Goad v. State

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

FOR PUBLICATION

WILLIAM W ESLEY GOAD, ) Filed: December 2, 1996
)
Appellant, )
) SUMNER CRIMINAL
)
Vs. )
) HON. FRED A. KELLY, III,
) JUDGE
STATE OF TENNESSEE, )
)
Appellee. ) No. 01-S-01-9509-CR-00169

For Appellant: For Appellee:

Paul J. Morrow, Jr. Charles W. Burson
Nashville, Tennessee Attorney General and Reporter

Louis W. Oliver, III John P. Cauley
Hendersonville, Tennessee Assistant Attorney General
Nashville, Tennessee

FILED Lawrence Ray Whitley
District Attorney General
Gallatin, Tennessee
December 2, 1996

Cecil W. Crowson
Appellate Court Clerk

OPINION

REVERSED AND REMANDED. ANDERSON, J.
 The primary issue in this appeal is whether the petitioner, William Wesley

Goad, was afforded his constitutional right to effective assistance of counsel at

the sentencing phase of his capital trial.

The Tennessee death penalty statute, Tenn. Code Ann. § 39-2-203,

requires at the sentencing phase of a capital trial that the jury weigh statutory

aggravating circumstances against statutory and other mitigating circumstances.

If the mitigating circumstances do not outweigh the aggravating circumstances1,

the jury must return the death penalty.

In this case, the State relied on and proved one aggravating

circumstance, Tenn. Code Ann. § 39-2-203(i)(2)(1982), conviction of one or

more felonies involving violence or the threat of violence. The defense mitigation

theory at sentencing was that Goad's experience in Vietnam had drastically

changed him from a model citizen to a violent, mentally ill criminal. The only

proof, however, that was introduced to support this marked change was that of

Goad's parents and two high school friends. The record establishes that trial

counsel failed to produce an available expert witness to introduce proof that

Goad had been diagnosed with a mental illness -- post-traumatic stress disorder

1
The sta tute has n ow bee n am ended to say:

(g)(1) If the jury unanim ously deter mine s that:

(A) At least one (1) statutory aggravating circumstance or
several statutory aggravating circumstances have been proven
by the state beyond a reasonable doubt; and

(B) Such circumstance or circumstances have been proven by
the state to outweigh any mitigating circumstances beyond a
reason able dou bt;

then the sentence shall be death.

Tenn. Code A nn. § 39-13-204(g)(1) (1996).

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-- arising out of his harrowing Vietnam military service experience and his wife's

infidelity while he served there.

Under these circumstances, the standards for effective assistance of

counsel required in the United States Supreme Court case of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), apply. We

conclude that defense counsel was ineffective in failing to present the available

expert mitigating evidence of mental illness which would have substantially

strengthened the mitigation case of the defense. That ineffectiveness

undermines our confidence in the outcome of the penalty proceeding. As a

result, there is a reasonable probability that the result of the sentencing hearing

would have been different but for counsel's ineffectiveness. We reverse the

Court of Criminal Appeals' judgment denying post-conviction relief, vacate the

petitioner's death sentence, and remand the case to the trial court for a new

sentencing hearing.

BACKGROUND

A. Sentencing Hearing

The petitioner was convicted of first-degree murder in the perpetration of a

robbery and sentenced to death by electrocution. See State v. Goad, 707

S.W.2d 846 (Tenn. 1986). The only aggravating circumstance found by the jury

was that in Tenn. Code Ann. § 39-2-203(i)(2)(1982), “the defendant was

previously convicted of one or more felonies, other than the present charge,

which involved the use or threat of violence to the person.” The proof presented

at the sentencing hearing at trial was summarized by this Court in its opinion on

direct appeal.

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 Appellant was about 35 years of age at the time of
the trial. He had been reared in Maury County,
Tennessee, and had entered military service shortly
after his graduation from high school in Mount
Pleasant. He served for about two years in the armed
services, one portion being in Europe and the other in
Vietnam. After his return from service he had been
married three times. He was shown to have been
subject to drug abuse to some extent, had been
convicted of six major felonies and had been
incarcerated for some time as a result of these
convictions. He had no history of mental illness or of
treatment for drug abuse. He was evaluated prior to
trial at a state mental health facility and found to be
competent to stand trial. No plea of insanity was
interposed, nor was there any specific claim of
diminished mental capacity. At the sentencing
hearing, however, it was contended that his
personality had “changed” since his return from
military service, and apparently his career of crime
and poor citizenship was attributed to his military
experiences.

Goad, 707 S.W.2d at 848.

As the summary reflects, the defense attempted to establish at the

sentencing hearing that Goad had been a model citizen until he served in

Vietnam. Goad’s parents testified that Goad had a “typical” childhood. He made

good grades, attended church, and graduated from high school. Shortly after his

graduation in 1967, Goad enlisted in the U.S. Army and eventually served in

Vietnam. Goad’s parents related the drastic changes they noticed in Goad’s

behavior upon his return home from Vietnam. He was “altogether different,”

acted “nervous,” and appeared to be involved with drugs. Similarly, two of

Goad’s high school friends testified that Goad was a passive, non-violent person

while in high school.

During the sentencing hearing, petitioner’s counsel requested that the

court adjourn early at 5:45 p.m. one day so that Dr. Oakley Ray of the Veterans

Administration Mental Health Section could testify the next morning. Counsel

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said that Dr. Ray had been out of town for two weeks and would be available the

next day. The State requested an offer of proof. In response, defense counsel

stated that Dr. Ray had “spent some time” with the petitioner, was “an expert in

the field of post-traumatic stress syndrome,” and would testify about how Goad’s

experiences in Vietnam had affected his mental health. The trial court denied

the request for an early adjournment, stating that it “wouldn’t allow that testimony

at the sentence hearing.” Id. at 852. The sentencing hearing proceeded, and

the jury returned a verdict of death.

B. Direct Appeal

On direct appeal, Justice Harbison of this Court found fault with counsel’s

failure to present a more detailed offer of proof and with the trial court’s

premature refusal to admit Ray’s testimony in his opinion. This Court, however,

declined to order a new sentencing hearing without further development of the

record. Accordingly, the case was remanded by this Court for a trial court

hearing in which defense counsel were to be given an opportunity to establish

that they had contacted Dr. Ray and arranged for his appearance at the

sentencing hearing. If counsel could not so demonstrate, then the sentence

would not be disturbed; if counsel could establish Dr. Ray’s availability, then his

testimony was to be presented. If Dr. Ray’s testimony “credibly tend[ed] to

establish that [petitioner] suffered from post-traumatic stress syndrome in

February 1983,” then the death sentence was to be vacated and a new

sentencing hearing held. Id. at 854.

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 C. Trial Court Remand Hearing

At the trial court remand hearing, one of the petitioner’s attorneys, John

Pellegrin, submitted affidavits detailing his contacts with Dr. Ray prior to trial and

his effort to obtain Dr. Ray’s testimony for the sentencing hearing. Pellegrin

maintained that it was his understanding that Ray would be available to testify at

the sentencing hearing about Goad’s post-traumatic stress symptoms. Pellegrin

also asserted that he had learned after trial for the first time that Goad had

actually been evaluated by Dr. Sam Pieper, Jr., acting chief of the Veterans

Administration Psychiatric Service, and not Dr. Ray, and that Pieper had

completed an evaluation report on November 22, 1983, several months before

trial.

Neither Pieper nor Ray were subpoenaed by the defense to testify at the

remand hearing, nor was Pieper's report introduced into evidence. Ray,

however, told an investigator for the District Attorney General and one of the

petitioner’s attorneys that he had never been contacted about testifying in

Goad’s case, that he was not an expert in the area of post-traumatic stress

syndrome, and that he had never examined the petitioner. Based on that proof,

the trial court concluded that trial counsel “were not actually prepared to offer the

testimony of Dr. Ray and that Dr. Ray was not prepared to testify that the

defendant suffered from post-traumatic stress syndrome.” This Court affirmed

the trial court’s refusal to grant a new sentencing hearing.

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 D. Post-Conviction Action

Thereafter, Goad filed this post-conviction action in 19872, alleging

numerous grounds for relief. He asserted that he had been denied the effective

assistance of counsel at the sentencing phase of his trial due to counsel’s

failures to introduce mitigation evidence about his post-traumatic stress disorder,

his prior drug abuse and treatment, and his prior head injury. A post-conviction

evidentiary hearing was held in 1993.

Both of Goad’s trial attorneys, John Pellegrin and John W esley Jones,

testified at the post-conviction hearing. Pellegrin said that he had been licensed

to practice law in October of 1980, a little more than three years before his

appointment to this case. Although he had tried “numerous” criminal cases, this

was his first death penalty case. Jones testified that he began to practice law in

1971. He had tried approximately twelve first-degree murder cases, but, like

Pellegrin, this was his first capital case.

Pellegrin testified that he learned of Dr. Ray prior to trial from the Public

Defender’s Office in Davidson County, which was representing Goad on

separate charges. After speaking with Ray, Pellegrin discussed the evaluation

by the Veterans Administration with Goad, and he reviewed materials on post-

traumatic stress syndrome that he had received at a death penalty seminar.

Pellegrin, however, did not subpoena Dr. Ray and did nothing else to assure

Ray’s attendance at trial.

2
There is no explanation in the record for the long delay before the post-conviction
hearing and no a pparen t effort by the trial c ourt, the S tate, or the d efense to exped ite the hear ing.
As a result of similar and other problems, this Court appointed a Post-Conviction Study
Comm ission in 1991 which recommended to the Legislature reforms in the post-conviction
process. As an outgrowth of this report, legislation was adopted which treats the issue of
prom ptne ss in h earin g pos t-con viction petitio ns. In addit ion, s ince 1993 , in ca pital c ase s, this
Court requires monthly progress reports from the trial courts.

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 Shortly before trial, Pellegrin once again called Ray’s office only to

discover that the doctor was out of town for two weeks and would not return until

the time the sentencing hearing began. Again, no subpoena was issued. At the

beginning of the sentencing hearing, Pellegrin spoke with Dr. Ray for a third

time. Ray, however, informed Pellegrin that he was very busy and “couldn’t

make it” to court. When Pellegrin asked if Ray could make an offer of proof

“maybe the next day,” Ray replied that he could not.3 According to Pellegrin, it

was only after trial that he discovered that Dr. Ray was not the person who had

evaluated the petitioner. 4 Likewise, it was after trial that Pellegrin said he

received a copy of a report that had been prepared on November 22, 1983, by

Dr. Pieper. Pellegrin conceded that he never subpoenaed Ray for the

sentencing hearing.

Co-counsel Jones testified that the defense had received a copy of Dr.

Pieper’s evaluation before trial, but said he did not attempt to speak with Dr.

Pieper because Pellegrin was responsible for the sentencing portion of the trial.5

Jones testified that the defense had intended to call Dr. Ray as a witness at the

sentencing hearing to testify about the results of the evaluation, and had planned

to introduce the evaluation as a business record through Dr. Ray’s testimony,

since they believed he was the supervising psychiatrist. Jones conceded that

the defense did not subpoena Ray for the trial. After the trial court summarily

ruled Dr. Ray’s testimony inadmissible, the defense did not attempt to call any

other witness to testify about post-traumatic stress disorder.

3
As n oted , cou nse l had a sse rted d uring the re ma nd he aring that h e belie ved R ay wo uld
be at the sentencing hearing. Although the post-conviction court did not resolve this apparent
conflict in the testimony, it is not material to our disposition of the case.

4
It was also after trial that the petitioner info rme d coun sel that he would rec eive disab ility
compe nsation as a result of the post-traumatic stress disorder.

5
As n oted , Pelle grin te stified that h e did n ot kn ow o f Piep er’s r epo rt until a fter th e trial.
The p ost-con viction cou rt mad e no findin gs with reg ard to the a pparen t conflict in testim ony as to
when counsel learned that Pieper had conducted the evaluation of Goad.

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 In addition, both Pellegrin and Jones admitted that they did not issue a

subpoena for either Ray or Pieper to testify at the hearing on remand. Pellegrin

explained that he did not issue a subpoena on remand because Dr. Ray “simply

did not recall talking” with him, and that he did not have Dr. Pieper subpoenaed

for the remand hearing because he believed “the issue was more narrowly

defined on remand.”

Dr. Sam Pieper’s report detailing his evaluation of Goad, which apparently

was conducted to establish a service-related disability for the Veterans

Administration, was introduced at the post-conviction hearing. It recounted

several traumatic episodes related by the petitioner:

He reports several combat incidents which
were stressful to him. He and his company had to do
"night patrol" about once every three months which
meant going outside their perimeter and standing
night watch every night for a week. They came under
fire several times. He participated in several "fire
fights" during the day when his outfit would be
attacked while stringing telephone lines. Two
incidents stand out. One day an enemy bullet hit his
spike causing him to fall from [a] pole. He refused to
climb again. Instead, a friend climbed the pole [and]
was hit by a bullet. His friend reached out for a wire,
caught a high voltage wire and was burned "in a puff
of smoke." He came off the pole "like a kite flying into
the ground. His fingers were left burned onto the
wire." In another fire fight he and his buddies were
pinned down for 15-20 minutes by enemy fire. He
heard a rifle shot, thought he felt mud being
splattered on his face. When the fighting was over he
discovered his friend had been shot through the head
and it was his buddy’s brains he had on his face.

....

Mr. Goad and his first wife began going
together in the 9th grade in high school and continued
to go together while he was stationed in Germany.
On his leave between posts in Germany and Viet
Nam he returned home and was married. After he
had been in Viet Nam about two or three months he
received a letter from his mother saying that his wife
had "moved out" and was "running around with

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 another man." This made Mr. Goad very angry. He
began to have an affair with a Vietnamese girl. One
night when he was at her home they suddenly got
word that the Viet Cong was coming. He hid in a
small cellar under the kitchen table. The Viet Cong
came in and questioned his girlfriend and her mother.
They laid his girlfriend's mother on the kitchen table
and tortured her, killing her by eviscerating her. They
then lay his girlfriend on the table and eviscerated
her. He was very frightened and felt very helpless.
Although there was an escape route from the cellar
via a tunnel he was afraid to use it.

The report, which Jones described as a “two-edged sword,” also

contained potentially prejudicial information about the petitioner, such as his

pride in using drugs, his frequenting prostitutes, and his violent reaction to his

wife’s infidelity. Nonetheless, it concluded with Dr. Pieper’s impressions:

This veteran does exhibit the symptoms of post-
traumatic stress disorder. While some of the
precipitating stress does appear to be combat related,
by far the most striking and stressful events relate to
his behavior in response to his wife’s reported
infidelity.

He exhibits some characteristics of antisocial
personality disorder, of avoidant personality disorder,
and borderline personality disorder but does not
clearly meet the criteria for any one personality
disorder, so the diagnosis of Mixed Personality
Disorder is made.

He is considered to be competent for VA purposes.

Dr. Robert Begtrup, a psychiatrist, also testified at the post-conviction

hearing. He related his experience and his familiarity with post-traumatic stress

symptoms. Although he never personally evaluated or tested Goad, Begtrup

reviewed Pieper’s report and concluded that it contained “catastrophic events.”

Begtrup said that nothing in the report contradicted a diagnosis of post-traumatic

stress disorder, but that independent verification of the events would be helpful.

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 As noted, Goad also claimed that his counsel were ineffective because

they failed to investigate his drug abuse, his participation in a substance abuse

treatment program while at DeBerry Correctional Institute, and his prior head

injury. Pellegrin and Jones testified that they had not sought to obtain records

about Goad’s prison experience because “it couldn’t have curried much favor

with the jury.” Counsel admitted that they did not request Goad’s medical

records, and that they were unaware of a gunshot wound he had received about

thirteen years before trial. A review of the medical records established that the

shotgun wound to the left side of Goad’s head did not penetrate his skull. The

wound, which was sustained in 1971, required only outpatient treatment.

After considering the evidence, the trial court found that trial counsel’s

performance was neither deficient nor prejudicial and denied Goad’s petition for

post-conviction relief. The Court of Criminal Appeals affirmed. We granted

Goad a limited6 appeal to consider whether the evidence preponderates against

the lower courts’ findings. For the reasons articulated below, we reverse.

6
W e also gran ted th e pet itione r an a ppe al on th e que stion of wh ethe r he w as de nied h is
right to a meaningful appellate review because this Court, in conducting its proportionality review
on direct a ppeal, co nsidere d an agg ravating c ircum stance that was not foun d by the jury.
Because we conclude that the petitioner is entitled to a new sentencing hearing, it is not
necessary that we address this issue.

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 INEFFECTIVE ASSISTANCE OF COUNSEL

We review this claim of ineffective assistance of counsel at a capital

sentencing trial under the familiar standards of 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 ineffective assistance of counsel, the

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

deficient and that the deficiency prejudiced the defense. Strickland, 466 U.S. at

687, 104 S.Ct. at 2064; Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler

v. State 789 S.W.2d 898, 899 (Tenn. 1990).

Under Baxter, counsel is effective if the advice given or the services

rendered are within the range of competence demanded of attorneys in criminal

cases. Id., 523 S.W.2d at 936; see also Campbell v. State, 904 S.W.2d 594,

596 (Tenn. 1995). In this regard, the Court in Baxter said:

[T]he assistance of counsel required under the Sixth
Amendment is counsel reasonably likely to render
and rendering reasonably effective assistance. It is a
violation of this standard for defense counsel to
deprive a criminal defendant of a substantial defense
by his own ineffectiveness or incompetence....
Defense counsel must perform at least as well as a
lawyer with ordinary training and skill in the criminal
law and must conscientiously protect his client’s
interests, undeflected by conflicting considerations....
Defense counsel must investigate all apparently
substantial defenses available to the defendant and
must assert them in a proper and timely manner.

Baxter, 523 S.W.2d at 936 (quoting, Beasley v. United States, 491 F.2d 687 (6th

Cir. 1974)(emphasis added)). 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.

Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; Baxter, 523 S.W.2d at 936.

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 In reviewing counsel’s conduct under the facts and circumstances of a

case, 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 Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel’s conduct will not be measured by

“20-20 hindsight”). The fact that a particular strategy or tactic failed or hurt the

defense, does not, standing alone, establish unreasonable representation.

However, deference to matters of strategy and tactical choices applies only if the

choices are informed ones based upon adequate preparation. Hellard, 629

S.W.2d at 9; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Courts are “particularly cautious in preserving a defendant’s right to

counsel at a capital sentencing hearing.” Deutscher v. Whitley, 884 F.2d 1152,

1160 (9th Cir. 1989); Cooper v. State, 847 S.W.2d at 529. The Eighth and

Fourteenth Amendments to the United States Constitution mandate that a death

sentence be based on a “particularized consideration of relevant aspects of the

character and record of each ... defendant.” Woodson v. North Carolina, 428

U.S. 280, 96 S.Ct. 2978, 2991, 49 L.Ed. 2d 944 (1976). In this respect,

“evidence about the defendant’s background and character is relevant because

of the belief ... that defendants who commit criminal 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, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987). Thus, although 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. State v. Melson, 772

S.W.2d 417, 421 (Tenn. 1989); see Bertolotti v. Dugger, 883 F.2d 1503, 1516

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(11th Cir. 1989)(“greater duty of inquiry into a client’s mental health imposed for

the penalty phase of a trial.”); Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.

1991), cert. denied sub nom., Kubat v. Greer, 493 U.S. 874, 110 S.Ct. 206, 107

L.Ed.2d 159 (1989)(“counsel may not treat the sentencing phase as nothing

more than a mere postscript to the trial.”).

To establish that a deficiency resulted in prejudice, 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. 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.

Because a petitioner must establish both prongs of the test, a failure to

prove either deficiency or prejudice provides a sufficient basis to deny relief on

the ineffective assistance 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.

Applying the foregoing standards, we conclude that the evidence in the

record preponderates against the lower courts’ findings that petitioner was

afforded effective assistance of counsel. The evidence shows that counsel failed

to adequately investigate and explore mitigating evidence relative to the Veteran

Administration's evaluation of Goad and his symptoms of post-traumatic stress

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disorder. Counsel were aware that the evidence existed prior to trial, and they

intended to call Dr. Ray during the sentencing phase. Pellegrin spoke with Ray

before and during the sentencing hearing. Although Pellegrin, the least

experienced of the two, had primary responsibility for the sentencing hearing,

Jones testified at the post-conviction hearing that they planned to admit Pieper's

report at sentencing through Dr. Ray’s testimony as a business record, even

though it was a "two-edged sword." Neither Pellegrin nor Jones, however,

issued a subpoena for Ray. Moreover, counsel’s failure to adequately

investigate and prepare this area of mitigation resulted in the failure to locate or

subpoena Dr. Pieper, the author of the report. Consequently, the jury heard no

expert proof about Goad’s symptoms of post-traumatic stress disorder, and

counsel were not prepared to make an offer of proof when the trial court

summarily and incorrectly ruled the evidence of post-traumatic stress disorder

inadmissible at sentencing.

The errors were compounded when counsel failed to issue subpoenas for

Dr. Pieper and Dr. Ray to testify at the trial court remand hearing ordered by this

Court after the first appeal. Pellegrin said that “by the time we got the remand,

[Dr. Ray] simply said he was not willing to testify and didn’t recall talking to me

and those kinds of things.” As to counsel’s failure to call Dr. Pieper, Pellegrin

said, “I didn’t have Dr. Pieper there. I think at that time I did know Dr. Pieper’s

work with Mr. Goad and did have some of his records. But as I said before, we

didn’t have him there to make an offer of proof because it was my understanding

the issue was more narrowly defined on remand than what we could come up

with.”

Although trial counsel’s admitted and stated theory of defense at the

sentencing hearing was to establish that Goad’s Vietnam experiences had

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drastically changed his character and behavior, they failed to subpoena objective

expert witnesses to testify on the issue, both at trial and at the remand hearing.

Contrary to the State’s assertion, it is clear from counsel’s testimony that their

failure to subpoena those witnesses was not a tactical decision; it was a mistake

- a grievous error. Moreover, counsel’s decision before the remand hearing to

forego issuing a subpoena for either Dr. Ray or Dr. Pieper and presenting their

testimony as an offer of proof cannot be characterized as reasonable or

effective. On the contrary, it is unreasonable and ineffective. At that point in the

proceedings, the defense had everything to gain and nothing to lose by

attempting to present these witnesses. Indeed, the potential benefit was a new

sentencing hearing.

Accordingly, we conclude that counsel’s failure to investigate, explore, and

prepare this mitigating evidence and to subpoena Dr. Ray and Dr. Pieper in an

effort to introduce expert proof of post-traumatic stress disorder was not “the

result of reasonable professional judgment” and “fell outside the wide range of

professionally competent assistance.” Accordingly, petitioner has established

that counsel’s performance, as it related to the presentation of evidence of post-

traumatic stress syndrome, was deficient under the standards of Strickland.

PREJUDICE

Having so concluded, we must next determine whether the petitioner has

proven there is a reasonable probability that, absent the error, the sentencer

would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death. In evaluating 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

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 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 (emphasis added).

Where the alleged prejudice under Strickland involves counsel’s failure to

present mitigating evidence in the penalty phase of a capital trial, several factors

are significant. First, courts have analyzed the nature and extent of the

mitigating evidence that was available but not presented. Deutscher v. Whitley,

946 F.2d 1443 (9th Cir. 1991); Stephens v. Kemp, 846 F.2d 642 (11th Cir. 1988);

Cooper v. State, 847 S.W.2d at 532; Atkins v. State, 911 S.W.2d 334 (Tenn.

Crim. App. 1995). Second, courts have considered whether substantially similar

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

of the proceedings. Atkins v. Singletary, 965 F.2d 952 (11th Cir. 1992); Clozza v.

Murray, 913 F.2d 1092 (4th Cir. 1990); State v. Melson, 772 S.W.2d 417, 421

(Tenn. 1989). Finally, the courts have considered whether there was such

strong evidence of aggravating factors that the mitigating evidence would not

have affected the jury’s determination. Fitzgerald v. Thompson, 943 F.2d 463,

470 (4th Cir. 1991); Elledge v. Dugger, 823 F.2d 1439 (11th Cir. 1987). Applying

these factors to the evidence in this case, we conclude that counsel’s

deficiencies were prejudicial under Strickland.

The defense presented lay testimony that, prior to his tour of duty in

Vietnam in 1969, the petitioner had been an intelligent, normal and well-behaved

young man. In 1970, he returned from Vietnam with an addiction to drugs and a

changed personality, and his troubles with the law began soon afterward. The

testimony of relatives and friends, particularly that of Goad’s parents, supported

-17-
the defense theory that Goad’s experiences in Vietnam “changed” him for the

worse.

The testimony, however, left open the question of exactly what transpired

in Vietnam and how the events affected Goad. The objective, expert proof that

was available to the defense but not produced, potentially addressed these

questions and supplied a psychological cause and effect between Vietnam and

Goad’s later behavior. In Stephens v. Kemp, supra, a federal habeas corpus

petitioner claimed that defense counsel had been ineffective for failing to present

expert testimony relating to his history of mental problems. The only witness in

the penalty phase had been the petitioner’s mother. In concluding that counsel

had been ineffective and that prejudice had been shown, the Court noted:

The resulting prejudice is clear. The only testimony
the jury heard at sentencing concerning appellant’s
mental history and condition, including the bizarre
behavior he occasionally exhibited, was that
presented by his mother. As her testimony makes
clear, many others could have testified concerning his
behavior; the fact that others did not do so
undoubtedly diminished the impact on the jury of the
facts she described.

846 F.2d at 653-54; see also Cooper v. State, 847 S.W.2d at 532 (citing

Stephens). Likewise, but for counsel’s deficiency, Dr. Pieper's and Dr. Ray’s

testimony would have supplied expert psychological proof about Goad’s

diagnosis of post-traumatic stress disorder, which this Court on direct review held

to be relevant mitigation evidence.

It is further apparent that counsel’s errors altered the entire evidentiary

picture and had a pervasive effect on the inferences to be drawn from the

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evidence. See Strickland, 466 U.S. at 696-97, 104 S.Ct. at 2069. Defense

counsel’s summations to the jury were illustrative of their own failures:

There’s no way in the world that we can tell you
exactly what happened over there. We don’t know.
There’s no way we can really find out, but obviously
there was some very profound changes that he went
through, and he’s not been the same since he got out
of the service.

Similarly,

What we’re really saying in this particular case is that
Bill Goad, for whatever reasons, committed a crime
which there’s really no sort of explanation for it in a
way. We do know one thing, that when he came
back from Vietnam, he was a changed person,
whether the drugs changed him, whether the fact that
his wife went off and moved in with another man while
he was over there changed him, whether it was being
away from home and in a foreign country that
changed him. There’s no way to say that.

Likewise, the prosecution’s summation exploited the failure of defense counsel

to introduce the available mitigating evidence:

What has been shown to you, ladies and gentlemen
of the jury, other than the fact that his attitude just
changed over the years? They have not shown you
anything that really happened to him when he was in
Vietnam.

The State reiterated this point in its final closing remarks:

We had testimony nowhere that Mr. Goad did any
fighting or shooting or shot at or lost a buddy or
anything that has been intimated or hinted at; nothing
whatsoever. If there was any of that evidence, that
would have come out because the Judge allowed,
and properly so, very much leeway, great leeway, in
the testimony of both Mr. and Mrs. Goad, Sr. as to
what their son had undergone. If he’d been
undergoing any combat over there, gotten shell
shocked and it had dramatically changed his
personality, don’t you know you would have heard it?
But you didn’t hear that.

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 These arguments underscored the prejudicial impact of counsel’s errors.

In Cooper v. State, supra, the Court of Criminal Appeals addressed a similar

situation in concluding that counsel’s deficiency had been prejudicial: “[T]he state

strongly argued to the jury at the penalty phase that the petitioner had presented

no credible evidence or documentation that he suffered from real emotional

problems. Yet, the record of the post-conviction evidentiary hearing reflects that

substantial evidence corroborating the petitioner’s problems was readily available

to be used.” Id., 847 S.W.2d at 532.

Similarly, the failure to present the available mitigating evidence had a

direct relation to the single aggravating factor found by the jury. The State

presented proof that the petitioner had six prior convictions -- four for robbery

and assault with intent to commit first degree murder, one for simple robbery,

and one for armed robbery. Although this aggravating circumstance is often

“more qualitatively persuasive and objectively reliable” than the other

circumstances provided for in the capital sentencing statute, State v. Howell,

868 S.W.2d 238, 261 (Tenn. 1993), its strength would have been mitigated by

evidence of Goad’s post-traumatic stress syndrome, inasmuch as all the

offenses on which this aggravating circumstance was based had occurred after

Goad’s return from Vietnam. Indeed, even without this mitigating evidence, the

jury reported to the trial court they were deadlocked on the question of

punishment four hours after retiring to deliberate. Accordingly, defense

counsel's errors undermine our confidence in the outcome of the sentencing

hearing and, therefore, there is a reasonable probability that, absent counsel’s

error, the jury would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.

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 The trial court’s erroneous conclusion that the evidence was inadmissible

at the initial sentencing hearing does not alter our findings that counsel were

ineffective and that prejudice resulted. Indeed, in this case it is crystal clear that

counsel’s failure to properly investigate the evidence of post-traumatic stress

disorder affected the result. In light of this Court’s decision on direct review,

Goad would have received a new sentencing hearing without a remand had

counsel included Dr. Pieper’s testimony in the record on appeal as an offer of

proof. Accordingly, but for counsel’s failure to identify and subpoena Dr. Pieper

to testify at the initial sentencing hearing, Goad would have received a new

sentencing hearing in his first appeal.

Finally, there is a “reasonable probability” that Goad would have received

a new sentencing hearing following the remand if counsel had subpoenaed Dr.

Pieper and presented his testimony as an offer of proof. Although the remand

named only Dr. Ray, there is a reasonable probability that Goad would have

received a new sentencing hearing had counsel presented some psychological

expert proof that “credibly tend[ed] to establish that [petitioner] suffered from

post-traumatic stress syndrome in February 1983.”7 Counsel failed to subpoena

either Dr. Ray or Dr. Pieper or to present any evidence on that issue. Neither the

trial court nor this Court was presented with any credible proof on the issue, and

had no reason to believe any such proof existed. Counsel’s deficiencies, at the

very least, deprived Goad of a new sentencing hearing in which he would have

been given the opportunity to present relevant mitigating evidence. Goad has

established that he was not afforded his right to effective assistance of counsel

7
State v. Goad, 707 S.W.2d at 854.

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at the sentencing phase of his trial. Accordingly, Goad’s death sentence must

be vacated and the cause remanded for a new sentencing hearing. 8

CONCLUSION

We have determined that the record preponderates against the lower

courts’ findings that Goad was afforded his constitutional right to effective

assistance of counsel at the sentencing phase of his capital trial. Accordingly,

the judgment of the Court of Appeals affirming the trial court’s denial of post-

conviction relief is reversed. Goad’s sentence of death is vacated and the cause

remanded to the trial court for a new sentencing hearing. Costs of this appeal

are taxed to the State of Tennessee.

_____________________________
RILEY ANDERSON, Justice

CONCUR:

Birch, C.J.
Drowota and Reid, JJ.

White, J., Not Participating

8
Because we have determined that this cause must be remanded for resentencing,
Goad’s assertions that counsel were ineffective for failure to investigate his drug abuse and prior
head inju ry are m oot.

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