Henley v. State

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
(HEARD AT COLUMBIA)
FILED
FOR PUBLICATION
STEVE HENLEY, ) December 15, 1997
) Filed: December 15, 1997
Appellee, ) Cecil W. Crowson
) Appellate Court Clerk
v. ) JACKSON CRIMINAL
)
STATE OF TENNESSEE, ) Hon. J.O. BOND, Judge
)
Appellant. )
)
) No. 01S01-9703-CC-00056

For the Appellant: For the Appellee:

John Knox Walkup Jack E. Seaman
Attorney General & Reporter Lyell, Seaman & Shelton
Nashville, Tennessee
Michael E. Moore
Solicitor General Paul S. Davidson
Stokes & Bartholomew
John H. Baker, III
Assistant Attorney General
Nashville, Tennessee

Tom P. Thompson
District Attorney General

John Wooten
Assistant District Attorney General
Hartsville, Tennessee

OPINION

COURT OF CRIMINAL APPEALS
REVERSED; TRIAL COURT JUDGMENT
REINSTATED; PETITION DENIED. DROWOTA, J.
 In this post conviction proceeding, the trial court denied relief on all grounds

alleged, and specifically found that the petitioner, Steve Henley, had been afforded

his constitutional right to effective assistance of counsel at the sentencing phase of

his capital trial. The Court of Criminal Appeals found that the evidence

preponderated against the trial court’s denial of relief with respect to the sentencing

phase, and concluded that Henley had been denied his right to effective assistance

of counsel because trial counsel had failed to adequately investigate and prepare

witnesses to testify on Henley’s behalf and had failed to adequately investigate

Henley’s mental condition and request that he undergo a mental evaluation.

Accordingly, the Court of Criminal Appeals reversed Henley’s sentence of death and

ordered a new sentencing hearing. Thereafter, we granted the State permission to

appeal to determine whether the intermediate court erred in concluding that the

evidence preponderates against the trial court’s finding that Henley was afforded his

right to effective assistance of counsel at sentencing. After carefully reviewing the

record, we have determined that the evidence supports the trial court’s finding.

Accordingly the judgment of the Court of Criminal Appeals ordering a new sentencing

hearing is reversed, and the trial court’s decision denying the petition for post

conviction relief on all grounds alleged is reinstated.1

BACKGROUND

In 1986, the petitioner was convicted of aggravated arson and two counts of

first degree premeditated murder for the killings of Fred and Edna Stafford, an elderly

couple who were close neighbors to Henley’s grandmother. According to the

1
Oral argume nts were heard in this case on O ctober 8, 1997 in Columb ia, Maury County, as
part of this C ourt’s S.C .A.L.E.S. ( Supreme Court Advancing Lega l Education for Students ) project.

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testimony of his co-defendant, Terry Flatt, the petitioner ordered both victims inside

their home, shot them multiple times, and set their house on fire. The proof

introduced at trial to establish the defendant’s guilt was summarized by this Court on

direct appeal as follows:

[T]he evidence showed that Fred and Edna Stafford lived on
Pine Lick Creek Road in Jackson County, just a short distance from the
farm, owned by Henley’s family, where his grandmother lived. On the
day of the Staffords’ death Henley had visited his grandmother and
obtained some mechanical parts for some work he was doing. Flatt
was with him. Earlier in the day they had been driving about, tending
to business affairs of Henley’s. During that time they had consumed
some beer and also had taken some drugs, referred to in the record as
Dilaudids. According to Flatt, as they passed the Staffords’ residence
Henley commented, ‘there was some people that lived on that road that
owed his grandmother or grandfather some money, and they done him
wrong, his grandparents wrong years before, and he was going to stop
and see about collecting some money off them.’ Henley let Flatt out of
the truck just before he reached his grandmother’s house. When he
returned five or ten minutes later he had a .22 rifle with him. They
stopped fifty or seventy-five yards up the road where Henley loaded
some more shells into the rifle. He also filled a plastic jug with gasoline
from a five-gallon can he had in the back of the truck. They proceeded
on toward the Stafford residence. When they reached there Mr. and
Mrs. Stafford were standing on the left-hand side of the road looking at
a small bridge where some construction work had recently been done,
Henley stopped the truck, jumped out and told them, ‘I want your
money, if you don’t give it to me this man in the truck here, he’s going
to kill me.’ He then directed them to go to the house. Mr. Stafford said,
‘Steve, if you want money or something, I got $80, maybe $100, you
can have it.’ He forced them on to the house at gunpoint and told Flatt
to bring the .22 rifle as he followed behind them. When they got within
20 or 30 feet of the house he told Flatt to give him the rifle and go back
to the truck and get the plastic jug of gasoline. Flatt did as directed. As
he reached the porch he saw Henley begin to shoot. He first shot Mr.
Stafford then turned and shot Mrs. Stafford a time or two. While she
was laying on the floor moaning and groaning he threw the rifle to Flatt,
took out his pistol and shot her again with the pistol. He told Flatt to
pour out some of the gas. Flat endeavored to do as he was told and
poured out a small amount. When he could not finish Henley took the
container of gas from him and finished pouring it out. He then directed
Flatt to light it. When Flatt said he could not he struck the match and
as the flames went up they ran to the truck.

The house burned to the ground. The bodies of the Staffords
were found in the ashes. All that remained of Mr. Stafford’s body was

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 part of the right leg and the trunk area. The body of Mrs. Stafford was
similarly burned. It was determined that Mr. Stafford died from a
gunshot wound to the chest with the bullet passing through his heart.
Mrs. Stafford’s death was caused by burns and inhalation of noxious
gases from the fire. It was the opinion of the medical examiner that
Mrs. Stafford lived a minute or longer after the fire began.

State v. Henley, 774 S.W.2d 908, 912 (Tenn. 1989).

At trial Henley maintained his innocence and attempted to discredit the

prosecution’s evidence, particularly the testimony of co-defendant Flatt which was

crucial to the State’s case. The defense showed that by testifying, Flatt had gained

the benefit of a plea bargain agreement, pursuant to which, Flatt had been allowed

to plead guilty to two counts of second degree murder, two counts of armed robbery

and one count of aggravated arson. Flatt was sentenced as a Range I offender to

twenty-five years for each of the murders, ten years for each of the robberies, and ten

years for the arson, all to run concurrently, for an effective sentence of twenty-five

years.

Testifying in his own defense, Henley adamantly denied all knowledge of and

involvement in the murders and arson. Henley acknowledged that he had spent the

day in the company of Flatt, and he admitted that he had drank some beer.

However, Henley flatly denied that he was intoxicated or under the influence of drugs.

Henley said he did not like to drink beer and had never abused drugs. Henley

testified that it was Flatt who was intoxicated and under the influence of the drug

referred to in the record as Dilaudid. Henley said that he dropped Flatt off before

arriving at his grandmother’s house because of Flatt’s intoxicated condition. Flatt left

the truck with Henley’s .22 gauge rifle planning to hunt rabbits. Henley said he

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proceeded to his grandmother’s house and remained there for about forty-five

minutes to an hour. Henley picked Flatt up when he left, but had no knowledge of

Flatt’s activities during the intervening time frame. Henley claimed that he did not see

the fire at the Staffords’ home and was not aware of their deaths until the next day.

On cross-examination, Henley admitted that he previously had pleaded guilty to

transporting stolen goods in interstate commerce. In addition, Henley admitted that

he owed a substantial farming debt near the time of the killings and had filed for

bankruptcy.

The defense called other witnesses during the guilt phase to corroborate

Henley’s testimony about his activities on the day of the murders and to provide

background information about Henley’s life. Henley’s grandmother testified that

around the time of the murders, Henley arrived at her home alone and stayed there

for forty to forty-five minutes. On cross-examination, she admitted that she had seen

Henley with the .22 rifle on Saturday before the Staffords were murdered on

Wednesday.

After the jury convicted Henley of two counts of premeditated murder and

arson, the case proceeded to sentencing. The State relied upon the proof it had

presented at the guilt phase.

The defense offered further proof, first calling Henley’s mother, who, in the

presence of the jury said, “I want to talk to you Mr. Reneau.” Defense counsel, J.H.

Reneau, III, requested and was granted a short recess. He exited the courtroom with

Dorothy Henley. When the sentencing hearing resumed, she did not take the stand,

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and the jury was not given an explanation for her failure to testify. Instead, the

defense recalled Bertha Henley, the petitioner’s seventy-five-year-old grandmother

who testified that Henley, along with his parents, had lived in her household from the

time he was born until he was two years old. In addition, Henley had spent every

weekend and summer vacation thereafter in her home until he completed high

school. She said that Henley had a very close relationship with his grandfather, and

that, from a very young age, Henley had helped his grandfather with farm work. She

described Henley as a “good child” who “minded” her well and who “always loved”

her. Henley married when he was eighteen-years-old, and had two children, Gregg

and Leanne. Even after his marriage, however, Henley’s close relationship with his

grandparents continued. Though he and his family moved from Tennessee to

Maryland, Henley returned to Tennessee when his grandfather was diagnosed with

cancer in May of 1976 and lived with his family in a trailer across from his

grandparents’ home so that he could help his grandfather with the farm work. After

his grandfather died of cancer in July of 1976, Henley began working on the family

farm full time and continued in that occupation from 1977 to 1983. During that time,

Henley visited his grandmother almost everyday, and continued to check on her

regularly thereafter. She could not drive because she had suffered a heart attack,

so Henley would drive her to the doctor and into town once a week to pay bills and

buy groceries. Henley’s grandmother described him as a “tender hearted” person

who would cry when his feelings were hurt. She said he had always been kind and

good to her, ever willing to provide her with needed assistance. She told the jury that

she loved Henley, the eldest of her four grandchildren, and did not want to see

anything happen to him. The State did not cross examine Bertha Henley at the

sentencing hearing.

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 Henley also testified about his relationship with his grandparents and how he

had played and worked on the farm from a very young age. When asked why he

stayed with his grandparents, rather than his parents, on the weekends and during

his summer vacations, Henley replied, “I’d just love them more than anything in the

world. There’s no way to explain my grandaddy, I don’t guess. He was just the best

person in the world.” Henley recounted how he had given up his job in Maryland as

a certified marine mechanic to return to Tennessee and assist his grandfather when

he was diagnosed with cancer. Henley said he worked full time on the family farm

from 1977 to 1983, and was successful for a time. His farming difficulties began with

a drought in 1980 or 1981. To compensate for losses during the drought, he planted

nearly seven hundred acres of wheat. Because of severe flooding, Henley was

unable to harvest the wheat and lost his entire crop and ultimately was forced to file

for bankruptcy protection. When trial counsel gave Henley the opportunity to make

a final comment to the jury, Henley told the jurors, “I think each and everyone of you

has made a mistake, and it’s a mistake you all will have to live with. And one day and

time when we’re all, wherever we go, we’ll all have to face that.” The State did not

cross examine Henley at the sentencing hearing.

After hearing the proof, the jury sentenced Henley to death for both murders,

finding that each murder was “especially heinous, atrocious, or cruel in that it involved

torture or depravity of mind.” Tenn. Code Ann. § 39-2-203(I)(5) (1982). This Court

affirmed the convictions and sentences on direct appeal. State v. Henley, 774

S.W.2d 908 (Tenn. 1989).

Thereafter, Henley instituted this action seeking post conviction relief. Among

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other things, Henley alleged that he was denied his constitutional right to effective

assistance of counsel at the sentencing phase of his capital trial. Henley alleged that

trial counsel’s failure to investigate and prepare family members to testify on his

behalf deprived the jury of hearing proof of his good character and non-violent nature.

In addition, Henley alleged that trial counsel’s failure to completely investigate his

mental condition and request a mental evaluation constituted ineffective assistance

of counsel. At the time of the evidentiary hearing on the petition, both the original trial

judge, Robert H. Bradshaw, and the sole trial defense attorney, J.H. Reneau, III, were

deceased.

In support of his first claim, Henley offered the testimony of his mother, his two

sisters, his two children, and his second wife. Dorothy Henley, the petitioner’s

mother, said that trial counsel had not contacted her prior to trial and that the only

time he had spoken to her about testifying was during the recess she requested after

he had called her to the witness stand at the sentencing hearing in the presence of

the jury. Mrs. Henley admitted that she told trial counsel during the recess that she

did not want to testify, but said she had refused to testify only because she had not

understood the purpose of her testimony nor what she would have been expected to

say on the witness stand. Had trial counsel explained to her the purpose of her

testimony before the sentencing hearing, Mrs. Henley claimed she would have

testified on behalf of her son.

Had she been properly prepared, Mrs. Henley said that she would have given

testimony about her son’s life, her love for him, and her belief that he would not have

committed the crimes “if he was at his right mind.” She would have told the jury that

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Henley was a good son who had a close relationship with his grandparents and who

had suffered financial losses because of the failure of his farming operation. On

cross-examination, Mrs. Henley acknowledged that she had lived in Davidson county

at the time of the murders and that she had little contact with her son during the year

preceding the homicides. She conceded that she had no more information about

Henley’s background than what his grandmother had testified about at the sentencing

hearing.

The petitioner’s children, Greg and Leanne Henley, testified that they were not

told about the petitioner’s trial until it had concluded. These witnesses said that, had

they been contacted by trial counsel, they would have given evidence that Henley

was a good father. Greg was twelve or thirteen years old at the time of the trial and

Leanne was ten or eleven years old. At the time of Henley’s trial, both children lived

with their mother, Henley’s first wife. In an affidavit offered by the petitioner at the

evidentiary hearing, their mother stated that she would have allowed the children to

testify if she had been contacted by trial counsel.

Stefanie Robinson, the petitioner’s younger sister testified that she had not

been contacted by trial counsel, but said, had she been afforded the opportunity, she

would have told the sentencing jury that Henley was a good brother and that he had

been very upset when he could not pay the money he had borrowed against the

family farm. According to Robinson, Henley was not a violent person. On cross-

examination, Robinson admitted that she had seen the petitioner drink beer and

smoke marijuana.

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 Patricia Woodard, the petitioner’s older sister, said that she would have been

willing to testify on Henley’s behalf had she been contacted by trial counsel.

Woodard would have told the jury that the petitioner had taught her to ride a bicycle

when they were young, and that she had never seen the petitioner become violent.

On cross-examination, Woodard admitted that she had lived in Carthage, Tennessee,

for five years prior to the murders and had not spent a great deal of time with the

petitioner in the years preceding his arrest and trial.

Cynthia Brown, the petitioner’s second wife testified that, had she been

contacted by trial counsel, she would have testified in Henley’s behalf and told the

jury that she had never seen Henley exhibit violent behavior and that he had been

very kind to her son by a previous marriage and had intended to adopt the boy. On

cross-examination, Brown admitted that Henley drank alcohol and used marijuana

during their marriage.

With respect to the petitioner’s second claim that trial counsel should have

further investigated his mental condition, Henley offered the testimony of attorney

Robert Massey who said that trial counsel should have engaged an independent

psychologist to assist in the document gathering process and to do an examination

of those documents to determine whether or not there would be any mitigation

evidence that might be presented from those documents to the jury at the penalty

phase. Mr. Massey had tried one death penalty case at the time of offering this

testimony and had settled six others. He had never tried a case in Jackson county,

nor had he been acquainted with the petitioner’s original trial counsel.

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 The petitioner also offered the testimony of Dr. William D. Kenner, a

psychiatrist who had interviewed Henley once for two hours in August of 1992,

reviewed the results of tests administered by a licensed clinical psychologist,

reviewed the interviews of family members conducted by post conviction counsel, and

reviewed the trial testimony of Henley and co-defendant Flatt. Dr. Kenner had not

spoken directly with Henley’s family, nor reviewed the entire trial transcript, nor

asked Henley to recount what trial counsel had talked about with him. Dr. Kenner did

not question Henley’s competency to stand trial, but said that Henley had been

depressed at the time of the homicides because of his farming failures and may have

been “self-medicating” by using alcohol and drugs. On IQ tests given, Dr. Kenner

said that Henley had scored in the average range with a performance score of 109,

a verbal score of 94, and a full scale score of 99. According to Dr. Kenner, such a

divergence between the performance score and the verbal score is often indicative

of a learning disability. According to Dr. Kenner, a learning disability could have

caused Henley to have difficulty managing his finances and could have been the

actual cause of Henley’s farming failures. Dr. Kenner also said that because of

Henley’s close relationship with his grandfather, losing the family farm was the

equivalent to Henley of his grandfather dying a second time.

Finally, Henley testified at the post conviction hearing. On direct examination,

Henley denied having any meaningful consultation with Reneau. Henley said that

Reneau never asked him for a history of his life or for any personal records such as

school or medical records. Henley also said that Reneau had not spoken with any

of his family members about testifying at the sentencing hearing. The petitioner

admitted that he had never asked his family members to testify in his behalf. Finally,

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Henley continued to maintain that he was innocent of the crimes for which he had

been convicted and sentenced to death.

Upon hearing the proof, the trial judge denied the petition for post conviction

relief on all grounds alleged. Though the trial court made no explicit finding with

respect to the claim that trial counsel was ineffective because he failed to investigate

Henley’s mental condition and request an evaluation, with respect to Henley’s claim

that trial counsel should have prepared more witnesses for the sentencing phase, the

trial court stated:

Heard a lot of witnesses about the sentencing phase. If there’s
any part of it that really -- kind of bothers me a little bit, it‘s the
sentencing phase, and I’ll have to state that. I would have like to have
had another witness maybe to have been put on. I would like for the
mother to have testified when she refused. Now whether he had talked
to her two days ahead of time or that day it really doesn’t make much
difference. If they went in the back room and he talked to her and she
still didn’t want to testify, maybe she had a reason. Maybe she had a
reason then that she doesn’t have now, I don’t know. I do know this,
the attorney asked her. So he come back and got the grandmother
and she testified, and I thought did a beautiful job as far as words, the
way they read. She answered the questions, she took him through his
life, she told it. And the jury had basically everything that these
witnesses the last two days have talked about in that record before
them. They didn’t have the numbers of people saying this, but they all
knew about his family. They all knew about his grandmother, his
granddaddy, they knew all about these things, it was all there. It wasn’t
repeated over and over by several people, but they did have that in the
case when they looked at it. But again, I would have like to have seen
another witness or two, but that’s trial strategy. He may have thought
that’s enough. She may have done such a good job that he thought
this is the best I’m going to get. That was the choice to make.

The petitioner appealed and the Court of Criminal Appeals held that the

evidence preponderated against the trial court’s finding that Henley had been

afforded his right to effective assistance of counsel at the sentencing phase of the

trial. Specifically, the Court of Criminal Appeals found that counsel’s failure to

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adequately investigate and prepare witnesses to testify on Henley’s behalf and to

adequately investigate Henley’s mental condition resulted in a denial of Henley’s right

to effective assistance of counsel at sentencing. Accordingly, the Court of Criminal

Appeal’s reversed Henley’s death sentence and remanded for a new sentencing

hearing.

Thereafter, we granted the State’s application for permission to appeal to

determine whether the Court of Criminal Appeals erred in concluding that the

evidence preponderates against the trial court’s finding that Henley was afforded his

constitutional right to effective assistance of counsel at the sentencing hearing. For

the reasons that follow, we reverse the judgment of the Court of Criminal Appeals

and reinstate the judgment of the trial court denying post conviction relief.

STANDARD OF APPELLATE REVIEW

In resolving the issues in this appeal, we are guided by certain well-settled

rules. The burden was on the petitioner at the evidentiary hearing to prove his case

by a preponderance of the evidence. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.

1996); Cooper v. State, 847 S.W.2d 521, 527 (Tenn. Crim. App. 1992). The findings

of fact of the trial judge on a petition for post conviction relief are afforded the weight

of a jury verdict and are conclusive on appeal unless the evidence in the record

preponderates against those findings. Tidwell, 922 S.W.2d at 500; Cooper v. State,

849 S.W.2d 744, 746 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn.

1990). In evaluating whether the evidence preponderates against the trial court’s

findings, we are guided by longstanding rules of appellate procedure. Appellate

courts in this State do not reweigh or reevaluate the evidence. We can not substitute

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our inferences for those drawn by the trial judge. Moreover, questions concerning the

credibility of the witnesses, the weight and value to be given their testimony, and the

factual issues raised by the evidence are to be resolved by the trial judge. Finally,

the party seeking to overturn the findings of the trial judge bears the burden on

appeal of demonstrating why the evidence contained in the record preponderates

against the findings of the trial judge. Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d

768, 771 (1966); Cooper, 847 S.W.2d at 527; Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990). It is with these principles in mind that we evaluate the

findings of the trial court and the Court of Criminal Appeals with respect to the

petitioner’s claim of ineffective assistance of counsel at sentencing.

INEFFECTIVE ASSISTANCE OF COUNSEL

A. Legal Standards

Article I, Section 9 of the Tennessee Constitution provides “that in all criminal

prosecutions, the accused hath the right to be heard by himself and his counsel... .”

Similarly, the Sixth Amendment2 to the Constitution of the United States guarantees

that in all criminal prosecutions, the accused shall enjoy the right . . . to have the

assistance of counsel for his defense.” These constitutional provisions afford to the

accused in a criminal prosecution the right to effective assistance of counsel. Baxter

v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) and Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a denial of the right, a

petitioner bears the burden of proving both that counsel’s performance was deficient

2
The S ixth Am endm ent is app licable to the s tates throu gh the F ourteen th Am endm ent. See
Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 92 3 (1965).

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and that the deficiency prejudiced the defense. Goad v. State, 938 S.W.2d 363, 369

(Tenn. 1996); Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

With respect to the first prong of the claim, we recognized early on that

counsel’s performance is effective if the advice given or the services rendered are

within the range of competence demanded of attorneys in criminal cases. Baxter,

523 S.W.2d at 936; see also, Goad, 938 S.W.2d at 369. To prove a deficiency,

therefore, the petitioner must show that counsel’s acts or omissions were so serious

as to fall below an objective standard of reasonableness under prevailing

professional norms. Goad, 938 S.W.2d at 369; Strickland, 466 U.S. at 688, 104 S.Ct.

at 2065. When assessing an attorney’s performance it is not our function to “second

guess” tactical and strategic choices pertaining to defense matters or to measure a

defense attorney’s representation by “20-20 hindsight.” Hellard v. State, 629 S.W.2d

4, 9 (Tenn. 1982). As the United States Supreme Court has recognized,

Judicial scrutiny of counsel’s performance must be highly deferential.
It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy
for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel
was unreasonable.

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see also Burger v. Kemp, 483 U.S.

776, 789, 107 S.Ct. 3114, 3123, 97 L.Ed.2d 638 (1987). When reviewing the facts

and circumstances of a case, therefore, a “fair assessment. . . requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065;

see also Goad, 938 S.W.2d at 369.

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 To establish the second prong of the claim -- that counsel’s deficiency resulted

in prejudice to the defense -- 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, 104 S.Ct. at

2068; see also Goad, 938 S.W.2d at 370. When challenging a death sentence, a

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.” Strickland, 466 U.S. at 695, 104

S.Ct. at 2069.

In determining whether a petitioner has discharged the burden of establishing

prejudice, a court

must consider the totality of the evidence before the judge or jury.
Some of the factual findings will have been unaffected by the errors,
and factual findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect on the
inferences to be drawn from the evidence, altering the entire
evidentiary picture, and some will have had an isolated trivial effect. .
..

Strickland, 466 U.S. at 696-97, 104 S.Ct. at 2069; see also Goad, 938 S.W.2d 371.

Where, as here, the alleged deficiency involves counsel’s failure to present mitigating

evidence in the penalty phase of a capital trial, in assessing prejudice under

Strickland, several factors are significant, including whether substantially similar

mitigating evidence was presented to the jury in either the guilt or penalty phase of

the proceedings; the nature and extent of the mitigating evidence that was available

but not presented; and 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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Goad, 938 S.W.2d at 371 (citing cases).

Because a petitioner must establish both prongs of the test 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. 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.

Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; Goad, 938 S.W.2d at 370.

Applying the principles outlined above, we must now determine whether the

evidence in the record preponderates against the trial court’s finding that the

petitioner failed to establish that he was denied his constitutional right to effective

assistance of counsel.

B. Failure to Prepare/Call Other Witnesses

Though the trial court did not use the term, it is evident from its finding that the

trial court concluded that the petitioner had failed to establish prejudice resulting from

counsel’s alleged failure to prepare and call witnesses. In denying post conviction

relief, the trial judge observed that the sentencing jury “had basically everything that

these witnesses the last two days have talked about in that record before them.”

In reversing the decision of the trial court, the Court of Criminal Appeals

stated, “[w]e do not think it is assuming too much to conclude that a jury is going to

be prejudiced against a defendant upon that person’s own mother refusing to testify

on his or her behalf.” As evidence of prejudice, the intermediate court quoted from

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the affidavit of a juror which was submitted as part of the petitioner’s offer of proof at

the post conviction hearing in which the juror said, “If a man’s own mother won’t

testify on his behalf then we know what we’ve got to do.” In addition, the intermediate

court stated that, “[e]ven without this offer of proof, we hold that the dearth of

favorable testimony offered at the sentencing hearing, when significant amounts of

favorable testimony were available establishes a reasonable probability that, but for

Mr. Reneau’s deficient performance with respect to the sentencing hearing of

Henley’s trial, the result of the proceeding would have been different.”

Initially we note that the juror’s affidavit statement regarding the effect on the

sentencing jury of Dorothy Henley’s failure to testify should not have been considered

by the intermediate appellate court as proof of prejudice. Indeed, the affidavit should

not have been considered for any purpose. Rule 606(b) of the Tennessee Rules of

Evidence, expressly prohibits a juror from testifying or offering an affidavit “as to any

matter or statement occurring during the course of the jury’s deliberations or to the

effect of anything upon any juror’s mind or emotion as influencing that juror to assent

to or dissent from the verdict . . .” (Emphasis added.) In this case, the juror’s affidavit

related to the precise subject matter about which a juror is strictly forbidden from

testifying by Rule 606(b) -- the effect of the mother’s failure to testify on the jury

verdict. The affidavit violates the express terms of Rule 606(b) and should not have

been considered by the intermediate court as evidence of prejudice. See State v.

Stephenson, 878 S.W.2d 530, 554 (Tenn. 1994)

Moreover, Henley’s mother did not refuse to testify in the presence of the jury.

Instead, she asked to first speak with trial counsel. Although the record reflects that

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she thereafter did not testify, at no time did she openly refuse to testify on Henley’s

behalf in the presence of the jury as the Court of Criminal Appeals decision indicates.

In addition, the fact that the jury was not provided with an explanation as to why

Dorothy Henley did not testify does not justify a finding of prejudice. The jury was

instructed to base its sentencing decision on the evidence presented at trial, not upon

speculation about why a particular witness did not testify. Jurors are presumed to

follow the instructions given them in arriving at a verdict. State v. Laney, 654 S.W.2d

383, 389 (Tenn. 1983); State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App.

1985). Therefore, it is not appropriate to “assume” the defense was prejudiced

because Henley’s mother was not called as a witness in his behalf at the sentencing

hearing. The fact that Dorothy Henley asked to speak with counsel when called as

a witness and thereafter did not testify does not constitute a reasonable probability

sufficient to undermine confidence in the outcome of the proceeding

Finally, the record does not support the Court of Criminal Appeals’ statement

that prejudice was established because there was a “dearth of favorable testimony

offered at the sentencing hearing, when significant amounts of favorable testimony

were available.” As was previously stated, when assessing the existence of prejudice

in the face of an alleged deficiency involving counsel’s failure to present mitigating

evidence in the penalty phase of a capital trial, we consider whether substantially

similar mitigating evidence was presented to the jury in either the guilt or penalty

phase of the proceedings; the nature and extent of the mitigating evidence that was

available but not presented; and whether there was such strong evidence of

aggravating factors that the mitigating evidence would not have affected the jury’s

determination. Goad, 938 S.W.2d at 371 (citing cases).

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 In this case, the record fully supports the trial court’s statement that, through

the testimony of Bertha Henley and the petitioner, the original sentencing jury had

before it basically the same favorable mitigation evidence that was offered by the

many witnesses at the evidentiary hearing on the post conviction petition. As

previously summarized herein, the jury heard extensive testimony about Henley’s

relationship with his grandparents, including his own testimony that he loved them

more than anyone else in the world. It is difficult to imagine a more favorable and

detailed description of the petitioner’s character than that given by Bertha Henley.

It is clear from the proof at trial and the evidentiary hearing in this case that the

petitioner had a closer relationship with his grandmother, Bertha Henley, than with

any other living family member. Indeed, the petitioner’s own mother acknowledged

that she could have offered no further information about Henley and his life than that

given by Bertha Henley at the sentencing hearing.

Dorothy Henley admitted that in the years preceding the murders she had

resided in Davidson County and had little contact with her son. On cross-

examination, Dorothy Henley also admitted that she visited her son only a few times

in jail before his trial. Overall, Dorothy Henley used very general terms to describe

her relationship with her son. Similarly, Henley’s older sister gave only general

information about the petitioner, and conceded that she had little contact with her

brother during the five years preceding the homicides.

While Henley’s younger sister and second wife had closer associations with

him near the time of the murders, both also had personal knowledge about his use

of drugs, specifically marijuana, which was brought out during cross-examination at

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the evidentiary hearing. Had these two witnesses testified at the sentencing hearing,

that same information, no doubt, would have been brought to light. In view of

Henley’s testimony throughout the trial that he had never abused drugs, the

testimony of two family members to the contrary would have been extremely

detrimental to the defense.

The only other testimony offered at the evidentiary hearing was that of

Henley’s children who claimed they would have testified had trial counsel contacted

their mother with whom they were residing. However the children, eleven and

thirteen years old at the time of the trial, admittedly were not informed about the trial

until its conclusion.

Therefore, the witnesses which were available but not called as witnesses at

the original trial, would have offered general, vague testimony about the petitioner’s

character, and the evidence regarding the petitioner’s use of drugs and alcohol was

unfavorable. Moreover, none of these witnesses had a particularly close relationship

with the petitioner near the time of the killings. In contrast, the mitigating proof

actually presented was detailed, poignant, and favorable and was provided by the

petitioner and his grandmother, with whom he had a close relationship. It is

significant that the State did not cross examine either the petitioner or his

grandmother at the sentencing hearing.

Clearly, trial counsel has a duty to investigate and prepare for the penalty

phase of a capital trial since “evidence about the defendant’s background and

character is relevant because of the belief . . . that defendants who commit criminal

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acts that are attributable to a disadvantaged background, or to emotional and mental

problems may be less culpable than defendants who have no such excuse.”

California v. Brown, 479 U.S. 538, 544, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987).

However, in this case, the proof does not preponderate against the trial court’s finding

that the petitioner suffered no prejudice even assuming trial counsel failed to

competently fulfill that duty. Nothing was adduced at the post conviction hearing

which could possibly have added anything favorable to the mitigation proof that was

offered at the original trial by the petitioner and his grandmother. Though the

petitioner offered a large number of witnesses who claimed they would have testified

on his behalf at the sentencing hearing but for counsel’s incompetence, the quality

of their testimony was weakened either by their limited relationship with Henley at the

time of the murders or by their personal knowledge of his drug use at the time of the

murders. As the trial judge implicitly found, the testimony offered at the post

conviction hearing was, at most, cumulative. State v. Melson, 772 S.W.2d 417, 419

(Tenn. 1989). Appellate courts must consider the quality of the proposed testimony

rather than the quantity of witnesses when determining whether prejudice has been

established. Finally, proof of the aggravating circumstance in this case, that the

murders were “especially heinous, atrocious, or cruel in that it involved torture or

depravity of mind,” Tenn. Code Ann. § 39-2-203(I)(5) (1982), was strong. The victims

were forced at gunpoint from the road to their home. The wife watched as her

husband was shot. She was then shot several times, but, according to the testimony

at trial, she remained alive and conscious for a time after the fire had begun, and

actually died of smoke inhalation. In our view, the petitioner has not established the

existence of a “reasonable probability that, absent the errors, the sentencer . . . would

have concluded that the balance of aggravating and mitigating circumstances did not

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warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2069.

C. Failure to Investigate Mental Condition and Request Evaluation

The Court of Criminal Appeals also found that the evidence preponderates

against the trial court’s denial of Henley’s claim that counsel inadequately

investigated the petitioner’s mental condition and failed to request a mental

evaluation.

At the evidentiary hearing, Henley offered the testimony of Dr. Kenner who

said that Henley lost the family farm because he had a learning disability and was a

bad manager and that Henley was depressed about the loss of the family farm and

was “self-medicating” with alcohol and drugs near the time of the homicides. Based

upon Dr. Kenner’s testimony, Henley claimed that had trial counsel properly

investigated his mental condition and requested that he undergo a mental evaluation,

Reneau would have learned of this mitigating proof and presented it at the sentencing

hearing. In reversing the trial court’s denial of relief, the Court of Criminal Appeals

implicitly found that trial counsel had been deficient in failing to investigate and offer

this proof and that the deficiency has resulted in prejudice to Henley. We disagree.

While it is true that often a greater duty of inquiry into a client’s mental health

is imposed for the penalty phase of a capital trial, Goad, 938 S.W.2d at 370, it is also

well-established that

the reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or actions...
And when a defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or even harmful,
counsel’s failure to pursue those investigations may not later be

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 challenged as unreasonable.

Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.

At the trial of this case, the defendant maintained his innocence, flatly denied

that he had been intoxicated on the day of the murders, and also denied ever

abusing drugs. Moreover, Henley said his farming operation had failed because of

unpredictable weather, a drought followed the next year by floods. Clearly then, the

evidence for which trial counsel is now faulted for not discovering and introducing

would have been inconsistent with the defendant’s own testimony and harmful to the

defense theory throughout the trial. When assessing the performance of trial

counsel, courts must eliminate the “distorting effects of hindsight” and evaluate the

challenged conduct from counsel’s perspective at the time, rather than from the

perspective of a mental health expert offering testimony in a post conviction

proceeding. Applying that standard, it is clear that trial counsel’s performance and

investigation of Henley’s mental condition was not deficient. Accordingly, the

evidence does not preponderate against the trial court’s denial of post conviction

relief.

CONCLUSION

After carefully reviewing the record, we have determined that the Court of

Criminal Appeals erred in concluding that the evidence preponderates against the

trial court’s denial of post conviction relief. Accordingly, the judgment of the Court of

Criminal Appeals reversing Henley’s death sentence and ordering a new sentencing

hearing is reversed, and the judgment of the trial court denying the petition for post

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conviction relief is reinstated. The sentence of death shall be carried out as provided

by law on the 27th day of April, 1998, unless stayed by this Court or other appropriate

authority.

____________________________________
FRANK F. DROWOTA, III,
JUSTICE

Concur:
Anderson, C.J.
Holder, J.

Reid, J. and Birch, J. dissent - See Separate Dissenting Opinion.

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