter v. State, 958 S.W.2d 620, 626 (Tenn. 1997) (quoting State v.
Nichols, 877 S.W.2d 722, 734 (Tenn. 1994)); see also State v. Hall, 976 S.W.2d 121, 159
28
“Reasonable doubt is that doubt created 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 guilt. Absolute certainty
of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required and
this certainty is required as to every element of proof needed to constitute the offense.”
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(Tenn. 1998) (appendix) (citing Victor v. Nebraska, 511 U.S. 1 (1994)) (explaining that
while the United States Supreme Court “expressed criticism of the continued use of the
‘moral certainty’ phrase, the Court did not actually hold that it was constitutionally
invalid,” and instead looked to the jury charge as a whole). Petitioner has not suggested
that the reasonable doubt instruction, when read as whole, failed to convey the necessary
level of evidentiary certainty required to comport with due process. See Nichols, 877
S.W.2d at 734.

6. Verdict Forms

Petitioner argues that counsel were ineffective for failing to challenge the language
of the verdict forms used during the sentencing phase, which stated, “We, the Jury,
unanimously find that the [S]tate has proven beyond a reasonable doubt that the statutory
aggravating circumstance or circumstances so listed above outweigh any mitigating
circumstance or circumstances” (emphasis supplied by Petitioner). Petitioner asserts that
this language prevented the jury from giving full effect to all mitigating evidence because
it implied that “the death penalty is appropriate when an aggravating circumstance
outweighs a mitigating circumstance, regardless of whether it outweighs another mitigating
circumstance or the group of mitigating circumstances as a whole.” However, this
language on the verdict form is consistent with the statutory language of Tennessee Code
Annotated section 39-13-204(g). Petitioner has not cited any authority supporting his
proposition that this statutory language is constitutionally problematic.

Because Petitioner has failed to establish that any of these claims would have been
meritorious if raised at trial or on direct appeal, he has failed to establish that either trial or
appellate counsel were ineffective. Accordingly, Petitioner is not entitled to post-
conviction relief on this issue.

VI. Petitioner’s Claims Related to the Death Penalty

A. Disproportionality of Death Penalty

Petitioner argues that the death penalty is a disproportionate sentence in this case.
Petitioner argues that the post-conviction court, in determining that this claim was
previously determined on direct appeal, “failed to consider that this claim is based on
additional evidence which could have been discovered and presented, but for the deficient
performance of trial counsel,” specifically evidence of Petitioner’s “intellectual disability,
his mitigated life circumstances, pervasive childhood trauma, and his cognitive
impairments.” To the extent that Petitioner is raising a stand-alone claim that the death
penalty is disproportionate, the post-conviction court correctly found that it was previously
determined on direct appeal. See Pruitt, 415 S.W.3d at 223. Petitioner cannot relitigate
this issue simply by presenting additional mitigating evidence. See David Lynn Jordan,
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2016 WL 6078573, at *86; Robert Faulkner v. State, No. W2012-00612-CCA-R3-PD,
2014 WL 4267460, at *85 (Tenn. Crim. App., at Jackson, Aug. 29, 2014). To the extent
that Petitioner is arguing ineffective assistance of trial counsel for failing to “develop and
present available evidence of disproportionality,” this claim appears to just be a restatement
of his claim that trial counsel were ineffective for failing to develop and present evidence
of his intellectual disability and other mitigating circumstances discussed above. To the
extent that Petitioner is arguing ineffective assistance of appellate counsel, Petitioner fails
to suggest any way in which appellate counsel was deficient in arguing the proportionality
issue on direct appeal or how any such deficiency prejudiced the outcome of his case.
Petitioner is not entitled to relief on this claim.

B. Constitutionality of the Death Penalty

Petitioner argues that the death penalty is unconstitutional because it is imposed in
an “arbitrary” manner that is “geographically and racially skewed,” because it violates
international law and treaties, and because the method of execution is unconstitutional.
Petitioner only makes a brief argument that either trial or appellate counsel were ineffective
for failing to argue “these rights under international law.” Otherwise, to the extent that
Petitioner is raising these claims as stand-alone issues, they are waived. See T.C.A. §§ 40-
30-106(g); -110(f). Moreover, the post-conviction court properly concluded that each
claim has been specifically rejected by the Tennessee Supreme Court. See State v.
Freeland, 451 S.W.3d 791, 826 (Tenn. 2014) (rejecting argument that death penalty is
unconstitutional because it is imposed in an arbitrary manner based on race and
geography); Abdur’Rahman v. Parker, 558 S.W. 3d 606, 625 (Tenn. 2018) (rejecting
constitutional challenge to current lethal injection protocol); West v. Schofield, 468 S.W.3d
482, 492 (Tenn. 2015) (finding constitutional challenge to electrocution was not ripe for
determination); State v. Odom, 137 S.W. 3d 572, 600 (Tenn. 2004) (rejecting argument
that death penalty violates international law). Because these claims are without merit,
Petitioner failed to establish either deficiency or prejudice resulting from counsel’s failure
to raise these issues at trial or on direct appeal.

VII. Cumulative Error

Finally, Petitioner argues that the cumulative effect of all of the asserted errors
violated his constitutional rights and entitle him to a new trial and/or a new sentencing
hearing. “The cumulative error doctrine is a judicial recognition that there may be multiple
errors committed in trial proceedings, each of which in isolation constitutes mere harmless
error, but which when aggregated, have a cumulative effect on the proceedings so great as
to require reversal in order to preserve a defendant’s right to a fair trial.” State v. Hester,
324 S.W.3d 1, 76 (Tenn. 2010). Consideration should be given to the nature and number
of the errors, their interrelationship, any remedial measures by the trial court, and the
strength of the State’s case. Id. (quoting United States v. Sepulveda, 15 F.3d 1161, 1196
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(1st Cir. 1993)). In the context of claims of ineffective assistance of counsel, multiple
instances of deficient performance by counsel may be considered together in assessing
whether the petitioner suffered prejudice. Tommy Dale Adams v. State, No. M2018-00470-
CCA-R3-PC, 2019 WL 6999719, at *31 (Tenn. Crim. App. at Nashville, Dec. 20, 2019);
Sylvester Smith v. State, No. 02C01-9801-CR-00018, 1998 WL 899362, at *24 (Tenn.
Crim. App., at Jackson, Dec. 28, 1998).

As an initial matter, Petitioner cannot use the cumulative error doctrine to relitigate
those claims that are waived or previously determined. See Bruce Turner v. State, No.
W2014-01426-CCA-R3-PC, 2015 WL 13306156, at *9 (Tenn. Crim. App., at Jackson,
Oct. 22, 2015); Brian Le Hurst v. State, No. M2014-02083-CCA-R3-PC, 2015 WL
9581575, at *26 (Tenn. Crim. App., at Nashville, Dec. 30, 2015). Additionally, none of
Petitioner’s allegations with regard to the guilt phase, even if this court had found that he
established either deficient performance by trial counsel or prosecutorial misconduct, call
into question the reliability of his conviction for first degree felony murder given the
evidence presented at trial. Cf. State v. Sexton, 368 S.W.3d 371, 431 (Tenn. 2012). With
regard to the sentencing phase, we agreed with the post-conviction court that trial counsel
were deficient for failing to investigate and present evidence in support of Petitioner’s
intellectual disability claim, but we concluded that trial counsel were not deficient with
regard to the additional mitigating evidence. “To warrant assessment under the cumulative
error doctrine, there must have been more than one actual error committed in the trial
proceedings.” Hester, 324 S.W.3d at 77. Accordingly, Petitioner is not entitled to relief
under the cumulative error doctrine.

Conclusion

Based on the foregoing, we affirm the judgment of the post-conviction court that
Petitioner is not entitled to post-conviction relief from his felony murder conviction or his
death sentence.

____________________________________
JILL BARTEE AYERS, JUDGE

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