Edmund Zagorski v. State of Tennessee

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 6, 2007
• Docket: 01C01-9609-CC-00397
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH 1997 SESSION June 6, 1997

EDMUND GEORGE ZAGORSKI, ) Cecil W. Crowson C.C.A. No. 01C01-9609-CC-00397 ) Appellate Court Clerk Appellant, ) ROBERTSON COUNTY ) VS ) HON. JANE W. WHEATCRAFT, ) JUDGE STATE OF TENNESSEE, ) ) (Post-Conviction - Death Penalty) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

SAMUEL L. FELKER CHARLES W. BURSON JOSEPH F. WELBORN, III Attorney General and Reporter 2700 First American Center Nashville, TN 37238-2700 AMY L. TARKINGTON Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

GLENN R. PRUDEN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

LAWRENCE RAY WHITLEY District Attorney General

DEE DAVID GAY Assistant District Attorney General 202 McClellan Building Gallatin, TN 37066

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION Petitioner, Edmund George Zagorski, appeals from the dismissal of his post-

conviction relief petition. He was previously convicted of two (2) counts of first degree

murder and sentenced to death by electrocution. Zagorski contends the trial court

erred in dismissing his petition for post-conviction relief and presents to this Court the

following issues for review:

(1) whether the jury charge on the “heinous, atrocious or cruel” aggravating circumstance was unconstitutional;

(2) whether he received effective assistance of counsel regarding the motion to suppress his statements;

(3) whether he received effective assistance of counsel due to the failure of counsel to present mitigating evidence at his sentencing hearing;

(4) whether the trial court’s denial of certain expert services and the failure of trial counsel to request other expert services violated his constitutional rights; and

(5) whether the state withheld exculpatory evidence from trial counsel.

Finding that the petition for post-conviction relief was properly dismissed, we AFFIRM

the judgment of the trial court.

PROCEDURAL HISTORY

In 1984, petitioner was convicted by a jury in Robertson County of two (2)

counts of premeditated first degree murder. He was sentenced in both cases to death

by electrocution. His convictions and sentences were affirmed on direct appeal by the

Tennessee Supreme Court. State v. Zagorski, 701 S.W.2d 808 (Tenn. 1985). His

petition for writ of certiorari to the United States Supreme Court was denied on June

30, 1986.

Petitioner’s original petition for post-conviction relief was filed in 1987. An

amended petition was filed in 1989. The actual hearing on the petition for post-

conviction relief was in November 1995 and January 1996.1 The petition was

dismissed by order entered April 19, 1996. Notice of appeal was timely filed, and the

1 The reason for the long delay between the filing of the petition and the actual hearing is not apparent from the record.

2 case was orally argued in this Court on March 19, 1997.

FACTS

It is appropriate to recite the facts as set forth by the Tennessee Supreme Court

on direct appeal:

The evidence shows that on April 5, 1983, the defendant first appeared at the Lakeland Trout farm in Bucksnort in Hickman County, Tennessee. The Trout Farm was managed by defendant's friend, Jimmy Blackwell. The defendant, calling himself "Jesse Lee Hardin," claimed to have been working as a mercenary in Honduras and El Salvador. He was wearing camouflage clothing and was carrying a survival knife, an HK 91 .308 semi-automatic rifle and other weapons and survival gear. Although he claimed to have made as much as $100.00 a day as a mercenary, defendant did not seem to have any money.

During his stay at the trout farm, defendant met John Dale Dotson and his wife Marsha. Dotson and defendant arranged a marijuana purchase involving them and a third man, Jimmy Porter, who lived in nearby Dickson, Tennessee. According to Marsha Dotson, Porter was to pay $23,000.00 for one hundred pounds of marijuana defendant would arrange to have dropped from an airplane into the woods. Dotson was to receive $10,000.00 from Porter for his part of the deal. (Zagorski in a statement to investigating officers stated that the sale was to be of 200 pounds of marijuana at $150.00 per pound). The date of the transaction was to be April 23, 1983.

At about midnight, on April 21, 1983, an airplane flew very low over the Trout Farm. Zagorski, who was with Blackwell, commented "It's here," and left. Zagorski later told Dotson the marijuana had arrived and was in the woods with a man called Dave; that Dotson and no more than two other men were to meet Zagorski, who would be on foot, at 6:00 p.m. at Spot, Tennessee, which was within walking distance of the Trout Farm. Zagorski also told Dotson to come armed.

On the afternoon of April 23, 1983, Porter and Dotson were together at the Eastside Tavern in Dickson, Tennessee. There Porter showed the tavern operator a bank bag containing cash and a .357 Magnum pistol. Dotson and Porter left the tavern in Porter's red Datsun pick-up at about 4:30 p.m. They were never seen alive again.

Also on April 23, 1983, Zagorski left the trout farm, taking his gear. He had been heard to tell Dotson that he would meet him at 6:00 p.m. on the road "up behind Spot." At around 5:30 p.m., Blackwell and his girlfriend heard gunshots from the general area where the defendant had walked into the woods. According to Blackwell, it was not unusual to hear gunshots on a daily basis in that part of Hickman County because of the frequency of deer hunting in the area.

On May 6, 1983, the badly decomposed bodies of Porter and Dotson were discovered in a secluded, wooded area near I-65 in Robertson County. The men had been shot in the chest and abdomen and their throats had been cut.

3 A search of the area turned up a military snake-bite kit, a knife scabbard (later identified as Zagorski's), a case for "Red Specs" glasses (the type worn by Zagorski), six flares, three size "C" Duracel flashlight batteries and an ink pen. Officers also found a .308 cartridge on the ground between the bodies of the victims. Ballistic tests showed that the cartridge had been fired from Zagorski's HK 91 semi-automatic rifle.

An autopsy was performed on the bodies of the victims, but due to the advanced stage of decomposition, the time of death of the victims could not be fixed with any degree of certitude. The pathologist stated that the time of death could be any time from a week to a month prior to the time the autopsies were performed. The pathologist also testified that he could not determine whether the victims were shot or cut first, but that the actual cause of death of each of the victims was the gunshot wounds. According to the pathologist, neither Porter nor Dotson would have died immediately upon being shot, but they would have lived five to seven minutes. The record further shows that at the time of death, Porter had a blood alcohol level of .10 and Dotson had a blood alcohol level of .25.

Johnny Baggett, who found the bodies, testified that a week to ten days before at around 7:00 or 8:00 p.m., he had heard gunshots in the area. When questioned closer about the gunshots, he fixed the time at around April 25 or 26, 1983.

At about that time, Zagorski showed up at the home of Rodney Bruce in Ironton, Ohio, driving Porter's Datson [sic] truck. He also had with him the deceased men's coveralls and Porter's .357 Magnum pistol. While in Ironton, Zagorski spent large sums of cash on survival gear, weapons, horses, a four-wheel drive pick-up, and a motorcycle. At one point he showed Bruce what he said was $25,000.00 in cash. He first claimed he had earned the money working off-shore and later said he had earned it working as a mercenary in South America. He also said he had made a "quick" $10,000.00 in Nashville. Zagorski also told Bruce and an army surplus dealer that he had lost his knife scabbard.

On May 26, 1983, Zagorski, armed and wearing a bullet-proof vest, was apprehended by Ohio law enforcement officers after a shoot-out in which Zagorski rammed a police car and shot a special deputy five times. Over $9,000.00 in cash was found in Zagorski's fatigue jacket and suit.

Zagorski gave different versions of his role in the killings of Dotson and Porter. When he spoke with police on June 1, 1983, he told them that he and another mercenary in their own vehicle had met Dotson and Porter near Spot. Two other mercenaries in a third vehicle had joined them as they drove up I-40. When they stopped on I-65 in Robertson County, the other mercenaries took Zagorski's rifle, silencer and gear and went into the woods with Dotson and Porter. Zagorski was instructed to drive Porter's pick-up to a Welcome Center at the Kentucky border and watch for law enforcement officers. Thirty to forty-five minutes later the other mercenaries met him, gave him $5,000.00 and Porter's .357 Magnum and returned his rifle and gear. Zagorski then left in Porter's pick-up since, he said, it was not unusual to trade cars in a drug deal.

In statements made on July 27 and August 1, 1983, Zagorski claimed he was hired to kill Porter but that Dotson's death was a mistake. He also said that two other men had been hired to kill Porter, that the deaths occurred in Humphreys County and that the bodies were

4 put in plastic bags and carried to Robertson County. Zagorski never admitted killing the men and refused to tell the identities of the other men he claimed were involved. Zagorski told some visitors at the jail that he had only been at the killings to "blow away" FBI agents.

The defense proof was directed toward showing that the killings did not occur in Robertson County. One witness, Ruby Winters, testified that at about 4:00 p.m. on April 23, 1983, she had heard loud music and four shots coming in a wooded area near Spot. Another witness testified as to how the HK 91 rifle fired and how far cartridges were expelled from the gun. This was in contradiction to testimony of state witnesses on the issue.

The jury found from the evidence that the defendant was guilty of murder in the first degree in killing John Dotson and Jimmy Porter. Implicit in the verdicts was a finding by the jury that the killings occurred in Robertson County, Tennessee. In a separate proceeding, and based upon the testimony introduced during the guilt phase of the trial, the jury imposed the sentence of death on the defendant for each killing on its finding (1) that the murders were committed by the defendant while he was engaged in committing robbery of the victims, (2) that the murders were especially heinous, atrocious or cruel in that they involved torture or depravity of mind, and (3) that there was no mitigating circumstance sufficiently substantial to outweigh the statutory aggravating circumstances found by the jury.

State v. Zagorski, 701 S.W.2d at 810-812.

TESTIMONY AT POST-CONVICTION HEARING

At the post-conviction relief hearing, testimony was presented by Jeff Blum, an

investigator; James E. Walton, one of Zagorski’s trial attorneys; Larry D. Wilks, the

other trial attorney; Ted Emery, Sheriff of Robertson County; and Ronnie Perry, a

detective with the Robertson County Sheriff’s Department.

Blum was an investigator in this post-conviction case. He conducted an

investigation of petitioner’s background. This included petitioner’s early years and his

relationship with his family. In substance, Blum found that petitioner had an unhappy

childhood.

Blum also discovered that the petitioner had a prior conviction for receiving and

concealing stolen property and prior drug convictions. In 1981, the petitioner had

federal drug charges involving the transportation of drugs across state lines. The

petitioner jumped bond on these charges. The petitioner had not been convicted of

5 any violent crimes.

James E. Walton, who was trial counsel for the petitioner, testified that he was

appointed to this case. Up until 1982 or early 1983, he was active in criminal work, but

had never handled a capital case before this one. At the time, Walton had been

involved in 15 or 16 first degree murder trials and about 20-25% of his legal practice

was related to criminal law.

Larry D. Wilks, co-counsel at trial, had very little criminal law experience.

Because of his lack of experience, Wilks played a support role in the petitioner’s case.

Wilks had worked on one prior murder case.

Counsel requested that the trial court grant funds for a ballistics expert, but the

motion was denied. Walton testified that a ballistics expert was sought because

counsel did not think the location of the spent shells on the ground was consistent with

the theory that the murders occurred where the bodies were found. The request was

denied by the trial court. Counsel did secure the services of an Army officer who

subsequently testified regarding the trajectory of the spent cartridges.

Counsel also asked for funds to hire an investigator because the events

covered several states. This motion was also denied. This required counsel to

investigate on their own. Counsels’ investigation involved tracking down witnesses the

state had given them. Counsel traveled to Centerville and the trout farm to interview

witnesses. They also went to Ohio, Kentucky, and West Virginia, where the borders

of the three states meet, to ascertain information about the petitioner’s capture.

Trial counsel were granted funds for a psychiatrist. Trial counsel used these

funds to hire Dr. Ben Bursten, a forensic psychiatrist. Dr. Bursten examined petitioner

approximately one week before trial. After a phone conversation with Dr. Bursten,

counsel decided not to call him as a witness. Dr. Bursten advised that there was

nothing he could say on the stand that would help petitioner. Dr. Bursten indicated that

he would have to testify that the petitioner could be a “mean person.” The forensic

evaluation of the petitioner by Middle Tennessee Mental Health Institute also found the

petitioner competent to stand trial.

Counsels’ primary trial objective was to undercut the state’s theory and create

6 a reasonable doubt. Venue was one of the important issues. At trial, counsel for the

petitioner called three witnesses relating to venue.

The petitioner was adamant that his attorneys not talk to nor involve his family.

The petitioner insisted he was not the triggerman and did not want to be convicted of

first degree murder. If he were convicted of first degree murder, however, the

petitioner wanted the death penalty and not a life sentence. For this reason counsels’

focus was aimed primarily at trying to prevent a first degree murder conviction.

Petitioner emphatically instructed counsel not to involve his family, investigate his past,

nor present any mitigating proof in the event of a sentencing hearing.

Because of their ethical concerns, counsel sought advice from the Board of

Professional Responsibility. An advisory opinion was received by counsel which

suggested that the client be fully advised that his desires are in conflict with counsel’s

ethical responsibilities. It was further suggested that counsel seek a ruling as to the

client’s competency to represent himself during that portion of the trial in which the

conflict was imminent, and counsel should seek to withdraw during that portion of the

trial.

In the end counsel determined that petitioner’s wishes were paramount, and

they should abide by his instructions. Accordingly, they did not develop extensive

proof to present at a sentencing hearing in the event of a first degree murder

conviction.

After the petitioner was convicted, counsel talked with the petitioner. Although

the petitioner had told counsel not to argue or put on any mitigating proof, trial counsel

convinced the petitioner to let them at least make an argument.

Before the sentencing hearing, there was a bench conference concerning

requests for jury instructions. Counsel believed the trial court placed limitations on the

mitigating factors that counsel was allowed to discuss during closing argument

because the trial court denied their requests for jury instructions on specific mitigating

factors. Consequently, counsel begged for mercy during closing arguments at the

sentencing hearing.

7 Both attorneys testified that they had good relationships with the petitioner and

met on a regular basis. Neither had any communication problems with the petitioner.

The attorneys believed petitioner was competent and fully understood the ramifications

of his decision in desiring the death penalty if convicted of first degree murder.

Sheriff Emery testified that as part of his investigation, he went to Louisiana,

Michigan, Kentucky, Ohio and West Virginia. Defense counsel had access to the

results of Sheriff Emery’s investigation.

Sheriff Emery obtained a statement from the petitioner when petitioner was in

a West Virginia hospital. Sheriff Emery found that the petitioner was alert and seemed

to have no problem communicating with him. When the petitioner rode back to

Tennessee with Sheriff Emery, petitioner did not complain about his health. When

Sheriff Emery took a second statement on June 1, 1983, the petitioner was alert, he

appeared normal, and his speech was not slurred. Sheriff Emery testified that,

according to his investigation, no one else was involved in the murders.

Detective Perry testified that when the petitioner made a statement to him in the

jail on July 27, 1983, the petitioner was coherent, spoke well, and could understand

him. The petitioner did not appear to be under the influence of drugs or alcohol at the

time. Nor did the petitioner make any complaints about his health at that time.

Detective Perry also testified that the petitioner was alert, able to speak and

able to understand when he gave the statement on August 1, 1983. The petitioner did

not appear to be under the influence of an intoxicant and never complained about his

health or medical condition on that occasion. The petitioner only complained about

being in jail.

TRIAL COURT’S FINDINGS DENYING POST-CONVICTION RELIEF

The trial court filed a comprehensive Memorandum Opinion denying post-

conviction relief. The trial court’s rulings may be summarized as follows:

A.

8 The court found that the jury charge on “heinous, atrocious or cruel” had been

litigated on direct appeal to the Tennessee Supreme Court. The trial court found that

the Tennessee Supreme Court re-weighed the evidence and found no constitutional

infirmity. State v. Zagorski, 701 S.W.2d 808, 814 (Tenn. 1985).

B.

The court found that trial counsel was not ineffective in the handling of the

motion to suppress petitioner’s statements. The court further noted that the issue was

raised on direct appeal and decided adversely to petitioner. State v. Zagorski, 701

S.W.2d at 812.

C.

The court further concluded that trial counsel was not ineffective in their

representation at the sentencing phase of trial. The court found that petitioner was

competent to aid in his own defense and have input into trial determinations. The

court found that counsel followed the dictates of their client’s wishes. The court further

found trial counsel was not ineffective in failing to argue the criminal activity of the

victims, the petitioner’s youth, or the petitioner’s lack of a violent criminal history.

D.

The court ruled that the failure of the trial court to appoint various experts did

not prejudice the petitioner. The court concluded that although a private investigator

was not appointed to assist counsel, counsel conducted an extensive and appropriate

investigation on their own. The court found no deficiency with regard to the

investigation.

9 E.

The court found that certain information relating to the homicides was

developed in other judicial districts and not turned over to the prosecuting District

Attorney General. Although the court noted the need for the sharing of such

information in multiple-jurisdiction cases, the court found that this information would

not have altered the outcome of the trial.

SCOPE OF REVIEW

In post-conviction proceedings, the petitioner must prove the allegations

contained in his petition by a preponderance of the evidence. Davis v. State, 912

S.W.2d 689, 697 (Tenn. 1995); State v. Kerley, 820 S.W.2d 753, 755 (Tenn. Crim.

App. 1991); Oliphant v. State, 806 S.W.2d 215, 218 (Tenn. Crim. App. 1991). Findings

of fact and conclusions of law made by the trial court are given the weight of a jury

verdict; this Court is bound by those findings unless the evidence contained in the

record preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990);

Teague v. State, 772 S.W.2d 932, 934 (Tenn. Crim. App. 1988). This Court may not

reweigh or re-evaluate the evidence or substitute its inferences for those drawn by the

trial court. Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App. 1994). Questions

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

are for resolution by the trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App. 1990).

HEINOUS, ATROCIOUS OR CRUEL

A. Contentions of the Parties

The petitioner argues that the jury instruction on the “heinous, atrocious, or

cruel” aggravating factor was unconstitutionally vague because the trial court failed to

10 include the definitions of the terms heinous, atrocious, cruel, torture, and depravity of

mind. The petitioner claims that the jury instruction failed to narrow the class of death-

eligible defendants as required by Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759,

64 L.Ed. 2d 398 (1980).

In response, the state contends that because our Supreme Court on direct

appeal construed and interpreted this aggravating circumstance in accordance with the

definitions set forth in State v. Williams, 690 S.W.2d 517, 529-30 (Tenn. 1985), the

“heinous, atrocious, or cruel” aggravating factor was not unconstitutionally vague as

applied to the petitioner’s case. The state further asserts that the Supreme Court’s

construction cured any constitutional defect that may have arisen from the fact that the

jury was instructed only in the plain words of the statute.

B. Compliance with Williams

In State v. Williams, our Supreme Court noted “that the court did not instruct the

jury concerning the legal significance of the words ‘heinous,’ ‘atrocious,’ ‘cruel,’

‘torture,’ or ‘depravity of mind’ as those terms are used in the aggravating circumstance

defined in Tenn. Code Ann. § 39-2-203(I)(5)(1982). Williams, 690 S.W.2d at 532.

After discussion of the legal meanings of these terms, the Court found insufficient

evidence of “torture” (the victim had been killed first, mutilated second), but possible

evidence of “depravity of mind” and left the final determination to the jury on remand.

Id. at 525-532. The Court found the statute to be constitutional “so long as the

abstract terms employed therein are construed and interpreted as we have done in this

opinion and other opinions of this Court.” Id. at 533.

In charging the jury in the present case, the trial court did not define any of the

terms in the “heinous, atrocious, or cruel” aggravating circumstance. Instead, the trial

court gave the following instruction:

No death penalty shall be imposed unless you find unanimously that one or more of the following specified statutory aggravating circumstances has been proven on the trial and/or in the sentencing hearing beyond a reasonable doubt.

The aggravating circumstances relied upon in this case are: the

11 murders were especially heinous, atrocious, or cruel in that it involved torture or depravity of mind; the murders were committed while the defendant was engaged in committing robbery of the victims.

State v. Williams was released on May 20, 1985. Although the petitioner’s trial

was held before Williams was decided, the Supreme Court’s opinion in his direct

appeal was released six months after Williams. In finding that this aggravating factor

was properly applied, the Supreme Court stated:

On considering the evidence properly before the jury in this case, we are convinced that it is sufficient for a rational trial [sic] of fact to find beyond a reasonable doubt that the defendant killed John Dotson and Jimmy Porter in Robertson County during the course of a robbery. We are also of the opinion that the finding by the jury that the murders were “especially heinous, atrocious or cruel” is in accord with the evidence. See State v.Williams, 690 S.W.2d 517, 529-30 (Tenn. 1985). Although the victims died from gunshot wounds, the defendant also slit their throats, leaving them to bleed to death in the woods. This evidences depravity of mind and is a form of torture. Defendant’s actions were an infliction of gratuitous violence, and needless mutilation of victims who were already helpless from fatal wounds which indicate a depraved state of mind at the time of the killings. We are also of the opinion that the evidence justifies the jury’s finding that there was no mitigating circumstance which would outweigh the statutory aggravating circumstances found by the jury.

State v. Zagorski, 701 S.W.2d at 814.

The Tennessee Supreme Court decided many cases after Williams in which the

definitions of these terms were not included in the instructions to the jury. In these

cases, the Court upheld the use of this aggravator. Significantly, several of these

cases, including the present case, were tried before Williams, but decided after. See

e.g., State v. Barber, 753 S.W.2d 659, 668-69 (Tenn.), cert. denied, 488 U.S. 900, 109

S.Ct. 248, 102 L.Ed.2d 236 (1988); State v. Duncan, 698 S.W.2d 63, 70-71 (Tenn.

1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 348 (1986). It is also

significant that the Supreme Court held in Williams that this aggravator was not

unconstitutionally vague or overbroad. State v. Williams, 690 S.W.2d at 533; see also

State v. Teel, 793 S.W.2d 236, 251 (Tenn.), cert. denied, 498 U.S. 1007, 111 S.Ct.

571, 112 L.Ed.2d 577 (1990); State v. Thompson, 768 S.W.2d 239, 252 (Tenn. 1989)

(holding that the language “especially heinous, atrocious or cruel” requires, in addition,

a finding of “torture or depravity of mind.”), cert. denied, 497 U.S. 1031, 110 S.Ct.

3288, 111 L.Ed.2d 796 (1990).

12 In Strouth v. State, 755 S.W.2d 819 (Tenn. Crim. App. 1986), this Court cited

the Supreme Court’s opinion in the petitioner’s direct appeal for the proposition that

Williams was not to be applied retroactively:

In State v. Zagorski, 701 S.W.2d 808 (Tenn.1985), decided six months after Williams, the defendant appealed the imposition of the death penalty based on the same two aggravating circumstances as in the instant case. Citing Williams, 690 S.W.2d at 529-530, but with no comment on the jury instructions, the Court agreed with the jury finding that the murders had been “especially heinous, atrocious or cruel.” The defendant had slit the victims’ throats after shooting them, and left them “to bleed to death in the woods. This evidence[d] depravity of mind and [was] a form of torture[,]...an infliction of gratuitous violence, and needless mutilation of victims who were already helpless.” 701 S.W.2d at 814. The Court also rejected the defendant’s contention that Tenn. Code Ann. § 39-2-203(i)(5) was unconstitutionally vague. Id. 701 S.W.2d at 816.

Id. at 831. The Court found that if the Supreme Court “found it unnecessary to give

retroactive application of the Williams definitional jury instruction requirement in

Zagorski, supra, we conclude that it is likewise unnecessary to do so in this case.” Id.

Furthermore, the defective jury instruction was cured by the Tennessee

Supreme Court in the direct appeal. If confronted by an improperly defined

aggravating circumstance, the state appellate court may itself determine whether the

evidence supports the existence of the aggravating circumstance as properly defined.

Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). The

Tennessee Supreme Court has utilized this method of review. State v. Duncan, 698

S.W.2d at 71. The Tennessee Supreme Court has also found harmless error when

the trial court erroneously omitted “depravity of mind” as a part of this aggravating

circumstance. State v. Bush, ___ S.W.2d ___ (Tenn. 1997). The court concluded that

had the jury been properly instructed, it would have found “depravity of mind.” Id.

Petitioner’s contention that his “liberty interest in jury sentencing” precludes a

Tennessee appellate court reweighing an aggravating circumstance is without merit.

Because the Tennessee Supreme Court reviewed the petitioner’s direct appeal

after the release of its opinion in Williams, and because the Court cited Williams in

approving the jury’s finding that the murders were heinous, atrocious, or cruel, this

Court is bound by our Supreme Court’s decision on this issue. See Caruthers v. State,

814 S.W.2d 64, 70 (Tenn. Crim. App. 1991); Harvey v. State, 749 S.W.2d 478, 479

13 (Tenn. Crim. App. 1987); see also Tenn. Code Ann. § 40-30-112(a)(1982)(“[a] ground

for relief is considered ‘previously determined’ if a court of competent jurisdiction has

ruled on the merits after a full and fair hearing.”).

C. Houston Distinguishable

In Houston v. Dutton, 50 F.3d 381, 387 (6th Cir.), cert. denied, 116 S.Ct. 272

(1995), the federal appellate court held that the same jury instruction as given in this

case was constitutionally infirm. The case is distinguishable. Our Supreme Court

decided Houston v. State, 593 S.W.2d 267 (Tenn.) , cert. denied, 449 U.S. 891, 101

S.Ct. 251, 66 L.Ed.2d 117 (1980), prior to its decision in Williams. Therefore, the

Supreme Court did not apply the subsequent limiting construction of the “heinous,

atrocious, or cruel” aggravating circumstance as it did in the petitioner’s direct appeal.

In summary, while the jury instruction on this aggravating circumstance was

deficient without the limiting definitions of the relevant terms, this Court must presume

that our Supreme Court cured any constitutional defect by applying a narrowing

construction pursuant to Williams, which was cited in the Supreme Court’s opinion.

See State v. Zagorski, 701 S.W.2d at 814. This issue is without merit.

INEFFECTIVE COUNSEL - MOTION TO SUPPRESS STATEMENTS

The petitioner contends that trial counsel failed to adequately investigate facts

relating to the statements he made to the police and failed to present important

evidence regarding the circumstances of the petitioner’s statements. Specifically, the

petitioner argues that trial counsel failed to present proof regarding his state of mind,

his medical condition, the medications he was taking, the effect of his medical

conditions and taking of medications, and the circumstances of his incarceration. If

trial counsel had presented this proof at the suppression hearing, the petitioner asserts

14 that the trial court would have found that the petitioner’s statements were involuntary

and subject to suppression.

In response, the state argues the post-conviction court properly held that trial

counsel litigated the jail conditions, the petitioner’s mental and physical state, and the

voluntariness of the petitioner’s statements. The state further argues that the

petitioner has failed to demonstrate any prejudice from the introduction of these

statements because the Supreme Court held on direct appeal that if the statements

were admitted in error, the error was harmless beyond a reasonable doubt in view of

the overwhelming evidence of the petitioner’s guilt.

B. Standards of Review

When a petitioner seeks post-conviction relief on the basis of ineffective

assistance of counsel, he must first establish that the services rendered or the advice

given were below "the range of competence demanded of attorneys in criminal cases."

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the

deficiencies "actually had an adverse effect on the defense." Strickland v.

Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). There

must be a reasonable probability that, but for counsel’s error, the result of the

proceeding would have been different. Id. at 694, 104 S.Ct. at 2068; Best v. State,

708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). Should the petitioner fail to establish

either factor, he is not entitled to relief.

When determining whether counsel’s performance was deficient, “every effort

[must] 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 v. Washington, 466 U.S. at 689, 104

S.Ct. 2065. “Thus, the fact that a particular strategy or tactic failed or even hurt the

defense does not, alone, support a claim of ineffective assistance.” Cooper v. State,

847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). We must defer to trial strategy and

tactical choices when they are informed ones based upon adequate preparation. Id.

15 Moreover, on appeal, the findings of fact made by the post-conviction court are

conclusive and will not be disturbed unless the evidence contained in the record

preponderates against them. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App.

1991); Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden

is on the petitioner to show that the evidence preponderates against those findings.

Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S.

947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979).

C. Our Determinations

A pre-trial hearing was held on the motion to suppress the petitioner’s

statements given on May 28, June 1, July 27, and August 1, 1983. At the hearing, the

state indicated that it would not attempt to introduce the first statement in its case-in-

chief.

The last three statements were taken after the petitioner had been moved to the

Robertson County Jail. Although trial counsel argued and cross-examined the state’s

witnesses concerning the petitioner’s medical condition, his mental condition, and the

conditions of his jail cell, trial counsel did not present any medical records or other

proof. At the end of the hearing, the trial court denied the motion to suppress the

petitioner’s statements.

As argued by the petitioner, the mental condition of a defendant is a significant

factor in determining whether a statement was given voluntarily. See State v. Brimmer,

876 S.W.2d 75, 79 (Tenn. 1994). Whether trial counsel was deficient in not

introducing medical records need not be decided since petitioner is unable to show

prejudice. Our Supreme Court determined on direct appeal that any error in admitting

the statements was harmless error in view of the overwhelming evidence of guilt.

State v. Zagorski, 701 S.W.2d at 812. In order for the petitioner to succeed on an

ineffective assistance of counsel claim, there must be a reasonable probability that, but

for counsel’s error, the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; Best v. State, 708 S.W.2d at 422.

16 This question has been answered by our Supreme Court. This issue is without merit.

INEFFECTIVE COUNSEL - SENTENCING HEARING

The petitioner asserts that trial counsel was ineffective by (1) failing to

investigate and present mitigating proof at the sentencing phase of trial, (2) failing to

fully inform the petitioner of possible mitigating factors and the consequences of his

decision not to introduce mitigating evidence at sentencing, (3) failing to seek a

competency hearing because of the petitioner’s clouded judgment, (4) failing to follow

the guidelines specified in the Advisory Ethics Opinion which counsel solicited, and (5)

failing to make an argument of available mitigating factors.

In response, the state argues that the post-conviction court properly found that

counsel was not ineffective for abiding by the petitioner’s request that counsel not

investigate or present mitigating proof at the sentencing hearing. Moreover, the state

submits that counsel was not bound to follow the recommendations in the Advisory

Ethics Opinion. Finally, the state argues that even if counsel was ineffective by failing

to investigate and present mitigating proof, the petitioner has failed to show prejudice.

B. General Duties of Counsel

In death penalty cases, the sentencer may not be precluded from considering

any aspect of a defendant’s character or record as a basis for a sentence less than

death. Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973

(1978) (plurality opinion); see also Johnson v. Texas, 509 U.S. 350, 361, 113 S.Ct.

2658, 2666, 125 L.Ed.2d 290, reh’g denied, 509 U.S. 941, 114 S.Ct. 15, 125 L.Ed.2d

767 (1993). The United States Supreme Court has held that mitigating evidence is

relevant to sentencing hearings and should be heard. See California v. Brown, 479

U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987); Eddings v. Oklahoma, 455

17 U.S. 104, 113-15, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982). However, there is no

legal requirement and no established practice that the accused must offer evidence

at the penalty phase of a capital trial. State v. Melson, 772 S.W.2d 417, 421 (Tenn.),

cert. denied, 493 U.S. 874, 110 S.Ct. 211, 107 L.Ed.2d 164 (1989); see also Darden

v. Wainwright, 477 U.S. 168, 184-85, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986).

In fact, counsel has properly seen fit not to offer any evidence at the penalty phase in

many death penalty cases. State v. Melson, 772 S.W.2d at 421 (citing sixteen cases

heard by the Tennessee Supreme Court including petitioner’s case).

The extent of investigation required depends critically upon information supplied

by the defendant. Burger v. Kemp, 483 U.S. 776, 795, 107 S.Ct. 3114, 3126, 97

L.Ed.2d 638 (1987); see also Whitmore v. Lockhart, 8 F.3d 614, 621 (8th Cir.1993).

When a defendant has given counsel reason to believe that pursuing certain

investigations would be fruitless or even harmful, counsel's failure to pursue those

investigations may not later be challenged as unreasonable. Burger, 483 U.S. at 795,

107 S.Ct. at 3126.

Our Supreme Court recently addressed the duty of counsel to investigate and

present mitigating evidence in Goad v. State, 938 S.W.2d 363 (Tenn. 1996). In Goad,

the Court found trial counsel ineffective for failing to present mitigating evidence

relative to Goad’s symptoms of post-traumatic stress disorder. The Court further

found that Goad was prejudiced by counsel’s failure to present such proof. In

determining whether Goad was prejudiced by counsel’s deficient representation, the

Court set forth several factors to consider:

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.

18 Dugger, 823 F.2d 1439 (11th Cir. 1987).

Id. at 371.

C. Attorney - Client Relationship

A crucial issue relating to counsel’s performance is the effect, if any, of

defendant’s emphatic instructions not to prepare for or present mitigating proof in the

sentencing phase of the trial. This appears to be an issue of first impression in

Tennessee.

At the heart of the issue is whether counsel should totally disregard the client’s

desires as to how the defense should be conducted. Obviously, there are times when

counsel should not follow the demands of the client. For example, a lawyer should not

fabricate evidence at the request of the client. This is clearly illegal and unethical

conduct. See Tenn. Code Ann. § 39-16-503; Sup. Ct. Rules, Rule 8, Code of Prof.

Resp., DR 7-102(6). However, a client’s request not to present certain kinds of proof

would not necessarily result in counsel’s committing a crime or unethical conduct.

A criminal prosecution is directed against the defendant, not counsel. It is in

fact the defendant’s case, not counsel’s. The purpose of a defense lawyer is to assist

a defendant in making a defense and to represent the defendant before the court.

State v. Franklin, 714 S.W.2d 252, 262 (Tenn. 1986). Although a client may conduct

his or her own defense ultimately to his or her detriment, that choice must be honored

out of “that respect for the individual which is the lifeblood of the law.” Faretta v.

California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).

Furthermore, the authority to make decisions generally belongs to the client and, if

made within the framework of the law, such decisions are binding on counsel. Sup.

Ct. Rules, Rule 8, Code of Prof. Resp., EC 7-7.

Other jurisdictions have confronted the issue of a defendant’s right to direct how

a defense should be conducted. In State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991),

the court found no constitutional violation when counsel complied with the wishes of

the defendant in accepting a juror when counsel suggested otherwise. The court

19 found that the attorney-client relationship is one based upon principles of agency as

opposed to guardian and ward. Ali, 407 S.E.2d at 189; see also People v. Wilkerson,

123 Ill.App.3d 527, 463 N.E.2d 139 (1984).

We likewise find that the attorney-client relationship is primarily one of agency.

When a competent defendant knowingly and voluntarily chooses a lawful course of

conduct, counsel is ordinarily bound by that decision. If the defense is prejudiced

because of a defendant’s choice, a defendant should not later be heard to complain

as to the course the defendant chose. Dukes v. State, 578 S.W.2d 659 (Tenn. Crim.

App. 1978); State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841 (1933).

Having concluded that counsel is ordinarily bound by the lawful choices of the

client, we now turn to the specific allegations of ineffective assistance of counsel.

D. Failure to Investigate Mitigating Proof

Counsel was hampered in their efforts to do a pre-trial investigation in

preparation of presenting mitigating evidence during a potential sentencing phase of

the trial. This was primarily because of petitioner’s adamant instructions not to involve

his family nor present mitigating evidence in the event of a first degree murder

Petitioner contends that trial counsel would have discovered the following

information if they had conducted an adequate investigation for the sentencing phase

of trial:

Zagorski was born and raised in Tecumseh, Michigan, a small town outside Detroit. Zagorski’s mother and father were both of Polish descent. Zagorski’s mother had only a seventh grade education and had suffered a brain injury when she was one and a half years old. She apparently suffered brain damage and was very difficult to deal with in a lot of different ways.

Zagorski’s father worked in a low level job at Tecumseh Engines. The family never owned a car, and they had a small house in Tecumseh. They were a lower income family. Zagorski had few if any friends growing up. Zagorski’s mother was very immature and mistreated Zagorski. Zagorski’s father spent little time with him. Growing up, Zagorski developed a stutter and was embarrassed to speak outside the home.

20 Zagorski is illiterate, having never learned to read or write. Zagorski had a learning disability. Zagorski never received any type of tutors or corrective classes growing up. Zagorski was a very poor student, never graduated from high school and was continuously absent. Zagorski became involved with alcohol and drugs at a very early age.

The failure to fully investigate a defendant’s background in preparation for a

possible death penalty sentencing hearing is ordinarily below the range of competence

demanded of counsel. See California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.

2d 934 (1987); Goad v. State, 938 S.W.2d 363 (Tenn. 1996). However, in this case

the petitioner had explicitly instructed counsel not to confer with his family and not to

oppose the death penalty. Nevertheless, counsel did confer with petitioner’s mother.

Furthermore, counsel had secured the services of Dr. Bursten, a forensic psychiatrist.

As a result of Dr. Bursten’s examination of petitioner approximately one week before

trial, Dr. Bursten told counsel he could not help by testifying and would have to testify

that petitioner could be a “mean person.” The decision not to use such testimony is

certainly understandable and a strategic choice. Cooper v. State, 847 S.W.2d at 528.

Most importantly, we need not reach the issue of whether trial counsel was

deficient in failing to fully investigate defendant’s background if the petitioner does not

make a sufficient showing of prejudice. Strickland v. Washington, 466 U.S. at 697,

104 S.Ct. at 2069; Felde v. Butler, 817 F.2d 281 (5th Cir. 1987). There were two

murders. The jury found two aggravating circumstances in support of the death

penalty; namely, (1) the murders were committed during the perpetration of robbery,

and (2) the murders were especially heinous, atrocious or cruel in that they involved

torture or depravity of mind. Petitioner has failed to establish prejudice for two

reasons. Firstly, there is no showing that petitioner would have allowed the

introduction of such evidence even if it were available. Petitioner was always insistent

not to involve his family. There is nothing in the record to indicate anything to the

contrary. Secondly, petitioner has not shown a reasonable probability of a different

result had the evidence been introduced. While many people have unhappy

childhoods, few commit brutal murders. Strouth v. State, 755 S.W.2d at 827.

Considering the nature of the background information as compared to the strong

aggravating factors, petitioner has failed to show prejudice. Strickland, 466 U.S. at

21 697, 104 S.Ct. at 2069; Goad, 938 S.W.2d at 371.

E. Failure to Present Mitigating Proof

Closely related to the alleged failure to investigate mitigating evidence is

petitioner’s allegation that counsel was ineffective due to their failure to present any

mitigating evidence during the sentencing phase of the trial. As a general rule the

failure to present relevant mitigating evidence would constitute a deficient performance

by counsel. See Goad v. State, 938 S.W.2d at 371. However, the failure to introduce

mitigating evidence does not necessarily indicate ineffective assistance of counsel.

Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987); State v.

Melson, 772 S.W.2d 417 (Tenn.1989).

In this instance trial counsel was faced with adamant instructions from a

competent client not to present mitigating evidence. In view of counsel’s explanations

to petitioner of the ramifications of his decision, the competence of the petitioner and

his knowing and voluntary request that no mitigating proof be presented, counsel was

not deficient in following petitioner’s request. It is not outside the range of competent

attorney actions to fail to present mitigating evidence when the defendant adamantly

endorses that position. Linda E. Carter, Maintaining Systemic Integrity In Capital

Cases: The Use of Court- Appointed Counsel to Present Mitigating Evidence When the

Defendant Advocates Death, 55 TENN . L. REV . 95, 140 (1987). To satisfy the

Constitution, counsel must function as an advocate for the defendant, as opposed to

a mere friend of the court. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80

L.Ed.2d 657 (1984).

The United States Supreme Court has recognized the right of a mentally

competent defendant to forego appellate review. Demosthenes v. Baal, 495 U.S. 731,

110 S.Ct. 2223, 109 L.Ed.2d 762 (1990); Whitmore v. Arkansas, 495 U.S. 149, 110

S.Ct. 1717, 109 L.Ed.2d 135 (1990); Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50

22 L.Ed.2d 632 (1976). If a competent defendant is able to waive the right of appellate

review of a death sentence, we see no reason why a competent defendant may not

also waive the right to present mitigating evidence. Singleton v. Lockhart, 962 F.2d

1315, 1322 (8th Cir. 1992). Counsel is not ineffective at the sentencing phase of a

capital murder trial when counsel follows the defendant’s request not to fight the death

penalty. Autry v. McKaskle, 727 F.2d 358 (5th Cir. 1984); Clark v. State, 613 So.2d

412 (Fla. 1992), cert. denied 114 S.Ct. 114 (1993).

The post-conviction court found that the petitioner was competent when he

made the request to counsel not to present mitigating proof. The evidence does not

preponderate against this finding. In light of petitioner’s knowing and voluntary request

that counsel not present any mitigating proof, we find counsel was not ineffective by

failing to present mitigating proof. Singleton v. Lockhart, 962 F.2d at 1322.

Furthermore, as previously stated, petitioner has not shown prejudice.

Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069; Goad v. State, 938

S.W.2d at 371. There has not been a showing of a reasonable probability that the

suggested mitigating circumstances would have altered the outcome of the

proceeding. Strickland, 466 U.S. at 699-700.

F. Informing Client of Consequences of Actions

Petitioner next contends he was not adequately informed as to mitigation proof.

Certainly, a meaningful discussion with the client is the “cornerstone of effective

assistance of counsel.” Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir. 1983) (citing

Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978)). However, the record does

not support petitioner’s contention. Petitioner was properly advised by counsel at all

stages of the proceedings. Petitioner understood the ramifications of his actions. This

issue is without merit.

G. Failure to Request Competency Hearing

23 Petitioner contends counsel was deficient in failing to request a competency

hearing regarding his decision to forego mitigating proof. Petitioner had been found

competent by Middle Tennessee Mental Health Institute. He was also found to be

competent by Dr. Bursten, the psychiatrist retained by petitioner’s counsel. Dr.

Bursten’s findings were based upon an examination approximately one week before

trial. Counsel had no problem communicating with petitioner. In short, there is no

showing that a competency hearing would have led to a contrary finding. Counsel was

not deficient in failing to seek a further competency hearing, nor has any prejudice

been demonstrated. Felde v. Butler, 817 F.2d at 283.

H. Failure to Follow Advisory Ethics Opinion

Petitioner argues trial counsel was ineffective for failing to follow the

suggestions of an Advisory Ethics Opinion.

Being concerned about the petitioner’s request that they not present any

mitigating proof or argue for a life sentence at the sentencing hearing, trial counsel

secured an advisory opinion. Advisory Ethics Opinion 84-A-255 stated that although

counsel’s beliefs and duties must yield to the beliefs and rights of the client, counsel

was not required to advocate the legal choices on behalf of the client. Yet, the opinion

stated “[c]ounsel is ethically obligated to follow the law and to do nothing in opposition

to the client’s moral and legal choices.” The opinion concluded:

Counsel should fully inform the accused of his legal rights to conduct a defense of his choice as guaranteed by the Constitution. The accused should be fully advised by counsel that his rights and interests are in conflict with counsel’s moral beliefs and ethical responsibilities. In [the] event the accused maintains his instance [sic] on no actions or arguments on his behalf against the death penalty being imposed, then counsel should advise the accused that a motion to withdraw from those portions of the trial will be filed with the court. The consequences of this action should be fully explained to the accused. The court should be fully informed of the conflicts between counsel and the accused. Counsel should seek an adjudication that the accused is competent to represent himself during the voir dire examination of prospective jurors and the penalty stages of the trial or any other portion of the trial where the conflict is imminent. Counsel should move the court to withdraw form [sic] representation during the portion of the trial where the conflict is manifested.

Trial counsel believed that petitioner was aware of the seriousness of the

24 proceedings and appreciated the ramifications of his decision. The evidence supports

the trial court’s findings that petitioner was competent to stand trial, aid in his defense

and to have input into the decision making process. There is nothing in the record to

suggest otherwise.

Counsel chose not to move the court for permission to withdraw during the

penalty phase. They felt obligated to represent petitioner rather than abandoning him.

Although petitioner did not want counsel to do anything, they were able to convince

him to allow them to make an argument on his behalf. Neither the state nor the

petitioner put on any proof at the sentencing hearing.

We do not find that the failure of counsel to move to withdraw from

representation was ineffective assistance of counsel. Petitioner had agreed to allow

counsel to make a closing argument. Counsel followed the lawful directives of a

competent client. A request to withdraw would have been to the detriment of

petitioner. Counsel acted within the range of competence demanded of attorneys in

criminal practice. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). This issue is without

merit.

I. Final Argument

Petitioner argues that trial counsel should have argued to the jury the victims’

criminal activity of selling drugs, the petitioner’s youth, and petitioner’s lack of a violent

criminal history. The post-conviction court found that counsel was not ineffective for

failing to argue these mitigating circumstances. Specifically, the post-conviction court

found that the jury already knew that the case revolved around a drug deal and that

the petitioner’s age (27 or 28 years old) would have been unlikely to have any effect

upon the jury. The court further found that if counsel had opened the door with the

petitioner’s nonviolent criminal history, the state would have countered with a

damaging videotape of the petitioner during an interview with the media in Ohio. In

that videotape the petitioner apparently indicated he did not care about the family of

25 the special deputy he shot at the time of his capture. Since the evidence does not

preponderate against the findings of the trial court, petitioner has not shown that the

results of the proceedings would have been any different if counsel had argued these

factors. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.

The trial court denied trial counsel’s request that it instruct the jury that they

could consider as mitigating circumstances the victims’ participation in a drug

transaction, the petitioner’s lack of a prior record of violent criminal activity, and the

petitioner’s youth. At the same time, the trial court ruled:

I’m going to give the defense great leeway as to whether or not they would go far afield. You would feel free to object. It would not be discourteous, and I’d rule on it at that time, but I do not want to limit them in their argument in a case like this.

Trial counsel believed that because the trial court was not going to charge the

jury on the mitigating factors, trial counsel could not argue them to the jury. Therefore,

trial counsel’s final argument was basically a plea for mercy. Under the circumstances

the plea for mercy did not constitute ineffective assistance of counsel. See Darden v.

Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed. 2d 144 (1986).

DENIAL OF FUNDS FOR EXPERTS

The petitioner contends that the trial court denied him effective assistance of

counsel by denying his motion requesting funds for a private investigator and a

ballistics expert. The petitioner further contends that counsel was ineffective by failing

to request a pathologist, criminologist, medical experts and/or a forensic expert. It is

the petitioner’s contention that experts and investigators would have insured that an

adequate record was developed on the issues presented to, and decided by, the jury.

The state responds that complaints about the trial court’s denial of expert funds

should have been raised in an interlocutory appeal or on direct appeal, and thus, the

26 issue is waived. Regardless, the state argues that the petitioner has failed to show

how he was prejudiced by the trial court’s rulings. As to counsel’s failure to request

additional experts, the state submits that counsel requested the appropriate expert

services and would not have prevailed in further requests. Moreover, the state submits

that the petitioner has failed to demonstrate that this failure resulted in any prejudice.

B. Need for Expert Services

The decision of whether to authorize investigative or expert services lies within

the sound discretion of the trial court. See State v. Cazes, 875 S.W.2d 253, 261

(Tenn.1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995);

State v. O’Guinn, 709 S.W.2d 561, 568 (Tenn.) cert. denied, 479 U.S. 871, 107 S.Ct.

244, 93 L.Ed.2d 169 (1986). The right to these services exists only upon a showing

of a particularized need. State v. Shepherd, 902 S.W.2d 895, 904 (Tenn.1995); State

v. Black, 815 S.W.2d 166, 179-80 (Tenn.1991). "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), cert. denied, 510 U.S. 1064, 114 S.Ct.

740, 126 L.Ed.2d 702 (1994).

C. Facts

In the present case, trial counsel requested funds to hire a psychiatrist, a

ballistics expert, and a private investigator. The trial court granted funds for a

psychiatrist but denied the other requests. The ballistics expert was requested

because the defense wanted to show that the location of the spent cartridges was

inconsistent with the victims being killed in Robertson County. After the request for a

ballistics expert was denied, trial counsel went to Fort Campbell, Kentucky, and asked

Colonel John Oliver to run tests as to the trajectory of the spent shells. Col. Oliver did

27 so and testified at trial that the weapon would not have ejected the shells in the pattern

demonstrated by the state’s proof.

When the trial court denied their motion for an investigator, trial counsel did their

own investigation based on the discovery provided by the state. This included

information provided by Sheriff Emery, who traveled to several states gathering

information. Moreover, at the post-conviction hearing, counsel testified that while it

was a hardship, they did travel to the tri-state area where the petitioner had been

captured. They also traveled to Hickman County and interviewed witnesses in

furtherance of their investigation.

D. Waiver and Prejudice

We first note that the issue relating to the private investigator and ballistics

expert was not raised on direct appeal. Accordingly, this issue is waived pursuant to

Tenn. Code Ann. § 40-30-112(b)(1); see also House v. State, 911 S.W.2d 705 (Tenn.

1995), cert. denied, U.S. , 116 S.Ct. 1685, 134 L.Ed.2d 787 (1996).

Furthermore, petitioner has demonstrated no prejudice as a result of the denial

of funds for the various expert witnesses. No experts testified at the post-conviction

hearing. Without such evidence we are left to speculate as to whether such expert

proof would have been beneficial to petitioner. Davis v. State, 912 S.W.2d 689, 698

(Tenn. 1995). Specifically, there is no showing as to what the testimony of a ballistics

expert, pathologist, criminologist, medical expert and/or forensic expert would be.

There is also no showing as to what significant information a private investigator would

have discovered that was not known by defense counsel as a result of their own

This issue is without merit.

WITHHOLDING EXCULPATORY EVIDENCE

28 The petitioner contends that the state failed to provide potentially exculpatory

evidence to the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,

10 L.Ed.2d 215 (1963). The petitioner contends that trial counsel was hampered by

the prosecution’s failure to hand over certain reports with the names of other persons

who might have knowledge of the murders.

The state argues that the post-conviction court properly held that the petitioner

failed to demonstrate that this evidence would have created a reasonable probability

of a different result at his trial. The state further submits that since one of the

documents was not given to the prosecuting office until eight years after the trial, the

post-conviction court properly held that the document was not known to the

prosecution at the time of trial.

B. Brady v. Maryland

In Brady v. Maryland, the United States Supreme Court held that any

"suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct.

at 1196-97. The duty to disclose extends to all "favorable information" regardless of

whether the evidence is admissible at trial. State v. Marshall, 845 S.W.2d 228, 232-33

(Tenn. Crim. App. 1992); Branch v. State, 4 Tenn. Crim. App. 164, 168, 469 S.W.2d

533, 536 (1969). In United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380,

87 L.Ed.2d 481 (1985), the Supreme Court held that both exculpatory and

impeachment evidence fall under the Brady rule.

Before an accused is entitled to relief under this theory, he must establish

several prerequisites: (a) the prosecution must have suppressed the evidence; (b) the

evidence suppressed must have been favorable to the accused; and (c) the evidence

must have been material. See United States v. Bagley, 473 U.S. at 674-75, 105 S. Ct.

at 3379-80; Brady v. Maryland, 373 U.S. at 87, 83 S. Ct. at 1196-97; State v. Edgin,

29 902 S.W.2d 387, 390 (Tenn. 1995). Evidence is considered material only if there is

a reasonable probability that, had the evidence been disclosed to the defense, the

results of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419,

115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); State v. Edgin, 902 S.W.2d at 390.

C. The Exculpatory Documents

At the post-conviction hearing, the petitioner presented two documents that

were not provided to defense counsel before trial. The first document is an

investigative report prepared by Jeff Long, an investigator for the District Attorney’s

office in the Seventeenth Judicial Circuit. The report contains names of various

individuals with possible knowledge of the murders in this case, and those names were

not provided to the petitioner’s counsel. According to the cover letter dated September

1, 1983, this investigative report was sent to District Attorney General Lawrence Ray

Whitley of the Ninth Judicial Circuit, the prosecutor in this case.

The second document is a letter dated September 29, 1983, to Investigator Jeff

Long in the Seventeenth Judicial Circuit from an assistant district attorney in the

Twenty-first Judicial Circuit. The letter stated that the father of a local resident had

been contacted by individuals in Texas and was “offered the job of killing someone, for

a substantial sum of money.” The local resident indicated that her father turned the

job down; however, she felt certain that it was “the Jimmy Porter - Dale Dotson

circumstance.” This letter was retained in the files in the Seventeenth Judicial Circuit

and not given to the prosecuting District Attorney’s office in the Ninth Judicial Circuit

until years after the trial.

In denying relief, the post-conviction court found that these materials would not

have altered the outcome of the case.

D. Ruling

Certainly, it is regrettable that defense counsel was unaware of these

30 documents. As stated in petitioner’s brief, these documents “contained names as well

as other information which would have been useful to Zagorski’s trial counsel in

investigating the murders.” However, the crucial issue is whether these documents are

“favorable” and “material.” United States v. Bagley, 473 U.S. at 674-75, 105 S.Ct. at

3379-80. There was no testimony at the post-conviction hearing that these documents

led or would have led to “favorable” information. See Foster v. State, S.W.2d

(Tenn. Crim. App. 1996). Furthermore, in order for petitioner to get relief there must

be a reasonable probability that, had this evidence been disclosed to the defense, the

result of the proceeding would have been different. State v. Edgin, 902 S.W.2d at 390.

The evidence does not preponderate against the trial court’s finding that this material

would not have affected the outcome of the trial. In short, there is no showing that the

failure to disclose this information “undermines confidence in the outcome of the trial.”

Kyles, 514 U.S. at , 115 S.Ct. at 1566; Edgin, 902 S.W.2d at 390.

The burden is on the petitioner to prove a constitutional violation by a

preponderance of the evidence. Edgin, 902 S.W.2d at 389; State v. Spurlock, 874

S.W.2d 602, 610 (Tenn. Crim. App. 1993). This he has failed to do.

CONCLUSION

We find no reversible error; therefore, the judgment of the trial court is

AFFIRMED.

JOE G. RILEY, JUDGE

CONCUR:

31 JOHN H. PEAY, JUDGE

JOSEPH M. TIPTON, JUDGE