David McNish v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 12, 1999
• Docket: 03C01-9712-CR-00550
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE August 12, 1999

Cecil Crowson, Jr. NOVEMB ER SESSION, 1998 Appellate C ourt Clerk

DAVID LEE McNISH, ) C.C.A. NO. 03C01-9712-CR-00550 ) Appe llant, ) ) ) CARTER COUNTY VS. ) ) HON. JOHN K. BYERS, STATE OF TENNESSEE, ) SENIOR JUDGE ) Appellee. ) (Post Con viction—D eath Pena lty)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF CARTER COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

PAUL N. BUCHANAN, JOHN KNOX WALKUP Post-Con viction Defende r Attorney General and Reporter Staff Attorney 500 Deaderick Street MICHAEL E. MOORE Nashville, TN 37243 Solicitor General

MARK SLAGLE PETER M. COUGHLAN 302 Sun set Drive Assistant Attorney General Johnson City, TN 37604 425 Fifth Avenu e North Nashville, TN 37243

DAVID CROCKETT District Attorney General

H. GREELEY WELLS, JR. Assistant District Attorney General P.O. Box 526 Blountville, TN 37617

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE OPINION

The Defendant, David Lee McNish, appeals the decision of the trial court

denying him post-co nviction relief from his sentence of death for the premeditated

first degree m urder of the seve nty-year-o ld victim, Gla dys Sm ith. The fa cts

presented at trial are reproduced below from the decision of the Tennessee

Supreme Court on direct appeal affirming Defendant’s conviction and sentence

in State v. McNish, 727 S.W .2d 490 (Tenn . 1987). F or the rea sons se t forth in

this opinion , we affirm th e trial court’s d enial of po st-convictio n relief.

In this appeal, De fendant argu es eight prima ry issues: (1) the trial court

denied Defendant’s right to a full and fair hearing by improperly conducting the

post-conviction proceedings; (2) the trial court erred by ruling that evidence of

former Deputy Foster’s prior convictions and concealment did not constitute

mate rial, exculpatory information within the knowledge and control of the State;

(3) the trial court erred by precluding the testimony of Juror Archie Parlier at the

post-conviction hearing because the testimony was admissible to show that the

jury at trial was improperly influenced by extraneous information; (4) the trial cou rt

erred by ruling that trial and appellate counsel’s prejudicial, deficient

representation did not constitute a violation of Defendant’s right to effective

assistance of counsel; (5) the trial cou rt erred by ruling that the heinous,

atrocious, or crue l aggra vating fa ctor us ed in th is case is constitutio nal; (6) dea th

by electrocution is cruel and unusual punishment which violates the Eighth

Amendment to the United States Constitution and Article I, Section 16 of the

Tennessee Constitution; (7) the jury instruction at the pen alty phase limited the

-2- jury’s consideration of mitigation, denying Defendant his right to individualized

sentencing as guaranteed by the Sixth, Eighth, and Fourtee nth Am endm ents to

the United States Constitution and Article I, Sections 6, 8, 9, and 16 of the

Tennessee Constitution; and (8) the trial court erred by ruling that several issues

raised in D efenda nt’s post-c onviction p etition were waived.

The recitation of facts contained in the decision of the Tennessee Supreme

Court on De fenda nt’s dire ct app eal is consistent with the facts gleaned from a

thorough review of the record in this case. Therefore, we summarize the court’s

findings here as follows:

Mrs. Smith [the victim] lived alone in an u pstairs apartm ent in the Lynnwood Apartments in Elizabethton, Tennessee. The parents of appellant had an apartment in the same complex of apartment buildings, as did Mrs. Selena Richardson (who was at that time Mrs. Selena Welch), whom appellant had be en dating . [Appellan t] testified that he was a lso a frie nd of the deceased and had been very attentive to her needs, frequently running errands for her and otherwis e assisting her. . . . Since 1974 [Appellant] had used prescription drugs rather heavily because he suffered from headaches that grew out of injuries in an automobile accident during that year. He also testified that he purchased stree t drugs from tim e to tim e. Hav ing little income, he sometimes borrowed a few dollars from friends, including Mrs. Sm ith. At about 8 p.m. on April 5, 1983, Mrs. Smith was b rutally beaten about the head and face with a glass vase, the fragments of which were found in her apartment. . . . The vase itself was shattered by the blows, and the victim’s sk ull was fracture d in several places. Hemorrhaging of the brain resulted which compressed the brain stem and prevente d breath ing. Mrs. S mith died within a short time after the beating, although she was still alive when firs t found afte r it occurred . Appellant had take n a num ber of slee ping tablets and other drugs during the day on April 5 to relieve a heada che, acc ording to his testimony. He had, however, conducted normal activities during that day, having visited Mrs. Welch’s apartment at least twice and kept her infant son for a few hours. At about 6:20 p.m. he borrowed her automobile and left the apartment for the purpose of borrowing some money. He returned about 7 p.m. and spoke with two acquaintances in a parking lot of the ap artment com plex. The three agreed to meet later at the apa rtment o f one of the se me n to watch

-3- television. Appe llant told his friend that he needed to borrow some money to purch ase be er and th at he m ight try to borrow the money from M rs. Smith . Shor tly before 8 p.m. G reg Pe ters, who lived with his w ife and infant child in the apartme nt next to Mrs. Smith, heard loud thumping noises in her apartment. He went outside on the balcony and then heard the sound of glass breaking and moans emanating from her apartm ent. He testified that as he reached for the door, appellant rushed out of the apartment exclaiming that Mrs. Smith had fallen and was hurt. Peters went inside and found Mrs. S mith, s till partially conscious, lying in the kitchen in a pool of blood, with broken glass from a shattered flowe r vase scattered on the floor. Peters ran outside a nd called for help. Mr. Frank Garland, who lived in the apartmen t directly benea th Mrs. Smith, also heard noises from her apartment. He then heard Peters calling for help, and he saw appellant McNish coming down the steps from the upstairs a partme nts. He saw nothing unusual in the appearance of appellant at that time. He testified that appellant stopped and spoke to the son of a Mrs. Irene Nave, who lived in the apa rtment n ext to Garland. He also spoke to Mrs. Nave briefly at the doorway and then went to the parking lot and drove away in Mrs. Welch’s automobile. Other witnesses testified that appellant drove away rapidly. Hearing Peters call again for assistance, Garland went upstairs where he found Mrs. Sm ith unconscious in her kitchen. He attempted to call for help and had his wife su mm on the p olice. . . . Appellant drove Mrs. Welch’s automobile some mile and one-h alf to two miles to the reside nce o f his form er wife, M rs. Jan ie Bradley. He had a mishap en route, near a cemetery, and damaged the car slightly. He also claimed that he received some minor injuries in this accid ent. W hen he reache d the residence of Mrs. Bradley, she te stified that his speech was slurred and that he appeared to som e extent to be under the influence of a drug or narcotic. He told her that he had taken a number of pills, that he had wrecked Mrs. Welch’s car, and that he had been in a fight with someone, whom he wo uld not identify. He sa id that h e had been hit with a “tool.” His nose was cut and bruised and there was a cut inside his mo uth. T here w as so me b lood o n his tro users and o n his hands. Appellant requested a bottle of beer, which Mrs. Bradley did not have. S he ga ve him som e Tyle nol for relief of his headache. He washed his hands and face and lay down briefly. He told Mrs. Bradley that he needed to “get out of there” and asked her to take him to a Men tal Health Cente r in Johns on City, where he had previo usly received treatment. At her request he drove Mrs. W elch’s autom obile to a nea rby sch ool, parkin g it in the rear of the kitchen. Mrs. Bradley then drove him in her a utom obile to his parents’ apartment where she obtained for him some fresh trousers. Appellant lay in the back seat of her automobile during this time. She then drove to a nearby market to purchase some bread for his mothe r, while he c hange d trouse rs in the ba ck seat o f the car.

-4- As they approached the marke t, an Elizabethton d etective observed the automobile which was similar to that of Mrs. Welch. He had been advised of the beating of Mrs. Smith and of appe llant’s leaving. He apprehended appellant as he sat in the back seat of Mrs. Bradley’s automobile at the market. He also retrieved appellan t’s bloods tained trou sers from the autom obile. At no time d uring this inte rval did app ellant state to Mrs. Bradley, to his pa rents, to Mrs. W elch or to the police officer that Mrs. Smith had been injured or killed, that he had observed her, or that he had any information whatever concerning her. This was emphasized later by the State, after app ellant profe ssed to remember the events of the evening and accused Mrs. Welch and Mr. Pete rs of cons piring to m urder M rs. Smith . Appellant was taken to police headquarte rs by a co unty deputy sheriff who said that appellant volunteered to him the statemen t, “I guess I'm in trouble for w hat I did.” Appellant denied mak ing this statement. The deputy testified that he had not questioned appellant either before or after the statement was made and that he did not pursue the matter further, other than to tell app ellant th at he d id not wish to talk with someone who had beaten an elderly lady. This evoked no response from appellan t, accordin g to the de puty. When appellant was subsequently questioned at police headqu arters he denied any knowledge of the incident involving Mrs. Smith. He stated that he was partially under the influence of narcotics, but at no time did he admit any involvement in the beating of Mrs. Smith which subsequently resulted in her death. Police officers who took appellant’s statement testified that it was given volunta rily and after appellant was fully advised of his rights. They testified that appellant appeared to be somewhat under the influence of some intoxicant, although they detected no odor of alcoh ol, and all of them testified that he appe ared in full command of his faculties. Tests of his blood later revealed small traces of sedatives, but a toxico logist called on beh alf of appe llant at trial testified that the se we re not m ind-alte ring an d, in the quantities found present in his blood, would not have caused him to appear abnorm al or irrationa l to person s obse rving him . Scientific tests of the blood fou nd on app ellant’s trousers showed that it matched that of the victim, Mrs. Smith, and that it was not the blo od of a ppella nt. Som e bloo d partic les tak en from his fingernails were found to be human blood, but it was in quantities too sma ll to test. A n ana lysis performed at the Tennessee Bureau of Investigatio n labora tories sho wed tha t a fragment of glass found inside the packaging material in which appellant’s trousers had been transmitted matched the glass particles found on the rug and floor of Mrs. S mith’s ap artmen t. Throughout the weeks and months immediately following the death of Mrs. S mith, appellant remained silent and adhered to the position that he knew nothing whatever about the subject. Some seven months after her death, however, in November 1983, he wrote a letter to the District A ttorney stating that he had k nown all

-5- along that two other persons were responsible for her death and had conspired to kill her. He gave a sta tement to the D istrict Attorney, which was similar to his later testimony at the trial, to the effect that Mrs. Welch, who was nineteen years old, was jealous of him and suspected him of being sexually intimate with the 70-year-old Mrs. Smith. He also stated to the police and later testified at trial that Peters disliked Mrs. Smith and that he had heard Mrs. Welch and Mr. Pete rs threate ning to m urder he r. Appellant stated that on April 5, 1983 he had gone to Mrs. Smith ’s apartmen t to borrow som e mone y from her when he happened upon Greg Peters “standing there, s hakin g her b y the ha ir of the head, telling h er to sh ut up.” H e strug gled w ith Pete rs until the latter struck him on the brid ge of h is nose and k nock ed him unconscious. When he recovered, appellant found Mrs. Smith lying in the kitchen and attempted to move her to a couch in the living room but was unable to do so. He stated that he he ard Peters mak ing noise outside bu t by the time app ellant reached the door, someone else had come up the stairs. Appellant advised this other person that Mrs. Smith was injured and needed assistance. He followed this other person into Mrs. Nave’s apartment where he asked Mrs. Nave to call the rescue squad. Appe llant claimed that he was “all to pieces” and so severely emotionally shaken by the events that he needed to talk to someone and decided to go to a mental health cen ter. Unab le to drive sa fely, howe ver, he we nt to the hom e of his forme r wife for assista nce. H e asc ribed h is behavior during the evening to confusion, fear and the effects of drugs. There was much conflicting testimony at the trial as to whether Peters was or was not involved in the homicide, and major issues of credibility of appellant as well as oth er witnesses w ere presented to the trie r of fact. A ppella nt was severe ly cross-examined and im peached with respect to the inconsistency between his conduct and statements on the evening of April 5, 1983, and the statement which he gave to the police seven months later, the latter b eing ess entially sim ilar to his trial testim ony. The jury obviously did not accept appellant’s version of the events surroun ding the h omicide of Mrs. Sm ith and found appellant guilty of murder in the first degre e. The record abun dantly suppo rts that verdict. Mrs. Smith was mercilessly beaten to death by repeated blows by an assailant who was ob viously much more powerful than she. Appellant was shown both by the testimony of Peters and by his own statements and testimony to have been in her apartm ent, from which he fled quickly and without any satisfactory explanation. He consistently denied knowing anything about her homicide or being involved until months later, at which time he presented a rather bizarre and insubs tantial story s eeking to implicate Peters and appellant’s former girl friend, Mrs. Welch, from whom he had by that time becom e estran ged. ... At the sentencing hearing the State introduced several photographs of the deceased in support of the aggravating

-6- circumstance which the jury found to have been established. The State relied upon another aggravating circumstance, that the murder was committed while appellant was attempting to com mit robbery, T.C.A. Sec. 39-2-203(i)(7), but the jury did not find that circumstance to have b een es tablished by the evid ence. Appellant relied upon testimony from his parents, relatives, and frie nds a s well a s him self seeking clemency from the jury. He particularly relied upon mitigating circumstances of the absence of any prior criminal record, T.C.A. Sec. 39-2-203(j)(1), and extreme menta l or emo tional disturb ance (T .C.A. Se c. 39-2-2 03(j)(2)). The jury found that no mitigating circumstance was established sufficient to outweigh the aggravating circumstance established by the evidenc e and s entenc ed app ellant to de ath. The trial judge approved the verdict and overruled post-trial motions filed on beh alf of appe llant.

Id. at 491-9 4.

Because Defenda nt filed his original petition for pos t-conv iction re lief in

March of 1990, prior to the Post-Conviction Procedure Act of 1995 which

heightened a petitio ner’s b urden of proo f, he be ars the burde n to pro ve his

factual allegations by a preponderance o f the eviden ce. McBe e v. State, 655

S.W.2d 191, 195 (Tenn . Crim. A pp. 199 3); see Tenn. Code Ann. § 4 0-30-21 0(f)

(requiring a petitioner to prove factual allegations by clear and convincing

evidence). In addition, findings of fact m ade by the po st-conviction court are

conclusive on appeal so long as the evidence does not preponderate against

these find ings. Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn. 199 0).

I. FULL AND FAIR HEARING ON POST-CONVICTION PETITION

Defendant first argues that the po st-convictio n court viola ted his righ t to

due process of law by denying him a full and fair hearing on his allegations of

constitutional deprivations occurring at trial. Specifically, he contends that the

court denied him a full and fair hearing (1) b y “rushing” his pos t-convictio n

counsel to a hearing sho rtly after they were appo inted and be fore they were

-7- adeq uately prepared, (2) by improperly denying his requests for investigatory and

expert service s, and (3) by im prope rly restricting the evidence he was permitted

to prese nt at the po st-convictio n hearin g.

Contrary to Defendant’s assertion, while we must d eterm ine wh ether h is

rights to due proce ss we re satis fied in the trial court on post-conviction, we need

not necessarily find that he was afforded a “full and fair hearing,” such that he

was granted “every o pportunity to prese nt evidence an d argum ent.” See House

v. State, 911 S.W.2d 705, 711 (Tenn. 1995), cert. denied, House v. Tennessee,

517 U.S. 1193, 1193 (1996). A review by this Court of whether a defendant

received a full and fair hearing at an earlier date is triggered only when that

defendant seeks and is den ied the oppo rtunity to prese nt an is sue o n the b asis

that the issue has been previously determined by a court of competent

jurisdiction. See Tenn. Code Ann. § 40-30-112 (stating that a post-conviction

ground for relief is previously determined, and thereby excluded from further

review, “if a court of co mpete nt jurisdiction has ruled on the m erits after a full and

fair hearing”) (repealed and replaced by Tennessee Code Annotated § 40-30-

206(h)). Following a thorough review of the post-conviction record, we conclude

that the post-conviction court did not violate Defendant’s right to due process.

A. Adequate Preparation Time

The procedura l history of this post-conviction cause reflects that Defendant

filed his original petition for post-conviction relief in March of 1990; and the court

appointe d representation, including Attorney Eddie Lauderback, on that date.

Lauderback represented Defendant with the assistance of a succession of co-

counsel until the court replaced him with the newly created Post-Conviction

-8- Defe nder’s Office on April 30, 1996. The post-conviction court appointed the last

of Lauderb ack’s co-cou nsel, Attorney M ark Slagle, on Ja nuary 5, 1996 . Slagle

continued his representation of Defendant after the ap pointm ent of the P ost-

Conviction Defender’s Office, and they coordinated their efforts on behalf of

Defen dant up to and inc luding the presen t appea l.

The post-con viction court originally set Defendant’s hearing for May 30,

1996, but contin ued th e cas e until June 26 be caus e the n ewly cr eated defen der’s

office could not begin its responsibilities on the case until April 30. One week

prior to June 2 6, defen se cou nsel aga in move d for a con tinuance , and th e trial

court reset Defendant’s hearing for October 1. No other requests to continue

appear in the reco rd. Due to an illness, a defens e expert w itness co uld not tes tify

at the October 1 hearing; and the post-conviction court therefore permitted the

defense to carry over its proof to the second installment of the hearing, held on

Janua ry 14, 199 7.

Defendant charges that “four months” is “woefully inadequ ate” to prepare

for a post-conviction hearing in a capital case. In addition, he insists that

significant evidence remained undeveloped at the time of the hearing.

Specifically, he argues, counsel were not able to (1) obtain and analyze all of

[former] trial cou nsel’s files; (2) conduct continuing social history interviews of

Defen dant; (3) interview others from Defendant’s social history; (4) gather social

history docum ents and records; and (5) consult with experts regarding results of

these e fforts.

-9- The State responds that the post-conviction court was “generous” by

providing trial counsel adequate time for preparation. According to the State,

Defendant had not four months to prepare, but six years, due to the successive

chain of counsel as well as the long-time investigation by Defendant’s attorney

for five years of that time, Eddie Lauderback. The State also notes that the

defense did not request the trial court to continue the case for a specific period

of time.

W e agree with the State that although Defendant characterizes the

procedural history on post-conviction as chaotic, the defense remained

coordinated enough to adequately prepare for the evidentiary hearing in an

approp riate amount of time. Through his continuous, five-year representation,

Attorney Lauderback served as the common thread for what might otherwise

have been a disjointed effort at defen se. Laud erback conveye d the cas e to

Attorney Slagle, who saw the case to the hearing nine months later (and who

continues to serve as Defe ndan t’s counsel) with the assistance of advocates who

specialize in post-conviction capital cases. Finally, Defendant gained additional

time when the trial c ourt continued the proo f for three an d one-h alf mon ths to

permit in-c ourt testim ony by the defens e expert w itnesses .

Based on the facts in the record, we find that the post-conviction court d id

not violate due process by denying Defenda nt additional time in w hich to prepare

for the post-c onviction e videntiary h earing. See, e.g., State v. Cazes, 875

S.W.2d 253, 26 1 (Ten n. 1994 ) (holding th at the trial cou rt did not ab use its

discretion by denying a capital defend ant a continua nce where trial counsel were

appointed to the case two and one-half months prior to trial, prior counsel worked

-10- on case for thirteen months before trial counsel were appointed, and many

continuanc es had be en granted at the defenda nt’s request).

B. Requests for Investigatory and Expert Services

The second tenet of Defendant’s due process claim concerns the post-

convic tion court’s denial of his motion for investigative and expert services.

Defendant cites Tennessee Code Annotated §§ 40-30-215 and 40-14-207(b),

stating, “These statutes require the post-conviction court to grant the services

requested if, based o n the m otion and the evide nce pre sented at the ex pa rte

hearing, the pe titioner m akes a thres hold s howin g of pa rticulariz ed need.” He

asserts th at post-co nviction co unsel m ade this th reshold showin g.

In particular, Defendant contends that the post-conviction court erred by

granting his motion for the e xpert services nec essary to prove that he suffered

deficient representation at trial (the first prong of Strickland analysis on ineffective

assistance of counsel), 1 while rese rving his de cision for fun ding of experts

necessa ry to prove prejudice to his defense (the second Strickland prong). The

post-conviction court explained that if Defendant could not bear his burden of

proof on the issue of deficient represen tation, then the cou rt need n ot waste state

expenses for expert services to pro ve the issue of prejudice—absent success on

the former element, proof of the latter element would not m erit relief from the

court.

1 See Strickland v. Washington, 466 U.S. 668 (1984).

-11- The State responds that the post-conviction court properly denied

Defe ndan t’s motion for expe rt services to show prejudice from deficient

representation at trial. The State note s that the post-conviction court c learly

indicated to Defendant that if deficient representation was shown, funding for

additional services w ould be forthcom ing. Finally, th e State argues that

Defendant was not entitled by law to the services the post-conviction court

granted him—namely “attorney-expert” Ann Short, who testified that in her

professional opinion, the performance by Defendant’s trial counsel fell below the

standard of competent criminal defense attorneys in several respects—because

Defendant’s post-conviction counsel should have, and customarily would have,

performed this task themselves without the assistance of an attorney acting as

an “expe rt on attorn eys.”

1. Motion for Ex Parte Hearing

Tennessee Code An notated § 40-14-207 provides,

In capital cases where the defendant has been found to be indigent by the court of record having jurisdiction of the case, such court in an ex parte hearing may, in its discretion, determine that investigative or expert services or other s imilar services are necessa ry to ensure that the constitutional rights of the defendant are prope rly prote cted. If s uch d eterm ination is made, the court may grant prior authorization for these necessary services in a reason able am ount to be determ ined by th e court.

Tenn. Code Ann. § 40-14-207 (b). The Tennessee Supreme Court has held § 40-

14-207(b) applicable to post-conviction proceedings for capital defendants.

Owen s v. State, 908 S.W .2d 923, 928 (Tenn. 199 5).

In Owens, the supreme court held that the same procedures used pretrial

to obtain an ex parte hearing on a motion for expert or investigative services

-12- apply prior to a defendant’s post-conviction evidentiary he aring. Id. These

procedures, found in Tennessee Supreme Court Rule 13, require a defend ant to

include in the motion for services: (1) the name of the propose d expert or service;

(2) how, when, and where the examination is to be conducted or the services are

to be performed; (3) the cost of the evaluation and report thereof; and (4) the cost

of any other nec essary services, s uch as court ap pearan ces. Tenn. Sup. Ct. R.

13, § 2(B )(10).

Defe ndan t’s initial motion to the post-convictio n court and its supporting

affidavits appear to have been om itted from the reco rd on appe al. However,

because the post-conviction court granted a telephone conference on this matter

prior to granting the services of Ann Short and denying all other services, we

assume for the p urpos e of this appe al that D efend ant fulfille d the R ule 13

prerequ isites for an e x parte he aring.

2. Particularized Need for Services

The Owens court de clared tha t a motion for services should b e grante d if,

at the ex parte hearing, the petitioner “dem onstrates that inves tigative or expert

services are nec essary to ensure the protection of the petitioner’s constitutional

rights.” 908 S.W.2d at 928. To demo nstrate n ecessity, a defendant should meet

the sam e test a s requ ired by courts review ing dire ct app eals in capita l cases:

“The defendant must show that a substantial need exists requiring the assistance

of state paid supporting services and that his defense cannot be fully developed

without such professional assistance.” State v. Evans, 838 S.W.2d 185, 192

(Tenn. 1992); Owens, 908 S.W.2d at 928 (adopting rule in Evans for post-

conviction petitioners in capital cases). Furthermore, a trial court m ay pro perly

-13- deny a motion for services that is “accompanied by little more than undeveloped

assertions that the services were needed to attem pt to coun ter the Sta te’s proof.”

State v. Cazes, 875 S.W .2d 253 , 261 (T enn. 19 94); see State v. B arnett, 909

S.W.2d 423, 431 (Tenn. 1995) (s tating that “[u ]nsupp orted as sertions th at a

psych iatric expert is necessary to counter the State’s proof are not sufficient” to

meet the thresh old showing of pa rticularized need for a non-capital defe ndant).

The “determination of whether provision of expert se rvices to an indigent

capital defen dant is nece ssary to ensu re that th e con stitution al rights of the

defendant are properly p rotected is entruste d to the dis cretion of th e trial court.”

Cazes, 875 S.W .2d at 261 (citing Te nn. Co de Ann . § 40-14-207(b) (stating that

the court “in an ex parte hearing may, in its discretion, determine that

investigative or expert services or other similar service s are neces sary to ensure

that the constitutional rights of the defendant are properly protected”)); see

Owens, 908 S.W.2d at 929 (observing that § 40-14-207(b) “vests with the trial

court discretion to determine if investigative or expert services a re neces sary to

ensure that the mova nt’s constitutional rights are protected”); Thom pson v. S tate,

958 S.W.2d 156, 169 (Tenn. Crim. App. 1997). Therefore, this Court mu st affirm

the dec ision of the trial court un less the fa cts show an abu se of disc retion.

In this case, the record does not contain a transcription of the

teleconference appa rently conduc ted as a h earing o n Defe ndant’s e x parte

motion for services. In Thompson, 958 S.W.2d at 171, this Court announced that

we may not review a decision by the trial court for abuse of discretion where we

are not privy to the presentation of proof mad e by a defendant in support of the

-14- motion for services . Id. Thompson states, “Owens clearly contemplates a

presentation of proof . . . . Without a record of the hearing, this court cannot

determine wheth er [the ju dge] e rred by denyin g the motion.” Id. Likewise, we

cannot examine whether the trial judge abused his discretion in this case without

a record of the proo f brough t before tha t court.

Shor tly before his evidentiary hearing in the trial court, Defendant moved

the court to reconsider its decision to deny his requests for all services except

those of Attorney Ann Short. In that written motion, Defendant relied upon his

earlier motion and its supp orting affida vits, which, a s noted , do not ap pear to

have been included in the reco rd. Upon the ex pa rte hearin g of this m otion to

reconsider, held prior to proof on the first day of Defendant’s evidentiary hearing,

counsel presented no proof but instead requested the opportunity to have Ann

Short appea r ex parte a t a future da te to attest to the need for additional services.

The post-c onvictio n judg e indic ated th at he d id not intend to hear

substa ntive proof from Ms . Shor t in an e x parte proce eding , but tha t he wo uld

treat Defendant’s motion for investigative and expert services as a continuing

one. The judge instructed Defendant that if he proved deficient representation

in the course of the po st-con viction h earing , then a ddition al, necessary services

would be granted. The judge stated, “Ex parte only means you—yo u’ve got a

right to ask the cou rt to give you certain funds for services . . . not to have the

court hear ex p arte any subs tantive evidence.”

Based upon th e foregoing recitation o f authority, we find that the post-

convic tion jud ge m isstate d his authority an d duty to hold a n ex pa rte hea ring in

-15- which Defen dant ha d an op portunity (a nd inde ed a du ty, in order to p revail) to

present concrete facts tending to show a particularized need for the inves tigative

or expert services. However, the post-conviction judge’s misstatement of the law

does not entitle D efenda nt to relief. At the motion to reconsider the denial of

additional services, D efenda nt was cle arly unpre pared to presen t evidence to

show a particularized need for the services. In the absence of a transcript

memorializing the evid ence prese nted a t his first e x parte teleconference,

Defendant cannot bear his burden of proof that the post-conviction judge abused

his discre tion by de nying ad ditional inve stigative an d expert s ervices.

C. Restriction of Post-Conviction Evidence

Defendant next argu es that the trial court impaired his right to present

evidence to support his case at the post-conviction hearing by limiting the proof

advanced during witness Walter William Foster’s testimony. Furthermore, he

asserts the post-conviction judge create d a ho stile atmosph ere at the eviden tiary

hearing by referring to witnes ses A rchie P arlier an d Lou ise Mc Neil as irrelevan t.

In response, the State contends the record demo nstrates that the trial court

permitted each of these witnesses to fully testify. The State posits that the trial

judge simp ly perfor med his function as gatekeeper of admissible evidence and

that although the judge determined some testimony inadmissible based upon

relevancy, he nevertheless permitted questioning as an offer of proof for the

record.

1. Archie Parlier

-16- When Defendant called Archie Parlier to testify at the post-conviction

evidentiary hearing, the State immediately objected on the gro unds that his

testimony was irrelevant (“outside the scope of th[e] hearing”). The post-

conviction judge su stained th e State’s objection, saying, “I won’t consider it as

any substantive proof in the case. I think it’s an impro per imp eachm ent of . . . the

jury verdict, ” and p ermitte d Def enda nt to exa mine the witness by leading

questions for an offer of proof. We find th at the trial court’s comm ents were

within the proper scope of issuing a ruling on the objection to admissibility of the

evidence and therefore not for the purpose or to the effect of creating a hos tile

atmosphere. Moreover, the trial judge permitted a thorough examination of

Parlier as a proffer into evidence notwithstanding the fact that he had already

ruled the testim ony outs ide the sc ope of p ost-con viction proof. Only after

defense counsel had rested and thereafter reconsidered and resumed

questioning did the trial court cease Defenda nt’s proffer. We find no improper

limitation on proof.

2. Lou ise Mc Neil

The post-conviction record reflects that after permitting testimony by Louise

McN eil which, wh en trans cribed, sp anned several p ages, the court sua spon te

inquired into the relevancy of the witness. Defendant’s counsel explained that he

was attem pting to elicit infor matio n kno wn by M cNeil w hich was critical to

Defe ndan t’s case at trial. 2 The trial judge replied, “The . . . issue of guilt and

innocence has already been decided. The S uprem e Cou rt affirm ed it. An d this

. . . evidence is really irrelevant until you show wh y it wasn’t presented . There

2 McNeil offered the opinion that Greg Peters was a violent person and that she did not want to be alone with him.

-17- might have been a good reas on why [McN eil] wasn’t called.” In addition, the trial

judge expressed , “You’ve got to prove whether defense coun sel kne w abo ut this

witness, whether there was some reason he didn’t call this witness and all that.”

Defe ndan t’s post-conviction counsel explained, “[The order of witnesses]

was just a question of trying to work out the convenience of the attorney’s

schedules with the witn ess schedules.” Although th e trial court seem s to have

become increasingly impatient with the order of the witnesses, we can find no

impe rmiss ible restriction of the proof. The trial court permitted McNeil to continue

her testimony; furtherm ore, it appe ars that the court wa s prima rily concern ed with

judicial econom y: “[I]t seems to me that . . . you ought to start off at the top with

. . . that and not subject everybody to listening to what may be irreleva nt proof. 3

3. Wa lter William Fo ster

Similarly, the trial cour t objected to the time at which form er Sh eriff’s

Depu ty Foster’s testimony was given. Defense counsel called Foster to testify

that he had previously been convicted of felonies in Louisiana, information which

was not provided to the defense either before or during trial and which the

defense argues would h ave be en gre atly rele vant to im peac hing F oster’s

credibility at trial. 4 The trial court deemed this testimony irrelevant and ordered

the witness excused until such time as Defendant “proved to [the trial court] that

[Foster’s] te stimon y is mate rial.”

3 The State provided this footnote, which the Court finds relevant to reproduce: “In fact, it would come out during the questioning of trial counsel Ken Baldwin that McNeil was not called at trial because she had no first-hand knowledge of any violent behavior by Greg Peters.” 4 At trial, Foster testified that Defendant had told him on the evening of the murder, “I guess I’m in trouble for what I did.” In addition, Foster testified that he had failed to report this statement to anyone until shortly before trial (over one year after the occurrence).

-18- The trial court later p ermitted Foster to testify conc erning h is convictions

and subsequent pardon by the governor of Louisiana. Foster stated that the

Sheriff of Carter County (the county of this action) knew about his convictions

prior to the trial of this c ase an d that, in fact, J udge D on Lew is, Sheriff Georg e

Papantonio, and numerous other law enforcement officers had written letters on

Foste r’s behalf to the governor of Louisiana recommending that Foster be

pardoned for his crimes. Finally, Foster admitted that he had not revea led his

convictions on his written application to become a Carter Coun ty Depu ty Sheriff.

Defendant has presented no evidence before this Court that the trial court

restricted his post-conviction hearing . In addition, we find no evidence that the

trial court created a hostile atmosphere by ruling Foster’s testimony irrelevant

until proven relevant through other witnesses. 5

II. BRADY VIOLATION

In his second issue, Defendant contends the trial court erred by concluding

that no Brady violation occurred w here the State did not disclose evidence that

former deputy sheriff W alter W illiam F oster h ad be en co nvicted of felon ies in

Louisiana and that Foster had failed to disclose those convictions as required on

his application for employment with the sheriff’s department, among other

docum ents. See Brady v. Maryland, 373 U.S. 83 (1963).

In order to prove a due process violation un der Brady v. Maryland,

Defendant must show that (1) the State suppressed the information, (2) the

information was favorable to the accused, and (3) the info rmatio n was mate rial.

5 Because we have concluded that the trial court did not create a hostile atmosphere with respect to Defendant’s proof, we decline to address whether a hostile atmosphere, in and of itself, can function as a denial of due process in a hearing before the trial court without a jury.

-19- State v. Edg in, 902 S.W.2d 387, 389 (T enn. 19 95). The undisclosed information

is material “only if the re is a reasonable probability that, had the evidence been

disclosed to the de fense , the res ult of the proce eding would have be en differen t.”

United States v. Bagley, 473 U.S. 667, 6 82 (19 85). Fu rtherm ore, a re ason able

probab ility is a “proba bility sufficient to und ermine confiden ce in the o utcom e.”

Id. In Giglio v. United States, 405 U.S. 15 0, 154-155 (1972), the Suprem e Court

held that impeachment evidence falls under the Brady rule. See also, United

States v. Bagley, 473 U.S. 667, 676 (1985); Davis v. S tate, 823 S.W.2d 217, 218

(Tenn. C rim. App., 199 1).

In Kyles v. Whitley, 514 U.S. 41 9 (1995), the United S tates Suprem e Court

clarified the materiality standard set forth in Bagley. Id. at 433-37. First, “a

showing of materiality does not require demonstration by a preponderance that

disclosure of the suppressed e vidence would have resulted ultimately in the

defen dant’s acquittal.” Id. at 434. T herefore , accordin g to the Court, “[t]he

question is not whether the defendant would more likely than not have received

a different verdict with the evidence, but whethe r in its abse nce h e rece ived a fa ir

trial, understood as a trial resulting in a verdict worthy of co nfidence.” Id.

Next, the Kyles Court directed that a defendant “need not demonstrate that

after discounting the inculpatory evidence in light of the undisclosed evidence,

there would not ha ve been en ough left to convict.” Id. at 434-3 5. The m ajority

disputed the conc lusion of th e dissen t in that case , comm enting,

This rule is clear, and none of the Brady cases has ever suggested that su fficiency of the evidence . . . is the touchstone. And yet the dissent appears to assume that Kyles must lose because there would still have been adequate evidence to convict even if the favorable evidence had been disclosed.

-20- Id. at 435 n.8 ; see Strickler v. Greene, 119 S. Ct. 193 6 (1999).

Third, the Court cau tioned that cons titutional errors under Brady are not

subject to a harmless error rule—a notion quite related to the last point of

emphasis, in that a co urt is not at libe rty to conclu de that the totality of the

evidence indicating guilt renders the nondisclosure harmless beyond a

reaso nable doubt. Id. at 435. Finally, the Kyles Court stressed that all

suppressed or undisclosed evidence should be con sidered cumu latively to

determ ine its ma teriality. Id. at 436.

Turning to the facts of this case, in su pport of his assign ment of error,

Defendant argues that contrary to the trial court’s ruling, the evidence not

disclosed was inde ed ma terial. Defen dant co rrectly note s that the S tate

conceded the first prongs of Brady: that the evidence was favorable to the

defense and that know ledge o f the inform ation by sta te law en forcem ent offic ials

is imputed to th e State as pro secu tion. Th erefor e, the o nly issu e for rev iew is

whether the evidence was m aterial. If the un disclose d testimo ny was m aterial to

the defe nse, then Defen dant is en titled to a reve rsal.

In its order d enying p ost-con viction relief, the trial court state d,

In order to qualify as mate rial, there mus t be a re ason able probab ility that the evidence, had it been disclos ed, would ha ve changed the result of the trial. After a thorough review of the evidence presented at the petitioner’s trial, this court concludes that this evidence is not material. There was overwhelming evidence of the petitioner’s g uilt presen ted at trial. Fur thermo re, even if the court were to a ssum e the ad missibility of the evidence of the felony burglaries and Officer’s Foster’s nondisclosure of them on an employment application , the court finds that they h ave little impeachment value in light of the full pardon Officer Foster had received .

-21- In response, Defendant challenges this finding, arguing in his brief that the

trial court’s reliance upon Foster’s official pardon was erroneous because the

pardon did not serve to negate the conviction for impeachment purpo ses, n or did

the pardon eliminate Foster’s duty to disclose the convictions on his employment

application—also evidence Defendant would have used for impeachment.

Defendant conten ds, “Had the trial cour t allowed a full examina tion of De puty

Foster at the post-conviction hearing, [Defendant] would have established that

the Louisiana pardon wo uld ha ve don e noth ing to d iminis h the va lue of th is

evidenc e as imp eachm ent.”

W e disagree with Defenda nt’s impre ssion of th e trial court’s d ecision. F irst,

we find no improper reliance on Foster’s pardon by the trial court. Although

Defendant correctly argues that the pardon could not have relieved Foster of the

legal duty to report his con victions (therefore, the pardon has no effect upon

Foster’s falsification of h is emp loymen t application ), the trial cour t appea rs to

have placed greater importance on the practical value of the pardon in the

perception of the jury, as it would have been used to reha bilitate F oster a t trial.

Second, the trial cour t’s estima tion of the practical im pact o f Foste r’s

convictions, falsification, and pardon were influenced by the significant weight of

evidence against Defendant. Though, as the Supreme Court has instructed, the

sufficiency of the evidence has no bearing on a test of materiality, the strength

of the additional convicting evidence is pivotal in our determination of whether the

suppressed Brady evidence places the case in “such a different light so as to

unde rmine confid ence in the verdict.” See Kyles v. Whitley, 514 U.S. 419, 435

(1995). The post-conviction court in the case at bar fo und th e evide nce o f guilt

-22- so overwhelming that consideration of the undis closed evidence could not

undermine its confidence in the outcome of the trial. We ag ree, and for this

reason we affirm the trial court’s denial of post-conviction relief on this issue.

III. EXCLUSION OF ARCHIE PARLIER’S TESTIMONY

As previously addre ssed, Defe ndant called A rchie Parlier, a juror at his

trial, to testify at his post-conviction he aring. The trial court susta ined th e State ’s

imme diate objec tion tha t Parlier ’s testimony was “outside the scope” of the post-

conviction hearing—an impermissible attempt to impea ch the jury’s verdict.

Defen dant req uested the opp ortunity to proffer evidence to preserve his rec ord

for appeal, and the trial court granted his request, permitting limited questioning.

Parlier testified that the foreperson for the jury which decid ed De fenda nt’s

case discussed with the jury that if sentenced to life imprisonment, Defendant

would “probably” only serve six to eight years before being released. Parlier

stated that had he been assured that a sentence of life would ensure that

Defendant remained imprisoned for his lifetime, his verdict would “[m]ore than

likely” have changed. Furthermore, he ventured the opinion that the other jurors

relied upon this piece of information a s a pivotal issue on sentencing. F inally,

Parlier testified that the foreperson did not indicate where she had learned the

information sh e passed on to the jury.

Tennessee Rule of Evidence 606 provides:

Upon an inq uiry into the valid ity of a verdict or in dictme nt, a juror may not testify 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 ver dict or in dictm ent or c once rning th e juror’s

-23- mental proces ses, exce pt that a juror may testify on the question of whether extraneous prejudicial information was im prope rly brought to the jury’s attention, whether any outside influence was impro perly brought to bear upon any juror, or whether the juro rs agre ed in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

Tenn . R. Evid. 60 6(b).

Defendant argues that Juror Parlier’s testimony, if explored, would have

succ essfu lly impeached the jury’s verdict by proving extraneous prejudicial

information, necessitating a new senten cing hearing. The State argues that

Parlier’s testimony reflected only his mental processes and that the trial court

correctly excluded the testimony as inadmissible. We agree that the testimony

was inadmissible to impeach the jury’s verdict, and we affirm the trial court’s

decision to exclude this testimo ny.

First, contrary to Defendant’s assertions, the trial court did not

unrea sona bly curtail his offe r of proof w ith Parlier. The record reflects that

defense counsel ceased his questioning by stating, “That’s all.” Defe ndan t’s

counsel thereupon stated , “Just o ne m inute, Y our H onor,” and re com men ced h is

questioning. After counsel posed his second additional question to the witness,

the trial court cut short questioning, commenting, “You’ve gone far enou gh with

this. Tha t’s eno ugh.” D efend ant ha d ess entially ende d his p roffer th rough this

witness when he realized his de sire to further explore the issu e. The trial court

permitted Defendant’s q uestionin g until he b ecam e confide nt that the p ost-

convic tion procee dings w ere bein g frustrated by Defe ndant’s a ttempts to

introduce proof wh ich could not secu re him re lief.

-24- Second, the trial court correctly ex cluded Parlier’s tes timony fro m the p ost-

conviction proof. We be lieve the facts o f this ca se are mos t simila r to thos e in

State v. Workm an, 667 S.W.2d 44, 51-52 (Tenn. 1984). In Workm an, the

defendant “presented e vidence that the jury had discussed parole time for a life

sentence, the possibility that defend ant would ne ver be executed, and the

consequences if the jury could not agree on a verdict.” Id. at 52. The Tennessee

Supreme Court recounted that the trial court in that case “found that the

defendant was trying to impeach the verdict and disallowed an offer of proof that

one juror was affected by the irrelevant talk.” Id. The supreme court concurred

with the decision of the trial court, affirming Workman’s conviction and sentence

of death . Id.

Likewise, in State v. Keen, 926 S.W.2d 727 (Tenn . 1994), the defend ant,

in support of his motion for new trial, offered the affidavit of a juror “to the effect

that the amount of time a person would serve on a life sentence was considered

by him and other jurors in reaching their verd ict.” Id. at 738. In concluding that

such discussions do not constitute “extraneous prejudicial information” prohibited

by Ten ness ee Ru le of Ev idence 606, the suprem e court stated, “W e are

constrained to say that qu estion wo uld not be an unu sual one for a jury to

consider an d debate in rea ching a verdict in a ca pital case.” Id.

Our supreme court elaborated on its interpretation of “extraneous

prejudicial information” in State v. Coker, 746 S.W.2d 167 (Tenn. 1987). The

court state d,

Extraneous means “coming from without” and the fact that one or more jurors may ha ve commented about the possibility of defendant employing a third person to murder one or more jurors would not be

-25- adm issible unless the comment included information that the threat originated from and w as transm itted to the jury by an outside source.

Id. at 171. In this case, Juror Parlier testified that the jury foreperson did not

indicate her sou rce of kno wledge . We must a ssum e that she spoke from a

generalized belief that criminal defend ants senten ced to life incarceration s erve

only six to eight yea rs; and w hile this inform ation wa s incorrec t, Defendant is not

entitled to relief absent an outside source of knowledge.

In Caldar aro v. Van derbilt Un iversity, 794 S.W.2d 738 (Tenn. Ct. App.

1990), the Tennessee Court of Appeals thoroughly examined the issue of

extraneo us prejud icial informa tion. Id. at 740-44. The court noted,

External influences that could warrant a new trial if found to be prejudicial include: (1) expos ure to news item s about the trial, (2) consideration of facts no t admitted in evidence, and (3) communications with non-jurors about the case. Internal influences that are not grounds to overturn a verdict include: (1) discussions among jurors, (2) intimidation or harassment of one juror by another, (3) a juror’s personal experiences not directly related to the litigation, and (4) a juror’s subjective thoughts, fears, and emotions.

Id. at 742 (citations omitted). We conclude that the information communicated

by the foreperson of the jury in the case at bar constituted an internal influence;

therefore, the trial court properly exclud ed Parlier’s testimo ny from the

substa ntive evide nce take n at the po st-convictio n hearin g.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

In supp ort of his argum ent tha t his trial counsel were ineffective, Defendant

contends that they (1) failed to identify and request forensic experts, (2) failed to

adeq uately investigate in the guilt ph ase of trial, (3) failed to “kno w relevan t law,”

(4) failed to adequately move to suppress Defendant’s statement to police, (5)

failed to adequ ately investig ate in the s entenc ing pha se, (6) failed to identify and

-26- request sentencing m itigation experts, and (7 ) that the post-con viction court

utilized an inc orrect stand ard to d eterm ine ine ffectiven ess o f coun sel.

To determine w hether coun sel provided effective a ssistance at trial, the

court must decide whether counsel’s performance was within the range of

competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the bu rden o f show ing tha t his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner,

resultin g in a failure to p roduce a reliable re sult. Strickland v. Washington, 466

U.S. 668, 687 (1984); Coop er v. State , 849 S.W .2d 744 , 747 (T enn. 19 93); Butler

v. State, 789 S.W .2d 898, 899 (Tenn. 1990). To satisfy the second prong, the

petitioner mus t show a reas onab le prob ability that; but for c ouns el’s

unrea sona ble error, the fact finder would have had reasonable doubt regarding

petition er’s guilt. Strickland, 466 U.S. at 695. T his reaso nable p robability must

be “sufficient to underm ine confidence in the outcom e.” Harris v. S tate, 875

S.W .2d 662, 665 (Tenn. 199 4).

When review ing trial counsel’s actions, this Court should not use the

bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics.

Hellard v. State, 629 S.W .2d 4, 9 (T enn. 19 82). Counse l’s alleged errors shou ld

be judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S . at 690; see Cooper 849 S.W.2d at 746.

-27- If afforded a p ost-con viction evide ntiary hea ring by the trial court, a

petitioner must do more than merely present evidence tending to show

incompetent representation and prejudice; he m ust prove his factual allegations

by the preponderance of the evidence.6 State v. Clenny, 576 S.W.2d 12, 14

(Tenn. Crim. App. 1978). When an evidentiary hearing is held, findings of fact

made by that court are conclusive and bindin g on th is Court unless the evidence

preponderates against them. Cooper v. State, 849 S.W.2d 744, 746 (Tenn.1993)

(citing Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn.19 90)).

Following the post-conviction hearing, the post-conviction court concluded

that Defen dant ha d not suffe red the ine ffective assista nce of trial co unsel. W e

agree with the conclusion that Defendant received the effective assistance of

counsel at trial and on direct appeal of his conviction, and we address the

argum ents colle ctively.

A. Location of Victim’s Wounds and Bloodstained Clothing

Defendant first states that his counsel were ineffective for failing to identify

and request forens ic experts— specifically, a patho logist and criminolo gist.

Defendant contends that “the evidence these experts would have presented

would estab lish [Defendant’s] innocence by confirming that the attacker was

right-handed and that the blo od sp latter pa ttern on [Defe ndan t’s] cloth es is

consistent with his version of the events and inconsistent with Greg Peters’

version of the events.” Furthermore, he argues that trial counsel were deficient

for gene rally failing to investigate (1) the “left-handed/right-handed” theory that

6 Defendant filed his petition for post-conviction relief on March 23, 1990, prior to the amendment requiring petitioners to prove factual allegation by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f).

-28- only a right-h ande d pers on, G reg P eters, c ould h ave inflic ted the victim’s wounds,

and (2) the manner in which blood left patterns on Defendant’s and Peters’

clothing, to determ ine who se versio n of even ts was m ore likely.

The trial court found, following a “thorough review of the trial record and the

testimony from the evidentiary hearing,” that Defendant “failed to show how he

was prejudiced by any of the alleged e rrors.” Because the post-conviction court

denied Defenda nt the assistance of requested e xperts that he claim ed were

necessa ry to show prejudice, however, Defendant argues that the court’s ruling

was improper. Based upon the post-conviction judge’s continued assurance that

he would provide funding for additiona l expert services if Defendant proved

initially that his trial counsel had been ineffective, we must assume for the

purpose of review that the post-conviction court’s denial of those additional

services indicated that he found no evidence of deficient representation under the

Strickland standa rd.

At the post-conviction evidentiary hearing, Defendant’s trial counsel

testified that he had ne ither recolle ction of no r explana tion for the fa ilure to

explore a theory that the blows to the victim could not have been administered

by a left-handed person (Defenda nt), but must ha ve been de livered only by a

right-handed person (Greg P eters). Defe ndan t conte nds th at this e videnc e cou ld

have exculpated him at trial, had his counsel secured an expert to show that the

victim’s assailant could not have been left-handed.

Had Defendant’s trial couns el been able to sh ow that a left-handed person

could never have inflicted the victim’s injuries, of course, the outcome of the trial

-29- could have be en differen t. However, without more than an assertion that an

expert could have shown that a left-handed person could not have delivered the

blows, we are constrained to hold that Defendant has not shown (and we believe

cannot show) e ither that counsel fell below the standard of care for a criminal

defense attorney or that there exists a rea sonab le proba bility of a differen t result.

Defe ndan t’s trial counsel also testified that they did not investigate the

blood splatters on Defendant’s clothing in an attempt to detract attention from

their existence. We believe this was a legitimate trial strategy outside the scope

of proper review by th is Cou rt. The eviden ce at tria l show ed tha t Defe ndan t’s

pants had blood “splattered” on them, while Peters’ shirt was “smeared” with

blood. It is within common knowledge that a splatter bloodstain would occur from

blood spurting at some force, while a blo od sm ear wou ld arise from contact w ith

a bloo dy surf ace. In this way, the splatter pattern on Defendant’s pants versus

Peters’ smeared shirt supports the State’s theory of the case—that Defendant

inflicted the wounds and Peters attempted to assist the victim in th e afterm ath of

the attack. Therefore, trial counsel’s decision to forego investigation of the

resulting b loodstain s did not c onstitute d eficient pe rforman ce.

B. Failure to Investig ate

First, Defendant contends that counsel were ineffective for failing to

vigorously cross -exam ine G reg P eters, b ecau se Pe ters wa s the k ey witne ss in

the case. The post-c onvictio n cou rt conc luded in general that Defendant failed

to show he was prejudiced by any potentia l errors of co unsel. W e agree with

Defendant that the credibility of Peters was crucial to Defendant’s case.

-30- Howeve r, his contention that counsel’s performance fell below the standard of

care to his prejudice for failing to bring o ut through cros s-examina tion that Peters

was right-handed lacks merit. We find nothing in the record tending to show that

there is a reasonable probability that had counsel shown Peters is right-handed,

the jury wo uld have had rea sonab le doub t about D efenda nt’s guilt.

Next, Defen dant arg ues tha t counse l were ineffe ctive for failing “to

investigate and present evidence that no robbery had occurred, in spite of the

fact that the State’s theory involved a robbe ry-murd er.” Acco rding to D efenda nt,

his trial counsel “should have presented evidence that [Defendant] had no money

when he was arrested,” “should have pursued questions establishing that Greg

Peters had not been searched to determine if he had money,” an d “should ha ve

interviewed and presented Ms. [Louise] McNeil as a witness regarding the fact

that she foun d the victim ’s purse a t the crime scene .” In addition, he claims that

defense counsel sho uld have investiga ted and further d eveloped testimony given

at the post-conviction evidentiary hearing by the victim’s neighbor, Frank Garland,

that twenty seco nds la psed betwe en the time h e hea rd a co mm otion in the

victim’s ap artmen t and the tim e he he ard Gre g Peters call for help.

Again, conscientious decision s regard ing investig ation, dev elopm ent, and

direct and cross-examination are best considered judgments of trial strategy

within the discretion of counsel and not subject to the scrutiny of hindsight.

Furthermore, we cannot conclude there is a reasonable probability that had the

jury known the victim’s purse was found in her bedroom closet and Defendant

possessed no money when he was arrested, it would have had reasonable doubt

whether Defendant killed the victim. Nor can we say that the testimony presented

-31- by Garlan d would have ha d such an effect u pon G reg Pe ters’ credib ility so as to

create reasonable doubt. The evidence at trial stron gly indic ated D efend ant’s

guilt, as noted by the post-conviction court in its Findings of Fact and Conclusions

of Law. We find that Defendant has neither shown his counsel erred nor how he

was prejudiced by any such error, and we conclude that nothing presented thus

far has unde rmined ou r confidence in the verdict of the jury.

C. Failure to Know Relevant Law

Defendant next claims that his counsel were ineffective for failing to know

relevant Tennes see criminal law . He contend s that counse l should have

procured the exc lusion of form er De puty F oster’s testim ony inculpating

Defendant or that counsel should have obtained a continuance. The supreme

court on direct review determined that the statement to Foster was not

discoverable. State v. McNish, 727 S.W.2d 490, 496 (Tenn. 1987). In addition,

we have held that the information presented by Foster was not material under

Brady v. Maryland, see supra Part II; there fore, we find no preju dice to

Defendant. Furthermore, we find no prejudice in counsel’s failure to secure a

continuance upon learning of the new information; Defendant has not proposed

to the Court how a continuance would have created a reasonable probability of

a different re sult.

D. Failure to Adequately Move to Suppress Defendant’s Statement

In his next issue, Defendant argues that trial counsel were ineffective by

failing to adequately move to suppress the statement Defendant made to o fficers

on the night o f his arrest. He ar gues that co unse l shou ld have investigated and

-32- presented evidence to show that he was too intoxicated or impaire d by drug s to

have given the statemen t knowingly and voluntarily.

The State responds by noting that the Tennessee Supreme Court affirmed

the voluntary nature of Defendant’s statement in McNish, 727 S.W .2d at 496 . In

that opinio n, the cou rt stated,

The trial judge conducted a suppression hearing and found that the statement was voluntarily and freely given after appellant had been fully advised of his rights and had signed a written waiver. The evidence supports the findings of the trial judge and certainly does not establish the contention of the appellant that he was so intoxicated from drugs at that time as to be incapable of realizing the conse quenc es of his sta temen t.

Id. Furthermore, the State points out that Defendant’s testimony at trial indicated

he had a clear, coherent, and comprehensive memory of the events on the

evening of the murder. Th e State argues that one may infer from the detailed

nature of the te stimo ny that D efend ant wa ived his right to counsel and right to

rema in silent knowingly and voluntarily, without impairment by the narco tics in his

system.

W e find that Defendant has not shown by a preponderance of the evidence

how he was prejudiced by counsel’s fail ure to further investigate his degree of

intoxication when h e delivere d the state ment to officers. Assuming that such

failure constituted deficient representation, and further assuming that trial counsel

were able to procure suppression of the statement, Defendant has not shown the

reason able pro bability of a diffe rent resu lt at trial. This issu e lacks m erit.

E. Failure to Adequately Investigate and Present Mitigation

-33- Defendant contends that his trial counsel breached the standard of care of

attorneys in cap ital crim inal ca ses to his pre judice by failing to adequa tely

investigate and present mitigation testimony in the sentencing phase of his trial.

He argues that counsel should have requested psycholo gical expe rts to

investigate and testify regarding his extensive history of poor mental health and

substance abuse. He maintains that because of the aforementioned “rush” to the

post-conviction hearing in this case, post-conviction counsel did not have tim e to

adeq uately locate and present this evidence . See supra Part I. We affirm the

decision of the post-conviction judge, who stated,

Petition er’s trial attorneys testified that th ey chos e not to pursue a mental defense at sentencing because it did not me sh with the petitioner’s defense that Greg Peters was the assailant and because much of the petitioner’s psychological history revealed negative aspects of his character that the pro secu tor cou ld capitalize on if mental c apacity was put at issue . His trial attorneys also stated that any history of blackouts that the petitioner may have exper ience d had abso lutely nothin g to do with this case. A review of the exhib its relating to the petitioner’s mental history reveals that the petitioner suffered from long term drug abuse. There is also an escalating pattern of anger control problems noted in the psychological history. Besides the negative aspects of the escalating anger control problems, the reports all state a negative progn osis due to the petitioner’s unwillingness to undergo a proper course of treatment. Furthermore, after a thorough review of the overwhelming evidence presented at trial, the court notes that the petitioner testified extens ively regarding the events leading up to the victim’s death. Thus, the trial court agrees with trial counsel that any history of blackouts that the petitioner may have experienced had very little, if anything, to d o with the e vents relating to this offense. Quite simply, the court concludes that the petitioner ha s failed to meet his burden of proof with respect to these allegations by his failure to show how he was prejudiced by any of counsel’s acts or omissions.

W e agree entirely with the post-conviction court’s exh austive and co mprehe nsive

review of th is issue. T his issue lacks m erit.

E. Improper Standard for Effective Assistance

-34- Finally, Defendant asserts that the post-conviction judge used an improper

standard to determine whether his trial counsel had been ineffective by relying

on an outcome- or result-determinative test for prejudice. As the State notes, the

trial court rec ited in its Find ings of Fa ct and C onclusio ns of Law in this case ,

In order to be granted relief on the grounds of ineffective assistance of counsel, the petitioner must establish that the advice given or the services rendere d were n ot within the range of competence demanded of attorneys in crimin al cases and that “there is a reaso nable probability that, but for counsel’s unprofessional errors, the resu lt of the proc eeding would h ave bee n different.”

(Quoting Strickland v. Washington, 466 U.S. 668, 693 (1984)). Thus, we

conclude that the trial court knew and applied the proper standard to determine

wheth er De fenda nt suffe red the ineffec tive ass istanc e of co unse l.

As our Supreme Court stated in Henly v. State, 960 S.W.2d 572, 580

(Tenn. 19 97),

Because a petitioner must establish both prongs of the test to preva il on a claim of ineffective a ssistanc e of coun sel, 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 comp onent. Strickland, 466 U.S. at 697, 10 4 S.Ct. a t 2069; Goad, 938 S.W.2d at 370.

-35- V. HEINOUS, ATROCIOUS, AND CRUEL AGGRAVATOR

In his next assignment of error, Defendant argues that the post-conviction

court erred by failing to find that the “heinous, atrocious, and cruel” aggravating

circumstance (HAC) for se ntencing wa s unconstitutiona lly vague. The State

contends that this issue was previously determined by the Tennessee Supreme

Court on direct a ppeal. See State v. McNish, 727 S.W.2d 490, 494 (Ten n. 1987).

In McNish, the supreme court concluded that the evidence was sufficient

to show that the murder was especially heinous, atrocious, or cruel and

demonstrated torture an d depra vity of mind. Id. (citing Tenn. Code Ann. § 39-2-

203(i)(5) (repeale d)). It is also ap parent from th at opinion that Defendant

challenged “the constitutionality of the Tennessee statutory provisions respecting

the death pen alty in first degre e murd er case s” on elev en poin ts of law. Id.

Howeve r, because the supreme court declined to addre ss the se sp ecifica lly, this

Court cann ot dete rmine from th at opin ion wh ether D efend ant sp ecifica lly

challenged this aggravator as unconstitutionally vague, as he does in this ap peal.

Therefore , we will not consid er the issu e previou sly determ ined, as th e State

urges.

Nevertheless, Defendant is not entitled to relief on this issue. The trial

court instructed the jurors that to impose the death penalty, they must find

beyond a reasonable doubt that “[t]he murder was especially heinous, atrocious

or cruel in that it involved torture or depravity of mind.” Tenn. Code Ann. § 39-2-

203(i)(5) (repealed an d replaced in 1 989 by § 39-13-204(i)(5), which states, “The

murder was e spec ially hein ous, a trociou s, or cru el in that it involved torture or

serious physical abuse beyond that necessary to produce death . . . .”). Though

-36- the statute no longer contains this form of the aggravator, the Tennessee

Supreme Court has many times affirmed its constitutionality and affirmed death

sentences based upon its application. E.g., King v. Sta te, 989 S.W.2d 319, 326

(Tenn. 1999); State v. Hall, 976 S.W .2d 121 , 162-63 (Tenn . 1998); State v.

Cauthern , 967 S.W.2d 726, 732-33 (Tenn. 1998) (holding that had the jury been

instructed properly—on the pre-1989 § 39-2-203(i)(5) aggravator—the evidence

would have be en sufficien t to establish the factor); State v. Hines, 919 S.W.2d

573, 584 (T enn. 19 95); Hartm an v. State , 896 S.W .2d 94, 10 6 (Ten n. 1995);

State v. Black, 815 S.W .2d 166 , 181-82 (Tenn . 1991); State v. Williams, 690

S.W.2d 517, 526-3 1 (Tenn. 1985) (determining that the instruction was

cons titutiona l, but tha t the evid ence did not suppo rt its applicatio n); State v.

Middlebrooks, ____ S.W.2d ____ (Tenn. 1999) (pre-1989 § 39-2-203(i)(5)

aggravator ag ain found to withsta nd constitutional attac k).

In the second prong to Defendant’s challenge to the HAC aggravator, he

argues that the jury enga ged in impermissible “double counting” when it found the

applicab ility of the “heinous, atrocious, and cruel” aggravator, relying upon State

v. Middlebrooks, 840 S.W.2d 317 (Tenn. 19 92), for supp ort. Th e crux o f this

argument is that the State impermissibly used the sam e eviden ce— blows to the

victim’s skull— to prove b oth (1) the actus reas of the offense of murder, and (2)

the aggrava ting factor w hich perm its the jury to se ntence Defen dant to death. He

contends, “[I]t was the b lows to the [victim’s] h ead tha t ‘hastene d’ the dea th and

therefore the sam e blows , especia lly without so me inte nt that they cause the

victim not to die imm ediately, cannot also be used to p rove HAC .”

-37- In a case featuring a similar argument to the case at bar, the Tennessee

Supreme Court addressed a contention that the same evidence was impro perly

used to support two differe nt statutory a ggravato rs. State v. Hall, 958 S.W.2d

679, 692 (T enn. 1 997). T he co urt initially n oted, “C ontrar y to the d efend ant’s

assertion, Middlebrooks did not embrace the broad principle of double counting

. . . which pre cludes th e use o f the sam e eviden ce to establish more than one

aggravating circumstanc e.” Id. The court nevertheless concluded that the same

evidence had no t been u sed to su pport bo th aggravators, recognizing that “[t]he

jury’s finding of the (i)(5) [HAC] circumstance was based upon the torturous

means by which the defendant chose to kill the victim, and the suffering she

endured p rior to her death.” Id.

W e agree that applying the HAC aggravator requires a jury to consider

whether the instance of murder has been aggravated by the manner and

circumstances surrounding the death—a distinction assisted by the use of the

adverb “especially” and the concept of “torture,” which elevate the level of atrocity

to a degree beyond the means or method of the murder. The foregoing issue

lacks m erit.

VI. ELECTROCUTION AS CRUEL AND UNUSUAL PUNISHMENT

In his next issue, Defendant contends that the death penalty, as carried out

by electrocution, constitutes cruel and unusual punishment. The State argues

that this issue has been waived, and the trial court so found, noting that

Defendant “failed to present this allegation at any p rior pro ceed ing.” T his Court

is constrained to agree.

-38- Tennessee Code An notated § 40-30-206 provides:

A ground for relief is waived if the 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 fe deral or sta te constitution requires retroactive application o f that right; or (2) The failure to present the ground w as the re sult of state action in violation of the federal or state constitution.

Id. § 40-30 -206(g). Defendant did not present this issue upon direct appeal, and

we therefore con sider it waived. Furthermore, the issue lacks merit, as also

noted by the trial court within its Findings of Fact and Conclusions of Law issued

following Defe ndan t’s pos t-conv iction h earing. See, e.g., State v. Pike, 978

S.W.2d 904, 92 5 (Ten n. 1998 ); State v. Cazes, 875 S.W.2d 253, 268 (Tenn.

1994); State v. How ell, 868 S.W .2d 238 , 258 (T enn. 19 93); State v. Black, 815

S.W .2d 166 , 179 (T enn. 19 91).

VII. JURY INSTRUCTION ON MITIGATING FACTORS

In his seven th issue, D efenda nt argue s that the trial cou rt impro perly

instructed the jury at sentencing, resulting in a denial of his right to individualized

sentencing. He alleges that the mitigation instruction given at his sentencing

hearing “failed to adequately inform the jury of its ability to consider non-statu tory

mitigation ,” citing Hitchcock v. Dugger, 481 U.S. 39 3 (1987 ). Defend ant asse rts

that the trial court failed to address this issue in its Findings of Fact and

Conclusions of Law. The State responds (1) that the jury was indeed instructed

that it must co nsider an y mitigation evidence presented, not limited to those

enumerated; and (2) that contrary to Defendant’s reading, Hitchcock holds a trial

court cannot instruct a jury not to consider evidence of non-statutory mitigating

factors.

-39- In Hitchcock, Justice Scalia, speaking for the Court, found that “it could not

be cleare r that the adviso ry jury wa s instructed not to consider, and the

sentencing judge refused to consider, evidence of nonstatutory mitigating

circumstan ces”; and it remanded the case, holding that the proceedings at the

original sentencing did not comport with Skipper v. South Carolina, 476 U.S. 1

(1986), Eddings v. Oklahoma, 455 U.S. 104 (1982), and Lock ett v. Oh io, 438

U.S. 586 (19 78). Id. at 398 -99. La ter, in his dissenting opinion to McKo y v. North

Carolina, 494 U .S. 433 (1990 ), Justic e Sca lia ackn owled ged, “T he prin ciple

established by [Skipper, Eddings, and Locke tt, inter alia] is that a State may not

preclude the sente ncer from considering and giving effect to evidence of any

relevant mitigating circums tance p roffered b y the defe ndant.” Id. at 1245 (Scalia,

J., dissen ting).

Upon a review o f the decis ions of the United States Supreme Court, we

conclude that the trial court did not err by its instruction to the jury regarding

statutory and non-statutory mitigating circumstances. The instruction give n in this

case provided, “In arriving at the punishment the jury shall consider, as

heretofore indicated, any mitigating circumstance which shall include, but not be

limited to the following: [enum eration of statutory factors ].” We follow the law in

this state: that such an instruction, which replicates the statutory terms provided

in Tennessee Code Annotated § 39-13-204(j), not only does not in any manner

preclude the jury from conside ring non -statutory m itigation, but in fact

affirma tively directs the jury that it shou ld consider any mitigating circumstance,

statutory and no n-statuto ry. See State v. S mith, 857 S.W .2d 1, 22 (Te nn. 1997).

VIII. WAIVER OF ADDITIONAL ISSUES

-40- Finally, Defenda nt argues that the post-conviction co urt erred by

considering several post-con viction issue s waived . Specifica lly, he asse rts that

the court improperly considered his arguments regarding the constitutionality of

the death penalty waived because the conte ntions su pported a prope r post-

conviction argument on the ineffective assistance of his trial cou rt for failing to

constitution ally challen ge the d eath pe nalty on d irect appe al.

Defendant provides a lengthy discourse on the law of waiver, and by

footnote indicates that he desires to preserve this issue for later review . Despite

this wish, we need not determine whether Defendant argued below that his trial

counsel were ineffective for failing to challenge the cons titutionality of the death

penalty (which would certainly be a permissible a rgumen t, not subject to waiver,

in post-con viction proc eeding s). Rathe r, we need only recognize what the trial

court held—that none of his challenges to the co nstitutiona lity of the dea th

penalty bears m erit. See, e.g., State v. Cazes, 875 S.W.2d 253, 268-69 (Tenn.

1994); State v. S mith, 857 S.W.2d 1, 22 (Tenn. 1993). Therefore, Defendant has

not and cannot satisfy the prejudice prong of the Strickland test for ineffective

assistance of couns el. See Strickland v. Washington, 466 U.S. 668, 687

(1984). 7

7 To facilitate later review, those issues Defendant argues here (which he claims support a contention of ineffective assistance of counsel) are: that Tennessee’s death penalty statute (1) allows the jury to afford too little weight to non-statutory mitigating factors; (2) does not require the jury to determine that death is the appropriate punishment; (3) does not require written findings of fact relative to the presence of aggravating and mitigating factors, thereby precluding effective appellate review; (4) allows the State to argue last in the sentencing phase; (5) prohibits the jury from being informed of the consequences of a non-unanimous verdict in the sentencing phase; (6) does not allow the correction of misconceptions about the length of a life sentence, parole eligibility, consecutive versus concurrent sentences, the cost of incarceration versus the cost of execution, the deterrent effect of the death penalty, and the idea that electrocution causes instantaneous and painless death.

-41- Because we have concluded that none of Defendant’s issues for review

bear merit, we affirm the decision of the trial cou rt denying post-con viction relief.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ JAMES CURWOOD WITT, JR., JUDGE

___________________________________ L. T. LAFFERTY, SENIOR JUDGE

-42-